like to reserve at least you know two minutes for rebuttal to try to help you keep around the time i will do that there are three points i'd like to make first one is a matter of  statutory construction the diversity statutes set out the limits of versity jurisdiction and they generally talk about the citizenship of individuals of human beings and  not non human organizations the only time they talk about the system ship non individual is of course corporations corporations or consider citizens of the state where they are of corporate and under and vice by statute where they have their principal place of business the diversity statutes do not talk about real estate investment trusts securitize trusts or trusts in general so to read into the diversity set use a essentially the same thing as allowed for corporations that a trust is considered the citizen of the state where it case of our own johnson which clearly albatross has the citizenship of the trustee that's who got sued in this case right the trust and the trustee so what's a problem the problem is that first of all the case you're talking ok so basically we have this case that says one thing do you agree that if we you're familiar with our case members as gammy that permits us to override or distinguish one of our cases if it's been if the logic or ruling of a supreme court case or been on one case undercuts it but in this case we have no such case like that so unless unless we conclude that johnson has been overridden by either the logic or the ruling of a supreme court ruling we don't have any choice but to find that the proper party was served in this case doing well very close we're dealing with in both cases a trust a trust formed for business purposes and a trust that has basically a profit motive and it supreme court has said in america hold in a situation like that the it's not the citizenship of the trustee it's the citizenship of its individual members and also i think that the thrust of america old is that there is a to just that fact when the trustee sues individually when a truss individual person that's a trustee suit you know then that person's citizenship determines diversity but if it's a if it's a the trust itself is it if the trust itself is an investment trust that's been sued the presumption normally is is that the citizenship of its individual members controls diversity navarro the general rule that is a general rule that the individual members of a business organization or individual investors determine diversity navarro is an exception to that general rule and is a sort of carved in exception to the diversity statues and your opinion what kind of trust is involved in business case this is a secure ties investment trust it's basically an investment vehicle that is regulated by the f c c it files registration investors in the general public it is clearly base it's clearly a business investment entity and is with respect to help me with this isn't this you're talking about the nature of th members and that's not a membership issue at it well it's a quote the trust itself is controlled at least in theory by its members by its investors its day to day operations may or may not be run by a trustee that is how actually an issue of fact in these cases when you're going to secure a car as investment trusts that basically has holes mortgages most of normally those kinds of investments are basically you got the trustee each which is often in this case like a bank that basically handles these things it does really little with them just services them they're not members they just assets that somebody parks with them to service them that's what i thought this is my wrong about that it's a little unclear exactly what and we don't know what loans for you will charge you a little fee they say right here is this package and here's another package but they run it they they they may have sub agents that help service that but in this case i'm struggling with the idea that h s b c know let me make several points about that first if you're talking about who runs the trust who controls the operations of the trusts the card and chase was very similar in a similar in some ways in the sense that it was a limited partnership run by a general partner and in that case the it was clear the general partner ran the affairs of a limited partnership when he had the supreme court so that was irrelevant it was the membership but  it was the citizenship of the individual partners have been individual women it partners that determine diversity well true but in that case a limited partnership only has limited partners i e members what i'm suggesting here is at least my understanding is that former security here is that the way these things work is you've got the bank the bank will offer to service these things there are new members there and there  in the securities you know that you've got you may have a pension fund or whatever else and they all have an interest in not in the trust but in the securities themselves and they are being serviced is that and thousands of mortgages or loans and it just does that i'm a contractor other people to perform actual service but there are any members there just people who they only things they're being serviced by them it's really no different then you have somebody come in and service your water heater in your air law office the more physically gated but the bottom line is somebody coming in providing a service in this case they're performing a service of servicing the loans that have been made by other people there are any members of that undoubtedly was also true in america old and it's also probably true in most of the cases cited in the briefs but even in america oh the court said it's the individual since they removed and i might add i might add none of this was alleged in the removal petition and the removal petition only relied on the citizenship of h s b c none of this was alleged even though this case was removed four months after him eric holder came down so if the court wants to take your that tack that somehow it you know what the trustee does and how much power the trustee has and whether the and no i'll say the read watch leaning one more point are they there's a discussion in the briefs in their brief about federal question jurisdiction there was never a federal claim alleged here or only california common law or statutory counsel at that point even though some discover it already been conducted and asked for more time to conduct more discovery still submitted an opposition that didn't raise any viable legal claim and also didn't present any evidence disputing the grazing immaterial issue of fact so summary judgment was granted in this case and now there's a new issue that's been raised on appeal as to whether there was original jurisdiction as we mentioned in our briefing because there's already been disposition on the merits of the case all procedural defects and jurisdiction has been way off so when counsel mentions what was stated in our notice of removal and that we didn't stay x y and z that no longer matters the only issue before the court is whether or not there was original jurisdiction and whether or not the court could have asserted original jurisdiction had all these matters been raised before the district court as would have been much more economical for all of the parties are brief outlands three different tasks but the court across the countries have employed to determine whether citizenship of the trustee controls for that or jurisdiction analysis we do think johnson is still good law but we recognize that that there have been three supreme court cases that are important to the analysis of whether johnson is still good law but we don't think any of these cases have overruled johnson and if you were to write this case describe how johnson fits into navarro and american and so on what would you say what would be the test that should survive if you will in light of the supreme counsel mentioned that both the trust and the trustee had been sued that's not correct it was h s b c bank and a that was sued in the original complaint and then when the notice of removal was filed  the council preparing the notice of removal responded on behalf of h s b c as trustee and then identified the name of the trust and said you know