still went out to two thousand and ten but at that point there was three cross claims but they all were from california so a motion was made for severance but nobody said change from the time was originally filed in two thousand but there that is correct and there's nobody has a problem with that but they teach us that baby judge school that whenever a district court gets a case the first thing you should do is look at jurisdiction because we are courts of limited years direction what is the basis for california accepting the transfer and i take it nobody argued in their court in california when it took the case didn't discuss this with counsel and maybe nobody in pennsylvania thought of a but we've provided you a case that's right when it says and we're trying to figure out whether we can even hear the severance the court allowed it to be severed because the three parties involved were all from california so it made sense to the court to allow the severance why you can't doing california but that's exactly why shoot let's go to california and handle the rest of the case but the problem is when that case comes to california the court has to look at what's left in the case and what's left in the case is not diversity of citizenship between the a very finite point when i researched it i was looking for cases that said that you can transfer cases out of main case under when you have a diversity case and the court can take it under say that it carries over you're saying that the i'm not going to say it the way you just said it because then you might think i'm not telling you the truth i'm just saying that when i did the research on the issue  of at the time when i first came to the issue i think it was a slam dunk because you're asking if there is truth in the beginning then this is jurisdiction but then i was looking at the jurisdiction at the time of the california the first amended cross claim right it's document five five eight of seven one six and it shows parkinson in arkansas and the others in california anymore it's its own case standing on its own in california the ancillary part is gone pennsylvania's out of the mix the playing of side of the mix you lose that don't you or you're saying that somehow it carries over i didn't read it the way your hono arguing it well i mean we have something sitting here before us it's called first amendment it's simply freestyle and they didn't say anything about what the facts were in the pennsylvania case quite appropriately so we have well that has an introductory paragraph and this may be the problem and it says jurisdiction and venue are proper here in california and i'm paraphrasing because the case was initially filed in pennsylvania with against plaza etc etc and so i take it that is your position that because there was appropriate jurisdiction in pennsylvania the fact that it was part of the case was severed and came to california where it was convenient for the parties is good enough to establish jurisdiction in california that i want to put in those words but i would say that i basically agree that there was nothing to show the trust action was lost in the case and was proper in pennsylvania no question and we're trying to make it stand on its own in a different court in a different state you said he does some research yes have a case citation you can give me your best shot you have a have had a very long boring argument paired sitting through to make it you know and saying through some of the things that went on i try to just focus in on important issues give us your best argument i'll give you lots of arguments they're all good first of all in federal court i don't motion to dismiss is extraordinarily rare and beyond doubt that we cannot claim any supporting facts based on our cross claims which was contrary to the law in the federal court or the federal court does everything in its power to try to get cases not to be determined by how well you drive the complaint but they try to get cases on the merits the no statue limitations had run there was one issue came prevent or destroy my client's right to go after the other parties in the action for the damages he suffered this is basically a case where you have guarantors and you have a  under california law where there they sign guarantees they pay off the debt they're trying to recover the  e to take away all rights of my client to pursue because corker dismissed it and he could have filed separate actions with the court to not do it courses with prejudice which absolute prevented my client from having a right to go after these individuals was there any explanation in the record where the court dismissed with prejudice no there wasn't and i can tell you i'm struck now because i've had a bunch of other federal court cases and when you get a dismissal it's like a brief is fantastic i will tell you you all the information s amend and get around any issues this one was a blank was that a stone there was nothing so it was very hard to figure out and the issue of whether is jurisdiction not was never raised until i got the order from the court i guess was t case because it got knocked out at the very very early stage and so it will bore you with everything else in my breaks which covers each cause of action and i would tell you was born to write it this is the guts of what is ok in your honors i am david still well i represent mr gehring who was a brought into this action in california as a third party was not a participant in the pennsylvania action and as the responders in this case assume that you want me to address the jurisdictional issue to start with and he i have i have four points really that i'd like to make on that issue the first one is that the honeywell case itself and the order reflects that the issue of whether there was subject matter jurisdiction actually occurs at the moment of severance not when the case comes out t itself i don't believe and i don't believe you do because after honeywell there was a subsequent fifth circuit case that was called louisiana versus american national property and that's at  seven forty six fed third six thirty three that was a twenty fourteen case and decided about nine years after honeywell and that that case specifically talked about honeywell involving a third party claim which did not exist at the time this case was severed in pennsylvania it was the same parties that the court had originally jurisdiction over and louisiana specifically says that the honeywell case should be given great skepticism and the reason is it says the subsequent history of honeywell also suggest that a broad reading of the case should be really set the only way you can get there logically would be to say you're not really severing the case you're just sending a part of that to california to be tried because it's more convenient is that what you're saying i'm saying yes i'm saying that you have to look at thirteen sixty seven and you have to look at fourteen zero four a and b and when you look at thirteen sixty seven a that says that the court in the original case when an exercise supplemental jurisdiction it it basically shell take jurisdiction over that case right it's a mandatory jurisdiction now this was not and this was and when it when you get the thirteen sixty seven it talks about you saying i'm sorry to interrupt or you say what you just quoted are you saying that applies to california or pennsylvania i'm saying that it applies stick to pennsylvania and it carries over to california so could pennsylvania have sent