that abel has language very helpful to your cause but it's a court of appeals opinion and we're trying to predict what the arizona supreme court would do under similar circumstances and there's been a lot of water under the bridge since able in the supreme court of arizona seems to have generally adopted this direct benefits to stop all doctoring in a variety of circumstances not in not in the circumstances of you case we already there's no arizona supreme court case on point but in this case this is a long winded question but it gets to my concern so i apologize in advance in this case what your garnishment seeks to do capris rights against the insurance company so if capri were suing the insurance company today i don't have much doubt it would be subject to arbitration given that you're seeking to fall signatory trying to compile whether they're saving basically directly on the time track itself which more not this is not a direct answer because it was the direct action this court has no jurisdiction it could never have been this case could never been removed there aren't you aren't you suing to obtain rights ears you're suing under the contract you are claiming rights through and under the contract and so there's no extant a court judgment against the insurer you're here trying to benefits of stop all theory that arizona purports to have adopted at its it's stated like a restatement rule easy to apply but my impression is that most of the arizona cases distinguish we then get to the mark and in just the austin case which again rejects any application there and more specifically it says hey you need to look at what was the intent of the parties and so we look at the policy pro and arbitration has already been completed and there is a direct action where that judgment predators need both c c argy the apple e's in this case on and as well as the member that's not the situation here the part specifically said no rights under the policy or can be assigned they did not contemplate they did not want us there are many such a judgement by others are we now this particular case we happen to be our claim is based judgement so there is no litigation or two is there or the single geisha ers because there are other parties involved that's not what happened here it was soley one of our year the judge understood began fairness and even remarked about the unfairness know you're making a significant point but i have a question and i'm afraid of running out of time would a fair statement of the question that you raise and that you have pointed out to us has not been decided by the arizona courts whether a non signatory to an agreement to arbitrate is bound by an arbitration agreement when garnishing from a signatory who is a judgment creditor or judgment debtor i believe that is a fair issue right so ok so you're asking us you're asking us to find it for the st time on appeal as a matter of law yes ok i understand your position thank of the actual arguments they made in the briefing their argument was in the truck and the district court that arizona doesn't recognize these exceptions to the binding  a doctrine called the closely related party doctrine specifically because arizona law does recognize these these exceptions where they cited the d agency veil piercing alter ego stop all rd party beneficiary and therefore there was no reason to adopt this additional theory closely related i was thinking about how garnishment usually occurs the vast majority of garnishment cases in my experience it's a creditor a judgment creditor garnishing the debtors bank account or garnishing the debtors wages in both of those cases there may be an agreement to arbitrate between the bank and the deposit or or between the employer and the are in the employer i've just never seen figure out why this is different from that recognizes that there's there's a subject matter jurisdiction because it's sufficiently separate from the underlying tort claim to be considered a separate independent action and that's recognized ultimately the two big questions we're answering in the laboratory or whether there is jurisdiction and the answer was yes and whether the state ten day limit on a response to the reply applied in the answer was no well yes and no what what blabber to addressed was is the garnishment statute imported into federal court when it's removed and the answer to that was no it's not import under rule sixty nine because that only applies to importing it for federal judgment it's not incorporated under rule sixty four dollars because it's not that only applies to future judgment in the existing federal district court case that's right and and add and also indirectly it's not imported by erie and i say that because under area if you're going to import and we made that argument in lab or two i was the one that briefed it but our erie has to apply those the garnishment statues as as interpreted by the courts of the state and it's undisputed here that a garnishment st of all is not a claim it's a remedy that didn't exist the common law and i quote from the bennett bloom case courts may not allow garnishment proceedings to follow any corps other than that charted by the legislature and also that it is garnishments our statutes under strict requires strict construction and require strict compliance so if you're going to import it under erie the district court has no choice but to apply the garnishment statutes as a whole as the course charted by the legislature so you either have to reject a lab or two which says that the ten day objection doesn't apply because you can't piecemeal it because the arizona law is very clear you have to that your reading of laughter two is is correct still in the end we have to decide whether the arizona supreme court would enforce