good morning your honor may it please the court karen seldon on behalf of the defendant i'd like to reserve five minutes for about i'm sure under katha when a controversy results in the filing of multiple class actions that is a strong signal according to congress that those actions are not truly local could you also talk a little louder for us if you hear defendants urged the court to rule that the crowd or and bridewell cases were both filed on the same day so long federal court not only cass's three year lookback period what significance is there to the fact that before the cases before there was a notice of removal filed before that the california judge consolidated and consolidated these two cases it into one yes your honor the consolidation is irrelevant to the court's removal analysis for three reasons of the statute the legislative history and the case law so if you look at cafe the three year lookback area it says that if during the three year period proceeding the filing of that class action no other class action has been filed so the specific direction in that requirement is if you look at the time of filing in addition katha defines class action as a civil action that is quote filed under rule twenty three or the state law equivalent so under katha the directions explicit you look at the time of filing so in this case you would be looking at october twenty two thousand and eleven on that date bridewell and crowder were two separate actions filed separately and you will look back three years from there also under the legislative history  then you would take them later date for two reasons one we do know what congressman because if you look at the senate report there is a legislative history what congress says is the test for whether a controversy is local or not local is the multiple filing of class actions congress says in the senate report that those multiple filings are a strong signal that the case is not local so at the same time it says that congress could not have met that what happened two years later when the state court consolidate those cases could somehow wipe out all those earlier frank counts that when county council in congress made that statement think what it was referring to was multiple class actions in different jurisdictions i i i don't think you can really make the case that i don't see how these particular class action lawsuits have any kinds at all of nationwide importance the claims all boil down to blue cross and them in california as actions these are the it's california employees so there are about nine thousand class members in the cases and the california the did the class members are in california the employing entity that employed the majority of the class men case number i'm sorry class members well point is an indiana corporation so the majority of class members are actually employed actually have the cossacks and we can look right and one of the essential requirements is that that for your look back period has to be satisfied so what we were not disputing that the first year requirements have been met that we certainly can see that but that fourth  so for example of somewhere to be injured at one pm today august third they would not be time artists that filed at three pm two years from now you know so maybe i wasn't i haven't served seventeen years on the bench because i was sworn in who think in the precisely why we don't calculate time periods in that way in the influence case that we cite in our brief the federal circuit grappled with this issue and they said there is a problem with this stopwatch approach that the district court adopted where you're looking at the precise minute that the case is filed because that's not practical in a lot of cases it's difficult to ascertain and so what the federal circuit said is you you use an anniversary date approach you look at what happened on that day at an entire day and you go back or forward to the previous or forward looking entire day in this case that would mean something is called an october twentieth two thousand and eleven you look at that entire day and then you look back three years to october twenty ninth two thousand eight and both of the cases bridewell and crowder would be filed within that same look back here so i would think you would look at the three years preceding that date and neither one of them it's been filed well that i'm sorry so you say you deciding whether to remembering well you'd be ignoring the crowd or and that's just the certainly the worst option is having one stay when case with the same claims proceeding in state court and  case with the same claims proceeding in feral court that's the worst of all possible worlds since you agree i agree and i think that the approach that makes the most sense is what both cases remain in federal court not only because of the statutory text but if you look at the broader purposes of cafe in dark cherokee the supreme court said explicitly that you read kaffir broadly with strong preference towards the court jurisdiction and this court has recognized at the local controversy exception has to be right narrowly coleman and banco and so if you have that approach to jurisdiction and you've got these two approaches here the soft water approach and the anniversary date approach or i suppose plaintiffs approach the reman both the one the best fulfills when one person one party was added to come out and see everything else took place in california well i hope you look at it there's no dispute by either side the bridle and crowd are independently satisf threshold we've got an out of state defendant five million in controversy in one thousand class members and so there's no dispute that this is a large enough case that would otherwise be within the federal court's jurisdiction and this is not isolated cases we point out in our brief bridewell i'm prouder of the second and third cases that have been filed out of this controversy there was a strong case to appeal in which was filed just seven months before by plaintiff counsel  n also alleging racial discrimination also including the out of state defendant in that case so this is not some isolated local event these cases have generated a lot of litigation over many years what's the relationship between blue cross and creative is because the whole you know blue cross are not of that not of i'm sorry not of that well point there was one point inc which is at the top of the chain there was a well point companies which is a defendant in this case and then there was a blue cross california there a pair they are side by side and it is one does not own the other the the parent entity as well point which is not a name defend difference if they didn't it would create a big jurisdictional loophole because you could imagine a situation for example where a plaintiff could file or class counsel could file