senate pursuing common claims in a single complaint asking for a single jury trial met the criteria for federal jurisdiction under cap and that finding was entirely correct after that finding the burden shifted to the plaintiff in this case or the plaintiffs to prove the applicability of the local controversy exception to capture stiction and that's a narrow exception of this court is defined as being limited to quote a controversy that uniquely affects a particular locality to the satisfied all of which have to be satisfied i'd like to focus on the rd one if i could st and that that requirement is that the principal injuries resulting from the alleged conduct or any related conduct of each defendant were incurred in the state in which the argument in the decision and then in his decision i don't believe that he provided a proper analysis of this factor at all i agree the district court ever addressed the argument of the district or did address the argument in fact that was the primary point that question i don't think if we're if we're limited to the four corners of the complaint to the allegations that we can then have an evidentiary hearing to try to explain or elaborate on allegations the law does allow for a of the complaints right to amplify or explain an allegation that's relevant or per capita way to short the court as in its hearing which will in fact happen here we have an amended complaint by the plaintiff that they assert was  made to amplify or explain issues related to capture stiction and that was in front of the district court when the decision was made at the time so i do think that that has happened here i do think that the plaintiff has had every opportunity to develop the  record when it comes down to it in the actual analysis being done the plaintiff there is a burden of proof here and that and that has to be satisfied through the allegations of this complaint but what i do think is readily apparent from the complaint is that we have a set of facts  of claims that do have interstate reach and if we can decide that from the allegations of the complaints that we need not go any further with this exception ok help me with that because you're you your view of the complaint is that they have basically brought some kind of a nationwide class action to recover from injuries suffered by anyone anywhere in the country that arose out of this yes no i don't believe that you are in fact they've clearly limited their allegations or their class so to speak to named pointis who either in their terms resided or visited the city of live in montana and they certainly are making every effort to cap the couch their complaint in their allegations we find in the senate report of the legislative history is that this principle injury exception was intended to apply to the world of potential injury not just the group of players to find in the class so in other and i got your butt guy but so their response is that there's no evidence there's not even any suggestion out there that anyone outside of this relatively small geographic area it's centered around the time is at the time of livy yes you i get the name from but what they say is that there's no suggestion that anyone in new jersey has been exposed to enough as best as from this particular to cause them any injury whatsoever and so yeah i guess in theory i think you're right the way you read the statutory language is correct but there's just nothing to suggest on this record that anyone other than this folks that were in this small geographical area were exposed to enough of this contaminant to cause them injury so why again haven't they why isn't this particular condition satisfied or i think i would cite you to a case that's actually considered that same arguments and the way the court looked at it was this this is the merino court record in california cited in our briefs the plaintiffs there argued that there are no allegations that injuries occurred outside of california this is a quote however there are also no allegations that the injuries are limited to california courts have routinely looks beyond the formalities and look to the nature and scope of the alleged fraud and so what we have here is we have specific allegations that this allegedly dangerous is bestest laden for make it like was put into rail cars then transported over b s s interstate rail system but at the exposure the injuries that they're seeking recovery for come from this really intense exposure right that senator around this town and there's just nothing to suggest i don't know if you're able to point to something that says well once the rail car got to new jersey residents of new jersey were exposed to enough of this system caused them injury and i understand your example about the defective car it's not enough if the car was marketed nationwide in the place of say oh but we just want to recover on behalf of montana residents i get that but the nature of their injury allegations is that we were exposed to this really unusually high concentration of this they're trying to tag your client with liability for is unique to this place it's not occurring nationwide right i think that's where i would disagree with you about it because they specifically allege in the complaint among other things that it's the transportation activities  s f that led to the exposure to asbestos laden for making light and that is and complain paragraph seventy six all right those and then they further allege that those transportation specifically allege that the unicef is liable for acting in concert with grace in quote furtherance of a common goal of profiting from the sale and distribution of this it's best to sladen for making light across the country so now they're specifically grant grant you as a as an advocate you're doing a good job for your client but i just think you've misread the complaint there what they have alleged is that there was a very localized course of conduct that caused exposure well above the exposure that anyone else in the country suffered and that that's what caused their injuries so if that's the nature of the liability you know that the allegations that they're trying to ground liability on it just  nationwide it was they were acting in concert with grace to get the stuff out of the ground in that particular community and in the manner in which it was being loaded on to the real cars in libby was what was causing a pretty extraordinary level of exposure to people in that area they weren't saying that your client conspired with grace to expose people to new jersey into a ridiculously high concentration of respect disagreement for you to paragraph sixteen was specifically look to the legislative history and we look to the intent behind it and the th circuit has looked at this force already and this isn't the