incorrectly named as h s b c bank and is that now a interest further defining the trust exactly so that it was really clear who the specific party was and were not just suing the bank or suing the bank as trustee of the stress so that is the actual party under johnson and it's clear then that the trustee controls now i think something that's been discussed in the briefing a little bit and suggested by counsel was you know god does have a little bit of a qualitative analysis that it goes into as to whether or not i trust the trustee is the real party an interest and i think that that real party and interest analysis is is very easy as determined by navarro they simply look at the trust agreement and they say under the trust agreement that was submitted in the case this trustee has the power to hold dispose of manage the property in the trust and also to litigate so there's been a lot of concerns raised about you know what's in the record and whether we need more discovery but in the viro is really clear that the only reason we would even go down the path of looking at who has been sued is to determine whether it's a sham party that's been sued or whether it's the real party in interest and that's addressed in the viro it's a real party in interest if they have the power council since the trust was mid can you answer the question that i ask your opponent this is the p s a discusses that but mentions that it's very limited right sia there there are some rights to receive shares of of money i believe and that come from the payment from guess but it was the is the argument that one of these certificate owners would be would defeat diversity because they would presumably live in california i mean is that that's opposing counsel him further states that it's the bird in this case of the right bank to prove that diversity was appropriate so is it your burden to show the nature of the certificate holders and whether or not their nature impacts on any of the teaching instruction the supreme court has given us in the various cases we've talked about right well here's the thing your honor i realize that he can raise this for the first time on appeal but i don't know of any authority that says the party can ask at the appellate stage to reopen discovery for a third round to get at this issue and we would contend that we have satisfied that burton well because it isn't clear that at any jurisdiction can be raised and it can be fatal to a claim no matter what it stage in their right yes but to ask for more discovery at the court has discretion to limit that and here the party already reopened discovery pass a summary judgment proceeding asking for more time the fact that they forgot to ask questions that they wanted to ask to get a jurisdiction isn't our fault and i don't think the court needs to reopen discovery for it and moreover the p s a the pulling and service agreement that governs the trusts was submitted as part of the summary judgment proceedings so we don't contend that you need to look at that or that that you need to go there because we have other tests to legal issues here does the district or did the district court have federal subject matter jurisdiction well we mentioned this in our opposition or our answering brief and there was no discussion about it in our reply but but there were and state law yes i'd agree with that however my point in raising the argument is that if the plaintiffs had itself brought this complaint in the in the district court it would have been entitled to do so because it mentioned  says that discuss you know cases that were a stretch for the plaintiffs brought the case in district court asserted to lay in the cover sheet of the complaint was one of them and the court found that that's enough that it was  that the plaintiffs allegations were entitled to the benefit of the doubt and they had raised a federal question and so the court could assert federal question jurisdiction over it we don't contend that the court needs to that we would need to win on this argument but complaint containing causes of action that are based on federal law what happens linchpin of the federal subject matter jurisdiction definitely the planet did not allege a specific federal law they just mentioned that federal i'm going with you i agree that there is no federal law cause of action alleged right i agree that it's incredibly vague reference and not a specific federal law as a circuit we contend it's enough for a federal question jurisdiction but i definitely agree your honor that there is not a specific federal crime but let's just say hypothetically that this were a real estate investment trust which is a specific subject here first and one of the supreme court cases if this were a real estate investment trust and the supreme court tells us that we have to look at the residence of the you know the beneficiaries of that trust right i would respectfully disagree with that i think what america tells us is if this is a business and entity authorized to be its own entity under the state law and if under that state law the entity can sue in its own name then we have to consider the members of that entity this case is really different because under because new york law governs the trusts which is you know one of the first things that we quoted from the p s a it's a it's governed by the new york common law and under new york law a trust can't sue its own name it has to sue it has to have  in determining jurisdiction this trust is different though it's a real estate mortgage investment trust and i understand that but i resent if it were then americal controls right if it were if it were a real estate investment and you know ok we disagree with that ok right because we think what what hinged on america it was the fact that the trust brought the suit in its own name and that it was authorized to do so under state law  and this is something that actually america talks about and distinguishes one of the linchpins of america old is the fact that the is that the fact that under maryland law the real estate investment trust issue is treated as a separate legal entity that can be sued in its own name this was your honor the second point that i wanted to raise the second test that this court could utilize for determining who citizenship controls is is whether or not the state law that governs the trust allows suit in its own name and the other question by my colleague now ok thank you very much for your argument but counsel you have a little time left here counsel did you file a motion for a rematch you know so how long was this case being litigated in federal court how long did it take from the time it was removed until summary judgment was granted it was the case was removed judge while it's he fell from sixteen and your honor i can't remember when summary judgment was ground but in any event here it was in federal court for some period of time right and now you want us to find that that court did not have jurisdiction send it back to state court and give your client and in fact another bite out of the apple confess yes now now i would waste on the fact that jurisdiction is an issue that could be raised in any time they like not a little concern about this art and i've got concern about this i understand that strikes me is a bit odd too but it is one of the strange lessons i learned in my first semester of law school disaster say it could be race at any time and i mean it could be raised on a tuition to the u s supreme court right it's just one of the peculiarities of civic better jurisdiction but in this case i gather from what you said doing kali that the purpose of this action is simply to delay this the trustee securitized mortgage investment trusts are organized under the same sections of the internal revenue code and basically they are the internal revenue code creates a sort of  under the internal revenue code they're very much treated the same your time is up again we want to one last point all this discussion of the p s a is to me a bit off topic because removal is determined on the basis of what's in front of the district court when the removal but titian is filed the p s a was filed in connection with the motions for summary judgment much later if you don't determine removal jurisdiction based on what's produce that summ