good morning your owners who may please the court and geyser on behalf of sibley austin i plan to focus on the issues related to this court's jurisdiction they'll barnes on behalf of keep him he will focus on the merits this court has jurisdiction over th c after deciding the federal claim their argument has been flatly rejected by every circuit to continue to consider the issue and along an unbroken string of decisions in these courts including this court have determined that jurisdiction is determined at the time of removal so that when removal is proper at the outset a later decision or later change or development this does not result in a lack of jurisdiction and that necessarily includes a later dismissal of a federal claim which is court held in price set because your stiction has the power to decide a case either way a decision that that a claim fails is not a decision that the court lacked jurisdiction and applying that principle here because this case was properly removed in the district i believe you would if yes that's correct so but in that case the only reason this court would lose jurisdiction is because the court found in our favor they enforced arbitration rights so the second order where the court where the court found that the decision by the the remove the case from arbitration that's is effectively denial of arbitration rights so that decision itself is independently pill but we are under sixteen under section sixteen that's correct and then we also have jurisdiction to reach that decision arbitration under the rule that a remand order which is a final order allows this court can or view that order and to review any decision that precedes it and the decisions proceeding and that in this case include the court's decision that the  decision came before the remainder you know you're either the true basis for this court's jurisdiction and this is a well established line of a lot of cases is that if there's jurisdiction at the time of removal i understand that i'm with you on that  three claim on appeal ok we've got to have some jurisdiction in order to review the n a s d ruling that's correct  twenty one covers a remand ordered because that's the supreme court explained it's a final decision for purposes of federal court at that point the case is terminated in federal court and it goes back to state court and as with any other final order the court has jurisdiction treeview both the final judgment any order that preceded that judgment in the case you don't mean that literally do you or at least in your reply brief in response to the argument that the plaintiffs seek to bring up in effect challenging the arbitration decision in the first instance where we suggest well that's a ground that's not properly before us so where is that line drawn we agreed that ordinarily that decision would be subject to review but for section an agreement the falls under the convention not one that's actually subject to the arbitration agreement and plaintiffs in effect or acts asking this court to rewrite the statute congress deliberately created a broad removal provision so that any case that is conceivably multi state basis are you know asked are you now arguing the issue that really isn't before us where the removal was proper in the first instance noted that there were other cases saying before the rules meant before there's a problem with that reliance on those cases well solomon almost looks like like an outlier in the cases so solomon n standing no are you saying that the clause in question is neither a selection clause nor an exclusive selection clause are you saying well it ain't an says that when you say under the rules that means rules not form and that's a key distinction from salaman you know dish and in our case it is elective unlike salamon where the language was much more the option wasn't your client your honor i think it was actually because it says at the undersigned you may have left i agree that that is confusing everywhere else in that contract undersigned refers to in parties every well or where else in that contract you refers to d d s i so i agree that there is some confusion or of of customer agreements being what they are i can't believe that the deutsche bank securities or whatever it was called was able to retain the selection of form decision that that decision as i understand it almost always goes to the customer your honor i think the customer has the option to allege that in the first instance in a second instance it says if you do not make the together and say you know we're going to we're going to arbitrate this under the rules of the n a s d to say they're not even contemplating the that's where the arbitration is going to take place assuming the n a s d will do it and i think it may not be honor i think the most of the balance of the cases are situations where there is not an availability for instance the lucky case the question was do you have to go to one of these three fo i don't think that they had anything least as i read the opinion the court didn't have anything before it other than the arbitration clause i didn't see any extrinsic evidence or other evidence that that meant that arbitrating before the n y s e was as important as arbitration contrast brown case where again the court had a very similar clause in front of it and said well we're going to yes of course you appoint different arbiters because there is no additional evidence to show that that intent to arbitrate in front of that particular forum is as important as arbitration itself and then finally i would just like to say that we just of course here looked at the contract and said that well there's a reference to the panel typically including a minority of arbitrators from the securities industry that is solomon case what state law pertains if you're to decided under federal law your honor because they specifically rejected the application of the new york president saying that arbitration under the rules means rules not for four order we don't think that's appropriate for several reasons first of all i do think that nine u s c section sixteen c at least as a policy matter indicates that the time for reviewing an order compelling arbitration is after the are two bases for invoking equitable stoppel the complaint raises allegations of substantially intertwined and concerted in this conduct in particular the complaint alleges allege that all defendants for agents of each other defendant and that they acted as a scheme and in addition they have acted they've alleged that at all times defendants were the agents of each other so i think that again without these thrown into a pot where i would have an arbitration with my broker on account of not placing stock the way i wanted him placed all of a sudden now we've got in front of an arbitrator who does that kind of thing we've got this whole unrelated i wouldn't say that it's unrelated your honor in this considered discretionary removal and it's not subject to fourteen forty seven c there are no cases that i found where a court remains finding it has no jurisdiction which is kind of the case here judge phillips clearly remained on the events that happened subsequent now correct and i think under the authority the u s supreme court and ninth circuit that that would not make a difference for the reason that  remain and the lack of subject matter jurisdictions and in the case of the state that's not to reveal the order whether rightly or wrongly it was not a case where you could look through the order to see whether the characterization of it is proper  removal i had it up until now but as of right now given stuff that happened after the action was removed i no longer have it i don't know is it flow is jurisdiction floating i mean is removal jurisdiction of floating concept now you're saying so whenever she says you know i just don't think i've got it anymore i think in this case nothing tha my daughter was an auto accident yesterday and therefore i don't have jurisdiction on me manning it yeah i know i don't have jurisdiction anymore because my daughter had an auto accident so i'm going to remain the case and  example that's what i do i'm not a street judge and i've got removal jurisdiction and i'm going along trying the case and i think my daughter had an auto accident today i don't have jurisdiction anymore i'm going to remain and you're saying federal district judge to conclude that the federal just lack of jurisdiction from the beginning so it's you're absolutely correct there are some post even occurrences that are that do let's say the safer than just in my special universes that's not even within our cognisance this we just said we have jurisdiction now the district judge says i don't have jurisdiction anymore and got a bunch of state claims against these folks i'd like to do just that it's hard to justice without starting from the position that there is no arbitration agreement between the appellant's and k p m g or simply the two parties standing here so talking about the intent of the parties they had no intent that came up in these down the case in the sense that they said no then it goes to court it came up into california cases state cases which we decided to the court it came up in a district court case in this california northern district needs to be going now and  parties and it's to be enforced it's considered explicit let me ask you on that point because i don't think any of these other cases acknowledge they had a severability clause in this related to it and off you go orders here somehow once the orders here you think we should entertain other arguments it's certainly worked out that's an unusual situation is there any authority it speaks to that's what the case is that say that simply the case is the general case of this day and order can be appalled and any alternate grounds and for judicial economy it would make no sense for us to wait two years to come up here and then only to review judge phillips order when i think there's a serious issues with respect to chose to his order since that court of arbitration and come back is not as important in this case there was no intent of the parties to arbitrate none of the parties even had an arbitration agreement and i think you have to look to the fact that the only judge of bank defendant in this case was the bank the only wrongdoing  appreciate but let me ask you a question about th that effectively stops the transfer of jurisdiction from the state from the federal court to the state court already happened and i mean here's here's the problem i've got with it in effect what you're asking is for us to enjoy only proceeding on the authority of the jurisdiction when the remainder of it was transferred back to the state court if that legal effect the legal effect of remanding the case is stated then the speaker doesn't have jurisdiction to proceed at all so it's not a situation where you have parallel by entering the state order then the state court doesn't have jurisdiction at all there's nothing to enjoy so he thinks he was lying or would you care to respond on that