the last case on the calendar right versus at the outset of the case this case is a little bit different there was federal question jurisdiction at the outset apparently not to her city judge farce didn't really cite authority when she said that there was now diversity could you just that point yes your honor and she could have said supplement or there wouldn't be an issue but she didn't she didn't exercise supplemental yes you honor so the issue that comes up in those cases is when you have a case under diversity jurisdiction that the parties are required to establish that at the outset so the courts have proper constitutional and statutory basis in this case under federal question against the police officer and then the state law claims against miss musante fell under supplemental jurisdiction now some time before she answered the complaint she relocated to nashville tennessee so at that point there was two parties in terms of mr wright a miss musante who resided in different states and the amount in controversy plausibly exceeded seventy five thousand dollars so the statutory requirements for diversity jurisdiction were created while the litigation was pending by the defendants actually their case law that says on a case starts with federal question jurisdiction and then the federal question jurisdiction falls by the wayside you can then look to diversity jurisdiction even though diversity doesn't arise until after the the suit was filed yes your honor interestingly no elise i could not find a case on point and that's probably the most it's the other direction either there's no case the other direction yes that's what makes this case i think interesting factually because of that unique change of the basis for jurisdiction over the pla musante but our point is that at all times the court properly had jurisdiction over the entire action originally with respect to miss musante under supplemental jurisdiction but then based on her own move to nashville there was  if she would have exercise supplemental no because when we had that does discussion with or when we had that issue with judge for if she had issued an order for the plaintiff to show cause why the action shouldn't be dismissed at that point and we responded to that not by addressing the supplemental jurisdiction factors but by pointing out that at that point in time we had diversity jurisdiction and that was the basis for judge for us order at that time i was doing that were your precluded are you saying now that you're polluted from arguing that in any event there would have been supplemental jurisdiction i don't know why it's a jurisdictional question and jurisdictional question can be addressed at any point  so i'm not sure why we would be precluded from that but at the same time i don't it only because you didn't argue with us but you didn't have to argue it because you you thought you were on solid ground at least even though there was no case supporting it that's going with the diversity that's correct your honor our position was that at that point we had the basis for diversity jurisdiction and so there's no case that says that so what do we do now you have a logic on your side but you know oliver wendell holmes once made his famous statement about that and so so so that we're we have to make no law to agree with that well i think in the sense that this fact pattern i could not find a case with this report fact pattern so yes and that's since this is a case of first impression but i don't think the legal principles are new law the fundamental legal principle is whether the district court properly exercised jurisdiction over the action of diversity at the time filing of  why should we have to file a complaint alleging diversity because there is diversity here can't we just treated as if there's diversity and that's the basis for jurisdiction well as a practical matter that's correct we did make that argument  we do make that argument but i think that the case law that the defendant points to really doesn't stand for the proposition that in a case like ours diversity jurisdiction always has to be established from the beginning what those cases point out is that there must be federal court jurisdiction from the beginning and you can't create it later on as no jurisdiction if you had a simple diversity case where there's no other possible no federal question jurisdiction of all and the lawyer files the case may be mistakenly believing that there is diversity or just because that's an ignorant lawyer doesn't know the rule there is no jurisdiction and the case is a knowledge so if at some later time it turns out that somebody moves and now there could be diversity of citizenship the problem is you can't sort of make the case retrospectively valid from the beginning your position is your case was valid from the beginning so that problem doesn't arise that's exactly right your honor yes and the problem with supplemental jurisdiction as i see it may be an comment on this is that is a discretionary judgment by the district court if the district court did not make that discretionary determination maybe we could remain and then ask the district court to consider retroactively whether it would have exercised supplemental jurisdiction although that raises some of the same problems if we think there is no diversity jurisdiction then the court would be sort of retroactively reasserting address diction that it didn't assert at the time it would have to exercise the discretion it might or it might not and if it did we do have some cases saying in under x y z circumstances it's an abuse of discretion and then there would be another appeal about whether the district court appropriately exercised supplemental jurisdiction i assume you'd rather go through all that than have the case dismissed for lack of jurisdiction but i take it you would much prefer that we address the novel issue of diversity jurisdiction in the first instance and decide about one and your favor yes of course judge lynch and i do think that the fundamental principle here is one of the constitutional and statutory power of the district court to hear the action including specifically the claims between mr right and and that was implicitly exercising supplemental jurisdiction over those claims eat at the beginning of the case yes yes and mr zandi did not challenge supplemental jurisdiction at the beginning of the case or in her answer  then it was when she filed the answer that we saw that she had relocated permanently to nashville tennessee that i real so we now have a diversity jurisdiction situation and i have this sometimes with other scenarios where i have a a federal claim that my client can assert against an out of state party which also has diversity jurisdiction and so often allege both federal question and diversity jurisdiction so they overlap i think what makes this case interesting but i don't think it's constitutionally problematic is that the change occurred while the case was in the early stages when it was beginning either or any other cases not necessarily involving diversity jurisdiction where the basis for juristic federal jurisdiction changes in the course of litigation so hard to come up with hypotheticals i'm just wondering if you thought about that well i looked for cases where the theory or the basis for jurisdiction changed and i was not able to find any which sort of surprised me because it seems to me that this fact pattern can't be literally unique or it happens but it's just not written up it's not made and as you write i want to spend a moment on the merits only if only if the court would like to hear it fine ok thank you very much we'll reserve decision that completes our calendar for today the motions are