this court has not changed fraudulent jointer jurisprudence plaintiff gets every inference every benefit of the doubt and any ambiguity at all about state law is decided in favor is obvious according to the settled law of the state the burden is not on us the burden is on the move and the strong presumption is against removal jurisdiction and as i stated all inferences and all ambiguity s are drawn in favor of the plaintiff if the claim against the resident defend cause of action itself was negligence their award is not even a cause of action it's a theory of negligence let's say that we agree with the district court that the complaint the way that it was alleged was insufficient so what you're complaining about next is that you should have been allowed to  correct no no because as the law is we can't amend you have to go by the complaint that was filed in this in the state court the question is would this state court allow original compliant state a claim and your argument is if a potentially could state a claim under the facts if i'm understanding argument then the fraudulent jointer doctrine doesn't apply is that what your argument is as long as a claim is possible that's what you do and the reason is simple the reason is for all the sex it gets dismissed it has to be impossible if a claim is possible at all it gets remand because assume hypothetically that that really the claim is not played at all i mean is your theory that the district court is obligated to look behind what was actually pled and determine whether or not there's a plausible stake or action well i would instead of a fraudulent joinder analysis somebody filed it will be six we get a chance to amend that's why and clean up any deficiencies any problems things like that that's why under the fraudulent jointer analysis you should get a chance to amend i don't mean that where we factually file an amendment but where the court has to look at the complaint say wait a second if they amended to clean up a deficiency whatever that deficiency may be sure there's a possible cause of happens after the district court determines that there's fraudulent john that's true neither would you the district there's nothing preventing the district court from granting a just record from granting leave to amend after of the case is properly in front of the district court well that's true was incorrect and what you were implying is that you said it that the result is the case gets dismissed that's not necessarily so i mean let's assume for the sake of argument that the district court correctly determined defeats the purpose of the possibility rule as long as there's a possible if there's a possible claim this court always says go back so if you're going to allow an amendment to bring these people back in what do you do then there was a stand on the original complaint right right but the thing about standing on the original complaint is the question is not whether you actually pled a plausible perfect complaint the question is whether or not in state court they would allow you to amend to clean up any deficiencies so that there will be no issues so leaving that argument aside i gather you're still arguing that that concede that that's right and we don't have to plead a theory the vast u s supreme court law says we don't have to plead a theory and in fact the the shelby case specifically said that just just recently cited right miller and quoted the federal rules effectively abolish the restrictive theory of the pleadings doctrine making it clear that it is unnecessary to set out a legal theory for the plaintiff's claim of  relief that's in the shelby case so your honor i agree we didn't play the theory we don't have to all we all think the entire point of notice pleading and yvette the entire point get a chance to amend to clean it up that's why this should be remanded because we put them on notice we did what we were supposed to do that's why you're two hundred person time i do to m may please the court my name is eric swann and i represent santa fe event to the police in this matter for context your honor this leone's counsel who joined in the briefs has ceded his time to myself and mr johnson and i'll be taking nine minutes your honour's i want to start with what you have correctly identified as the erroneous standard for fraudulent jointer that the plaintiff has  articulated in this case the standard for fraudulent joinder in the ninth circuit is that the plaintiff fails to state a cause of action against the resident defendant and that failure is obvious according to the subtle rules of the state it is not that the plaintiffs have failed to state a cause of action and would be denied the ability to amend in state courts let let's talk about that whether it was obvious under settled rules of the state why isn't what counsel said at the end of his presentation correct that all he needed to do in order to move forward to the next stage in nevada state court was to lead to a duty of care and that his client was a patient and first i would say that under the courts the cases that we cite the correct standard should be that federal pleading standards apply in federal court but even if the court probably need not even reach that issue because while nevada is a notice pleading state so is the federal courts and in fact their rules mirrored largely the federal rules and the cases in a battle last state for example that notice pleading requires the set forth facts which support a legal theory and in this case there were absolutely no facts pled to support and the district court correctly found that there were no facts pled to put anyone on notice of this general malpractise claim for failure to diagnose mr qualls new skiis suicidal note nowhere in the complaint did it