fifty class actions throughout the state with that against the national defendant but be careful to make each one state specific only california or only nevada class members and have a local non diverse defendant in each in which they could allege and such a way that those first  requirements are met and then because they're all filed on the same day you could say well they're all outside of castle because they're all filed on the same day that would be a huge jurisdictional loophole and congress so specifically in the senate report that the local controversy exception is not supposed to be a jurisdictional loophole it's there and the multiple class action requirement is there to make sure that those kinds of cases that generate a lot of litigation are not excluded from federal court all right so i just i'm sorry to go back to this corporate best and the other point i wanted to make about that in terms of interpreting these time periods between these various approaches of the court is has been presented with the anniversary date approach not only is it the one that is the most practical in terms of how people keep track of deadlines in the world in the low grog cases court said that that is a default rule for interpreting statutes and the statute has to say specifically if it is going to adopt a different role than what symbols six which has a complete day you look at everything an increment of entire days when you're just when you're calculating time periods and here as the infamous case said courts don't have stop watches in hand when their minds draw near there is no indication that congress intended course to have stopwatches in hand when interpreting the three year lookback period when cases are followed on the same day if anything what congress intended in the report is those kinds of cases are precisely the type that belong in federal court the consolidated case bridewell sledged in state court where it was consolidated before removal that is a very rare circumstance and there's no parade of horribles that comes out of that no one can manipulate that in the ordinary case cases are to be removed within thirty days even if a motion to consolidate were pending if the case was removable that could be removed before consolidation no one can predict huge number of problems this is highly unusual i was into the case more than two years against defendants that plainly employed my clients blue cross of california and anthem a california company when i was told that the well point companies were also an employer in some fashion and in the interest of completeness i was persuaded to add them which was a ruse in order to support removal which has created a all the same company at least facing their corporate disclosure right and we know that the first three elements of the local controversy exception apply there are all california plaintiffs there are california defendants that employed them because of california anthem and all the injuries happened there so when only by adding well point was it removable in any way because they claimed it was an indiana corporation  put us in this place and the problem with that is the case was consolidated seven months before removal and in california under california law the hamilton case which this panel was kind enough to cite and ask us to review and to discuss it's one case it's treated as one case it has one number it has there's going to be one verdict there's going to be one judgment and it has one filing date for purposes of the of the the the five year rule for instance of a case going to trial within five years one date would apply trial delay reduction act one date w apply it no longer is important in california that there's two filing dates now these are the same day but say they were six months apart it wouldn't make a difference the state is treating this as one case and what has happened bridewell sledged by a very strict a discussion of the local controversy exception was properly remanded all the three criteria that i mentioned were there and also there was no class action not the same filing date under california law and it there isn't any previous class action because there's only one class action there is no other class action which which the statute requires this isn't the case where there's multiple cases fireworks in different jurisdictions and congress did talk about that and actually specifically mention the necessity to coordinate under the panel for multi district litigation where and usually two cases don't get coordinated by the panel it's usually more than that and they're from different places and they're all placed with one district judge this is a case that was already in front of one district judge it didn't need any more coordination from any panel it just needs to be in the one place where it was properly filed and the class action in fairness act has an exception that that's clearly applies i want to say this though somewhat earlier in my argument there remarkable argument on the other side that i think is fatal to their proposition they say that you don't use a stopwatch you count the day so these cases were filed on the same day doesn't matter what time in the day they both have the same filing date if that's correct what they're arguing is that each one according to the statute preceded the other one in some kind of warped time space continuum the other which is impossible neither preceded the other if they were filed the same day in the time of filing doesn't matter and if the last section of the exception doesn't have a limitation for a previous action then it gets remanded required to be remanded in fact this is what they said it page fifty one of their opening brief when class actions are filed on the same day the no other class action provision is  inapplicable yes if it's going to have clickable then it must be remembered all the conditions for remained exist they are filed the same day i don't think you need to get to the stop watch versus anniversary date argument because these are consolidated before removal a somewhat rare perhaps unique circumstance so that there's no other case that we saw with that occurred that was one case where it was quite salute we did i mean it's a bit of a redundancy since it should have been just one case now they filed two notices of removal even though it was one case so there there were procedural irregularities from the get go and it was plainly related it's the same set of circumstances i'm pilloried for filing two actions i could've filed one and in retrospect i would have however i filed them to keep the two kinds of claims clear you know because people that are african american could be a woman as well they could have a pay issue they could have a promotion issue so there's four variables i put it in two cases it didn't  interesting question i've been i've been working