this case to ohio or zero four for specific reasons those being that it was for the convenience of the parties there was substantial justice that could be exercised by the court in transforming it to another  case i disagree with you and respect to jurisdiction i disagree with you the honeywell says what you're saying it's i disagree because it is in complete contradiction to fourteen  it may create a separate action that's getting transferred but the question that the courts have said is you look at the time of that severance to see if there still jurisdiction other words let's assume that the  where the original subject matter jurisdiction in pennsylvania i think as long as that court had subject matter jurors had this whole thing and that and it was still there at the time of transfer that it still exists at the time and ends up in the central district of california by this the cross claims were ancillary the district court after ruled on the main case could have said you know why i'm going to dismiss the rest of this case right could have that it could have and if the court case right in california the answer would have been no because there was not diversity at the time they filed their say that scenario is different from it and that in fact california has jurisdiction because severance thirteen sixty seven point counseling the district court may transfer any civil action to any other district or to fish and where it might have been brought that doesn't work here right now it does work the original case that was difficult the second one seems like a factual question and maybe all parties consent but i think the first one isn't because the question is good that case in pennsylvania that was originally filed could that have been filed in california and the answer is yes because there was complete diversity between all the parties the court could have exercised and maybe they could have transferred t pennsylvania case but they didn't transfer the pennsylvania cases severance across claims oh i know but i'm what i'm saying to you is that the the statute on change of venue changing some of the venue i think that the case when you look at it live believe that because nobody objected to it at any point along the way either at the pennsylvania court the district court here except the jurisdiction is good enough i think that that's good enough that i can tell you there are cases where the parties have litigated in district court gone up in appeal and the federal court cannot peel has said well we don't need to address the merits because we are courts of limited jurisdiction goodbye you off or not and that we obviously don't want that to happen here as you can tell we are struggling to find out if in fact there was appropriate jurisdiction well i think that that's why i think honeywell case is in conflict with fourteen zero four so you disagree with honey i do i think it's a quite frankly stupid decision i mean i mean to be honest with you because what you're saying is that a court that gets a case that has original jurisdiction over the case now is prohibited from transferring that case to another one another district has decided the place where you keep my i keep seeing a difference from what you're saying but i do think that maybe the parties consented is that first it was severed and then it was transferred right correct me so they didn't transfer the pennsylvania case they turned it into cases i'm from transfer well they transferred the cross claims that the court had jurisdiction over at the time they were transferred  engaged in and that is the difference between a thirteen sixty seven and a which i think the court in pennsylvania had supplemental jurisdiction or thirteen sixty seven a which means that that those cross claims formed a part of the same case or controversy under article three versus if you had a thirteen sixteen thirteen sixty seven b situation where the court may take supplemental jurisdiction under certain circumstances and they can decide not to take it or the third case under thirteen sixty seven is the district courts dismissed all the claims over which you had original jurisdiction now so let's assume that in pennsylvania the court had disposed of all of the claims in the original case except for the cross claims they had gone to final judgment there wasn't until the border it was over at that point that i believe the pennsylvania district court under thirteen sixty seven could have said yeah i don't want to hear these cross claims anymore i'm going to dismiss them ok now i don't think you get that choice and if they had dismissed them yeah could those remaining parties then have gone to california and filed exactly what was filed in this case in state court now i'm in federal court don't take me there no no i don't believe they could have filed those in federal court you know so i think this is a thirteen sixty a issue and i think because the you have to take supplemental jurisdiction you don't lose that when you look at the issue at the time of severance two other quick points and then i'll move on but well ninth circuit case it says if you're the transferee court for my case it's got transferred from another circuit you do not have the authority to review that transfer order and decide whether it was valid or invalid no but we do have an obligation i would say to determine whether we have jurisdiction of that new matter that you just can't thrust a case on another court that court's first obligation in federal court and i think court perhaps on this issue of jurisdiction was followed unless somebody went back into that court and challenge the jurisdiction i can't tell whether pennsylvania examine jurisdiction in california there's nothing in the record that says that i don't think they have to and we divide the sides of the divide of time i thought it was most important the jurisdiction i appreciate the opportunity to brief it after hearing because i think we really have found some really good authority but what's your issue what do you want to add my i wanted to answer your question your hon question and then i'll get to my one issue if i could the question about how did it arise into the party's consent actually there was only two parties in pennsylvania at the time of the order of severance it arose in a hearing an oral argument hearing a motion to transfer venue for the convenience of the the only thing that i want to bring up that hasn't been raised in any in any way shape or form is the issue of twenty eight u s c section seven hundred thirty eight full faith and fair credit what's not before the court and what was not brought before the court in the original fil on of the transcript was the that there was a state court appeal there was a court action so this is not the first time what happened is and i want the court to be aware that while right after the federal district court dismissed under twelve  six rather than continue to pursue the appeal before this court the client the plaintiff the cross plaintiff took the position that he would hedges vets and filed the understand where you're going there is not a finding on the merits at least on appeal although there was or at the district court level so creates an interesting question of what is the effect of race judicata i know you were going to ask that i not if i didn't perform country new any that in california they can go forward anyway thank you for bringing it up thank you very much yes yes you have a minute going to go to the microphone please thank you