say he was suicidal and on march fourth when she saw him nowhere did it say that she failed to diagnose him a suicidal suicide and the fact is notice pleading at it's basic requires you to be on notice of what the claim is nobody in this court in this case ever was on notice that there was a malpractise claim for failure to diagnose warrant is it your position that there could never be a failure to warn claims they did against their best because their lack of training in prescription medication or just under the circumstances as played in this all i would say your honor that under settled nevada law there is no duty for a marriage and family therapist to warn about the risks of medications prescribed by another doctor in the leading case which is class versus walgreens the nevada state state court adopted what is called the learned intermediary doctrine and one note that the plaintiffs mention this in their in their in their briefing as in the affirmative defense it is not an affirmative defense it is a statement of nevada law that essentially says the duty to warn for prescription medications runs from the manufacturer to the doctor and it is there  doctor's determination of prescribing physicians who is medical training the knowledge of the individual patient's condition the knowledge of the risks and benefits of the medication to take all of that into account and decide whether or not to prescribe it to the consumer the manufacture has no duty to warn the consumer it runs from that main factor to the doctor to the to the patient and in this case in the reason for that is essentially for example  they recognize only a limited exception only for pharmacists and they found that that requiring other health care providers to warn about the risks of a medication prescribed by others forces them in many instances for example a pharmacist to practice medicine without a license to interject themselves into the doctor patient relationship and to second guess decisions made by a prescribe a doctor who is in the best position at the time with the training to weigh the risks and benefits so yes i would say under such settled nevada law the duty to warn for prescription medications is with the prescribe in physician and that defines the duty and i gather from your answer that you would agree that if the learned intermediary doctrine or an affirmative defense and we could not consider it on the question of the five roger one joinder yes that would be correct but but but you know  defines the duty to duties who has the duty to warn about prescription medications if that it's are often some confusion with that but it is in fact an element of who has the duty toward well  that particular case what i'm thinking about is let's say somebody goes to a therapist and is heavily on prescription medication that's known to cause suicidal thoughts and tells the therapist i'm feeling very suicidal and these are the medications that i take and alleges that general malpractise theory that under the standard of care for therapists within that profession that there that there should be knowledge that these drugs may cause side effects could theoretically could a plaintiff bring that sort of action under nevada law i would say no under nevada law the only two people who have a duty are the prescribers and the pharmacists and even the pharmacist i think what you're alluding to is sort of is kind of like a klausz exception where the individual that's legal malpractise case where there's a certain standard of care within the community whatever that standard of care is has there i think that's to be demonstrated at trial with expert testimony and so forth and a claim that there was a breach of standard of care because of the therapist with known of this particular side effect given the what the patient is reporting to their present that time so you kind of try it as a regular malpractise case right i would say no because under nevada law it is the duty to warn runs or as is limited only to the prescribing doctors and to the pharmacists does not and in fact warning about risks of prescription medication is practicing medicine without a license under nevada statute and therapists are precluded from practicing medicine without a license and that is outside their suicidal at the time and in fact made it later tonight in their pleadings for a motion for partial summary judgment that she had any knowledge or that he was even suicidal at the time so even if that exception applied it wouldn't be met here but to go back just briefly to the fraudulent join standard that the cases they cite for the proposition that you can amend that the standard should whether you would be allowed to amend has its genesis in the case i believe of nickel barry versus dima chrysler they cite no case law to support that and that standard your honour's is simply unworkable that would require a defendant in a district court let's say we get a case and we go to remove one fraudulent jointer not only would we have to say the claims in state court  complaint fill a state of cause of action but so what hypothetical claims for implied warranty of merchantability implied warranty for specific purpose fraud negligence it's not the duty of the defendant to to look at what was played and then look in the universe of everything else that could be played and say look i've gone through everything they can establish any cause of action even the ones that they haven't alleged it's based your honor is noted on the face of the complaint as as  morning hours may please accord michael johnson representing defendant in app ellie behavioral health care options and which has been sued based on the theory of vicarious fault only for the marriage and family therapist leone alleged misconduct