on this now for a couple of weeks and we get lost in the civil procedure we'd say yes indeed california law is going to apply in either either for that is for and why is it advantageous to be in state court versus federal court it's the forum forum we chose and for instance in the central district class certification motions must be made within ninety days of filing or which is not the case there's a much more liberal calendar in our central civil west courthouse for that that's one to the jury panels are slightly different there's a host of reasons and jurisdictional choices that you think about for your clients where's the best shot for them to get justice and if we chose that legitimately as our as our forum and we're in los angeles superior court we ought not to be uprooted or as it is now half uprooted where we're now sitting in two different places i mean we're it's the worst possible solution i think both sides agree that the cases should be in one place the unfortunate fact for their side is there's no basis for bridewell sledged to be in federal court none whatsoever it meets the four criteria and it doesn't matter what the presumption is or isn't if the presumption was clear and convincing evidence evidence beyond a reasonable doubt legal certainty those four criteria plainly exist in fact there is in it it only the fourth one is in dispute and nest of the fourth one one was filed before the other and that first case doesn't have a problem and should the exception for the pi and it should be in state court so bridewell sledge will be in state court it's required to be by statute the question is what to do with the other half of the same case the crowder case and my thought is there's plenty of reason under the hamilton authority to consider the case one case before it was removed with one filing date no preceding or other class action pending at that time therefore all the criteria apply and it too should rejoin the other kids in state court i don't really have other points to make but i don't know if i should you agree with the mr genie that we are to you would be in one place or the other not not this hybrid that we've got i don't agree your honor because at a minimum if you're going to look at the words of the statute and if you're going to say that the approach of considering them both filed means that they both go back no because they're still the word if you're going to follow mr giardina his logic then bridewell was filed in the time period preceding crowder you can't get around the words of the statute if you're going to say that you've got to look at them as if being on the same day doesn't count how does it have your client to proceed simultaneously in both forms while you argue that that's the way it's been for a little while now and how we've dealt with that in terms of efficiency is the state court cases that state the litigation going on in the federal court at the moment and the state court cases and state so that there's two different natures two different sorts of claims and when resolution one time when case is not going to fully result the other case there is a significant of overlap in terms of the discovery and the kinds of issues in terms of the policies and procedures play because both of them involve race as criminals in both involve gender they only do the differences pay versus promotion so there is a fair amount of overlap and so for patients you say the state court cases and state why should the state court plaintiff have to wait where they entitle to get their day in court i think alternately they will but ultimately why not now i mean that along with the other ones going on why should why should be stated that can be consolidated that's the whole point i think that was just in order to get the efficiencies that one would get i mean out filing date he talked about the five year rule it's actually not true that when cases are consolidated they both proceed under a single five year goal that is the later the earlier filed case the g m case which i don't believe we have in our papers but it's the california supreme court case that says that when cases when there's two cases that are allocated you still look to each independent filing date for purposes of the five year rules so there's no case that says the date of consolidation and as of the filing date well point was that even the case right that's for us that's right and i don't think that that's dispositive because again the test is what did the cases look like at the point that they destroy jurisdiction so that's a critical distinction the other distinction is in those cases you're looking at federal question jurisdiction which the analysis has to happen at the time of removal in contrast here we have a statute that says explicitly if you look at the time of the class action was one case you get to aggregate the amount of controversy the court said specifically that looking at the definition of class action that it's filed under state law that by a plain reading of the kaffir text plaintiff has filed ten separate class actions and the subsequent consolidation did not alter the fact that those actions were filed as ten class actions similarly expedient case the district court rejected that a state court consolidation somehow commenced a new class action for catholic purposes they were clear that you have to look at when the quake cases were filed so all of this talk about the consolidation and the effect that it had announced a single case we're talking about a time period that's relevant for the purposes of what we're doing here which is looking at the three year look back  isn't going to be basics two percent on well on well points deep pockets there is a reason why they added them and they they were named of the defendant in the strong case as well before they chose to dismiss them and so all of fall out of kava now as i said before that means you've essentially be rendering the three zero requirement analogy you'd be saying no matter how many cases are filed on the same day you know how many customers are involved no matter how many interstate local national defendants are involved because it was bought on the same day we're not we're outside of cafe and that is just a huge loophole that does not you cannot read that into a statute it's not there it's not in the legislative  history and also just in terms of how time periods are counted in rule six yes you look back from the day that the event happens and you count from the previous day but that doesn't mean that what happens on that first day is irrelevant the purpose of that county convention is to trigger the counting period doesn't mean that what happened on the first day just isn't always the whole purpose of this is to create a consistent rule where you say you count the first day you get a look back and count the rest of the final day so