davenport he lockwood case and this was i think this is an excellent case referred to because it like the case was focused on individuals injured by the tainted water in flint michigan and even though you had a class of people who were limited to the flint area claiming injury to the water sounds a lot like our libby situation  court held this it's local in a colloquial sense however it is not local in the way congress contemplated in cafe it was the alleged conduct of primarily out of state defendants that caused plaintiffs injuries and the class actions class actions filed surrounding the flint water crisis will have long lasting implications for interstate commerce and will be left and will be felt far beyond the flint what they were getting at is that this is a case in doubt or like  given in the senate report of a localized plant leak that that's limited to injuring properties around the vicinity of the plant we have a situation where a railroad and geisha interstate commerce is being trite is being accused of being liable for transporting on us interstate lines into and out of libby montana a product that they allege is unsafe they are in fact seeking to hold be an s f strictly liable for engaging in an activity that is required of it by federal law that the railroads are required to accept that it's tender to them in interstate commerce for transport that has been determined by the federal government or do you see regulations to be a substance that is not hazardous but yet plaintiffs claims are seeking  mcgarvie for the libby plaintiffs your honor i'll start with the davenport decision it is no authority whatsoever or utility to this case because in the davenport decision the parties have any support for this idea that if the breaches happen to blow across the state line that we therefore have a significant effect on interstate or raising there are a number of cases that are dress that i'm trying to look for a th circuit decision i thought i had cited i might prefer but but the phrases that i have seen and i hope i've cited to are that it is  virtually all of the injuries not not virtually all bare majority of the injuries are ality of the injur all or almost all of the damage caused actually that is from the center proport and i know what's in the senate record yeah and i think that was cited to by the court  it and would you agree then that the district court which just affirms the decision doesn't discuss a di there i would agree with that so somebody has got a disguise of i are you saying to me ok and well i understand it's a question of where you draw the line and when i read your complaint and i read the allegations of the complaint unless i get to the same result and i was why i was glad my colleague  the questions i got to the same result he did with the same exact questions as to what does your complaint really say what is it really alleging because these allegations that are in the complaint commerce for you send consumption by the general public so unless i have to look at your complaint and narrow it only to the people who york you are representing then i have to look at the senate report and see if that's enough that would suggest that if it can go back to the district back to the state courts this standard your honor its principle injuries caused by the conduct alleged in the  understand that so just because you've got a toxin that gets shipped around the country is no indication that there is conduct causing in the only indication in this complaint of conduct allegation it is in can see that there was injury somewhere else because a train happened to have her make just like it's carrying all kinds toxins all over the country injurious exposure from the conduct alleged the conduct alleged here was an extraordinary contamination of libby montana there are thousands of people that have brought cases hundreds of cases in montana so here's the problem there's a tension between requiring this factual inquiry and using the federal court's time to do and say and  if but if you just look at the face of the pleadings you have to make a factual determination a pleading that was created for state court now you have to look at it and as a plaintiff's attorney i have to plead i was there for was there from how i thought the damages you're seeking go back seventy years as an end that this was being done there was exposure over a long period of time but the damages were seeking are complaints with ninety one plaintiffs but i agree no it's not th or th i mean it's a jurisdictional question it's diversity jurisdiction and and the question is did we file a complaint that seeks a joint trial of all these clients and certainly under the nd amended complaint it cannot be read that way the original complaint can be read that so what i'm asking this court to do is apply the same logic that it has for amending pleadings to its determination of when does the plaintiff seek a these are very unusual circumstances we've definition of principle injury it has not been defined by the th circuit i think you're correct on that it has been looked at by other circuits that has been looked at by lower courts within the circuit and certainly i understand your point that you may want a l evaluate this case under a definition a finding of what a definition is with regard to what that finding should be and i think this goes to your points about what has been alleged in the complaint it's clear that this principle injury prong has been defined to include claims that quote could be alleged which certainly instructs us to look not just at what is limited by the factual allegations or the claims in the complaint but looking at overall and applying our common sense and so forth to what is being alleged in the in the reach and potential reach of what is being alleged or what could be alleged what we also see in the case law describing this exception is  refers to alleged or any related conduct so again we're being instructed to look beyond just the specific allegations that the plaintiff has made to what could be the potential interstate reach of a claim in fact the cases who want to specifically say we don't subsequently in the broad wake real case and there are only very narrow circumstances in which it would be appropriate for a plaintiff to amend an allegation for example it would be inappropriate and would not affect the jurisdictional analysis at the plaintiff were to go back and withdraw allegations that addressed all the it's interstate implications that we've been discussing today for the purpose of defeating federal jurisdiction they would not be able to do that even if given the opportunity based on the on those cases so your honor with that unless you have any further questions i appreciate your time ok thank you very much because just argued is submitted