like to address a couple of comments that were made by the court one was the there was a comment that amendment may be permitted under rule twelve b six after there is a finding of fraudulent jointer i would submit that once there is a finding of fraudulent joinder if that amendment is not governed by the twelve the sixteen entered it would be governed by the standard under twenty eight u s c section fourteen forty seven subpart be which gives the court broad discretion  consider whether to allow amendment when a new defendant who is being brought into a case to destroy the court's jurisdiction is proposed so well i was actually talking about the memo for the theory not to add a defendant or party  ok in my point is simply once the fraudulent jointer finding is made and jurisdiction is established then bringing in a new defendant would trigger the fourteen forty seven standard the second is in regard to whether an a limitations defense as the basis for finding that the claims against the defendants the diverse defendants in that case were sham claims now the court did specifically say they were not resolving the issue of whether or not an a from a  in my view considering an affirmative defense would be appropriate given the purpose and reason behind the fraudulent jointer rules which is to really go beyond the pleading to see whether these settled state law then there is fraud on jointer i don't think there's a dispute about that standard i want to emphasize in the two minutes we have remaining the procedural posture of the case and the importance of that there were three orders that were certified for review under rule fifty four b by the district court first one was the motion to remain on which the district court we believe correctly granted or denied that motion to remain on which i understand  subject to do novo review then there was a motion for reconsideration but there's been no assigned of error to the judge's decision to deny the motion for reconsideration so then we move a year later more to the motion for motion to amend which was treated as a motion to join new non diverse defendants to destroy jurisdiction and properly evaluated under the multi factor test that is correctly applied the right legal standard and that the district court's decision after evaluating that that multi factor test in the written decision was not implausible illogical or unsupported by inferences in the record and the reason i say that is to get to the point that the district court did not abuse its discretion in denying the motion for leave to amend we feel that the district court's analysis of that issue in the decision is very well thought out correct and really does balance the factors both the factors that maybe favor or consider the plaintiffs interests and also the factors that consider the defendant's  interests because that multi factor test does include elements that direct and guide the discretion of the court for both sides so i'm not hearing any further questions we would submit the matter thank you resident defendant the doubt is ordinarily resolved in favor of the retention of the cause and state court i merely defective statement of plaintiff's action does not work removal and as you are virtually thought that the motive for joining such a defendant is immaterial it is only where the pla is a claim and you have to look beyond the in artfulness or the defectiveness of the complaint itself you have to look at well ok that aside all the defects you want aside is there a claim there and if it's yes has to be remanded even if this court has a doubt as to whether the negligence claim was an afterthought if the claim was vague or even questionable at all the claim is possible well the district court concluded that the standard of care claim was absent was made as part of a duty to warn which is which is a logical so why doesn't it rise or fall on the duty to warn well because again that's just a theory that's one theory and and again you know we can we can look at complete factual scenarios and conjure up a lot of different theories that the plaintiff may or may not want to assert well so i mean i seems to me that's an awfully hard burden for the district court to bare to say all right i'm going to look at the universe potential claims plaintiffs a master of that's a question for the for another time as long as we identify the duty of care that's sufficient that's the cause of action that's the negligence right there the only way this court can deny remand is if after giving plaintiff each inference and resolving all doubts in favor of plaintive all doubts in favor of plaintiff that the complaint does not have any claims that are possible against ms leona b h o here are even the failure to warn claim even that claim is questionable because of the customer specific risk we would have to undergo a whole merits analysis to determine whether or not the classic case even applies because the customer specific risk that's why you can't just do it you can't we know that but we also know there's an exception and that exception is if there is a customer specific risk here we know that m f teasin nevada have a duty to warn it a foreseeable victims of  foreseeable x we know there's a duty to warn of m f t's could you could you just give you're talking about the universe of possible claims what what what what's your what's your closest most important case that tells us that we're supposed to look at that rather than what's actually on the plane the hunter case the hunter case the ritchie case virtue of the sessions case virtually every kid to get the gallus case  virtually every case in the valley and the ninth circuit talks about possible claims as long as there is a possible claim the hunter case but says it specifically