the arbitration cause under these circumstances do we not  ok so coming to that question let me see if i i want to see where you stand on some issues you do agree that there has been no decision from the arizona supreme court addressing this situation which is to say a judgment creditor attaching an insurance power and touching the debtors claims under an insurance policy that has an arbitration clause there's no  arizona case directly on that issue i would agree ok ok and nd then my question is why should given that and given what appears to be some contrary indications in the arizona law the able  which i understand doesn't bind us because it's a court of appeals decision why isn't the best course of action in this case to certify this question to the arizona supreme court and let them clarify their own law well the point that they made in their brief was that arizona when i ask how they said in their brief i've read i'm really not concerned with whether mr schwartz got the argument right or wrong i'm interested in what why we shouldn't the three judges certify this question to the arizona supreme court because the g t f k's recognized that the exceptions to the non binding non binding or binding about signatory recognized and under arizona so what right but he didn't decide whether the exception applied in a garnishment proceeding that seeks to garnish the insureds interest under an insurance policy with an arbitration clause so i understand it i take it i take it is as established even before j t f that the direct benefits or stop overrule was something the arizona courts might apply the question is whether they would apply it to th facts so i'm still stuck with the question of why and i must admit some bias on this having been a state supreme court justice that i was was concerned when the federal courts decided questions that i thought were lea close but i know it's our duty well given that we have this procedural mechanism why shouldn't we just ask our friends in arizona to resolve this issue his view issue can be resolved i mean once it's recognized that the exceptions apply generally to contracts and under the federal arbitration act garnishments have to be on the equal footing to any other can contract laws as u nder arizona law and they admit in their briefing that these exceptions do apply generally under contract law but just not the garnishment by doing that they run afoul of the eighty and the mobility case that says that no you can't treat garnishment separately because that's that's kind of as a threat getting through the t n t concepcion case i'm wondering why if we don't certify we shouldn't  treat able as the best predictor of what the arizona supreme court would do because abel didn't address any of the exception and that was noted by the later court of appeals cases abel just quickly said well there's that why is that why i asked the question to mr schwartz so we would have to find it to be clear error or the district court or played error for the district court not to have so a spontaneous found this argument wa that's correct that it's pretty tight and so on the merits of this argument what interests me is that there's obviously some point at which waiver occurs i'm not sure it was reached in this case what's your view about how much has to occur in the district court before we get a waiver well i will tell you that if you look at all of the cases well st of all we fight a litany of cases that that when you assert well that that's a little different if if you look at all of their cases except who and i'll get to those the what happened was the the proponent of arbitration waited several months if not years to st assert the arbitration clause after undergoing a lot of litigation or in the case of the sloan cotton sloan case they waited until after a final adverse judgment on the merits so in every one of their cases but who they waited until they lost a motion or someone ruling on the merits and then they chose to do not understand what the cases say i was trying was trying to figure out what your position is so my your position is having asserted the right to arbitrate early on you you could have been litigated the case to judgement on the merits and still that waived your arbitration defen no that is not our position our st of all our position is we we not we raised with it every stage every every you know right now i'm i'm not asking i'm just trying to figure out what from you where is the dividing line i understand your position is that you did everything you should have done i'm just trying to figure out where the good lighting right is when you you wait to reassert it until you have an adverse ruling on the merits we purposely did not do that we never break anything on the merits if you look at our twelve highlighted we did not ask for a ruling on the merits of these things subject to the guard of the arbitration clause and then when they file their sort of motion less than seven months after the judge's original denial we that it's too late to now make the motion or renew the motion because you don't like how the judge ruled against you or somewhere down the line that's never happened here mr service your time's expired unless one of my colleagues has questions mr schwartz you have a little bit of time left for abo so i guess i don't understand why if you're here trying to take advantage of that contract you're going to try to argue for the things in that contract that help you but you're going to have to take the things you've done and one of those seems to be the arbitration clause that's exactly what virtually impending other questions for my colleagues if not i thank both counsel for their good briefing and good arguments and this case will be submitted we will be in recess until tomorrow