this case to me a little bit earlier i used i would use it for from my final exam question so this is a wonderful interesting case well and i hope but it following along with m desire we've got three and i could put them in fairly concrete order for the court and then of course feel free to ask me enjoyed the the the back and forth the court has had with the previous council so the st thing is under cafe au we pledge cafe appropriately in the record beginning it teen with the complaint we outlined why this case was appropriate under catherine and therefore the state law claim should survive but as we know not only did the court below dismiss the magnuson mosque claim he dismissed the state all playing saying there was no supplemental jurisdiction which we think is also fair so those of the state of our claims in your view stand independently i'm sorry no go ahead i'm going to judge boxer well this will help me hear what you call or people have called state law planes our state law claims under calf of my right that is that's right i got confused with a lot of the writing ok as once you get past magnussen moss let's assume you lose on that these are not supplemental jurisdiction claims th got half a claim surgery i read i read page sixty or so of their brief sixty one years as gov conceding yes that you at least in principle you could go forward you should have gone forward they should've let you a man and or you know maybe they have but but as a matter of federal court law yes there's no problem with your going forward just i call him calf acclaims they're not supplemental state law claims exactly do that yet but the matter  differently i think judge box and i have the same conclusion on it had you simply filed your non magnussen mos claims in federal court and sought to invoke diversity jurisdiction under thirteen th based on this record there's no reason for us to think you couldn't have done so at salute your honor and we did we alleged katha specifically now we don't the judge hasn't gone back and made the specific findings that would be necessary to you make no finding  is that until kaffir was passed you couldn't have brought the magnusson was claims in federal court is that right well the with a slight deviation remember under magnus and moss it specifically goes to federal question well so you say that but it doesn't the act doesn't say that the x simply says these claims shall not be carved not usable in federal court unless they meet certain requirements right right but then don't forget your honors the limiting provision of that same statute it says and this is the holding paraphrase here that nothing in this ad shall be considered to in any way deprive a consumer of a remedy under any state well  federal law to the contrary these claims are cognizable in federal court only if they meet the following requirements you know if we're going to go back and look at statutory construction in that way that may be true  you arguments one is gee i could have brought this before under diversity and i find that difficult but for the reason i just said your nd argument is even if i couldn't cafeteria nge the world has not you're trying to focus on the st argument  so i think your honor when you look at the cases even before caf came into existence primarily they were you had to have one hundred name plaintiffs in order to bring a magn point is was there room for when we go into it in our briefs at a certain level obviously because we're we're navigating our way through at a certain level if the issues are federal question in nature clearly then it's going to let's go to the cafe question what california to me basically was just an amendment of the minimal diversity require them of the complete diversity requirement in class actions and said you know we're worried these class actions are proceeding in state court these big ones and state judges and federal study judges are making decisions that affect national corporations or national defense and so we'll do as article three allows us to do remove the complete diversity requirement in in class actions of a certain size what is there and i understand that expands class action jurisdiction in federal court was there anything specific in the history of that act that suggested that they intended to somehow modify the magnusson morse requirement two thousand three hundred and ten look if you look at page twenty one of our brief specifically starting at mention of magnus and moss that act in the history of legislative history county if that's your concrete discreet question the answer is no even if i could persuade judge perry to look at legislative history i w primarily yes but well all that it's only it doesn't deal with federal question any jurisdiction but you or i feel like the court is warning me to narrow what that means and that's where i dub or so if it were in other words my understanding of the defendant's argument on this issue is you've got to satisfy both in order to bring a magnuson mosque claim whether with respect to any claim in federal court in other words not only do you have to comply with  but you also have to name one hundred and sixty dollars didn't understand at to be their argument i asked them but i thought their argument was in order to bring it in federal court you had to satisfy magnusson moss which has an independent jurisdictional provision though they do say that question becomes we know magnusson moss was an active thirty years earlier we know that kaffir was specifically intended to address class actions and when you read the legislative comments all of these words like to expand liberal make sure that quote cases that looked like class actions would be subsumed or brought on what i do not know it's gets your broader argument that's what i wanted to ask you about next why don't why don't if i read that history understand whether congress meant to do away with substantive provisions in law that might otherwise prevent you from getting into a gets used liberalize i understand writing whatever you were everyone is yeah whatever descriptor you want to use i understand judge your words but my point is we can't do these in a vacuum this court talked about that in different cases we're looking at it as what existed when cathal was in acted what was the purpose of cafe and now in addition to all of the state law claims the diversity requirements the numerosity requirements and the monetary requirements under cafe now i've got to go back and find one hundred dollars name plaintiffs to bring a magazine  claim there's nothing efficient there's nothing economical and sometimes frankly your honour's common sense in the law do need to intersect why shouldn't these claims be brought because what's going to happen is now you're going to have a federal court considering st all claims and state were considering federal law you heard i take it at this point to simply refile the entire action in state court true and then you get removed because that well no not under their theory but we understand the problem we just know it's going to happen now they say differently now but they're my friends but i also know them is a able advocates and i have a very strong suspicion that's exactly what would happen and so we're stuck we an efficiency exist under magnussen more spoil that and that was one more caffeine before caffeine there were inefficiencies it just wasn't brought to light is these most recent spate of cases have brought it to life right you know we sent that compendium to you because we wanted to show you the quote clint eastwood's spaghetti western trilogy we want to show you the good the bad the ugly so we gave you the continuum of all cases whether they hurt us or help us fifty because that's one way to go tin cases have said contra so you get forty two that said what we say some of the cases hinted at say some of the cases that say what you say take a slightly different view and try to figure out whether that's involved in this case some of the cases say well you've got cafe jurisdiction over your if i can call them state law claims right then once there is cafeterias to show your state law claims the courts should exercise supplemental jurisdiction again you know what the lawyer in the trenches now i'm faced with one hundred and three dollars class reps of which there are going to be one hundred and three dollars depositions potentially they're going to want to try then if i'm an enterprising defense lawyer which you honour's i was for the st fifteen years of my career now whether i was in uprising or not may be may remain to be seen but i was on that side of the v well then my next move would be going to work to knock out x number of these magnificent moss plaintiffs because in it will be below the hundred and i'll make another motion to dismiss and around and around we go isn't the better approach to allow since cafe has been acted to bring state law claims because it has a regional jurisdiction and also magnussen moss because the point of path was to include quote all cases that look you know from i'm from the town tennessee you're like where the heck is that if it talks like a duck looks like a duck quacks like a duck it's a duck and so in this case we have a duck that is magnussen moss in light of what has been an active with calf and a clear legislative intent that should be allowed to be brought and we shouldn't be discussing whether dollars name player should be brought in a class action case because that clearly defeats the purpose of rule twenty three and half i don't know if i may be able to put it more simply and better but that's all i've got right now on that issue any other question no i've gone over and i'm here to reserve two minutes in rebuttal but is there anything else about the state law claims that gives the court pause because when when the judge says and have the same question issued to beginning but i think they want to make sure i understood your answer your answer is that you think you qualify under cafe for those state law claims but but somebody has got to go back and do the math just very practically because i haven't dug into this i don't even need to go there no no i says it's i'm just i'm asking yeah isn't doesn't the magnuson moss act incorporate state warranty law as the basis for decision yes but if so you are so you that so so ever if you have state if you didn't have state warranty law claims you wouldn't have a magnus more square would you argue bully yes you know there's there are no i'm not trying to be invasive yes i'm saying you're warning we're all wanting it in this neat little package and i love needle packages you know i wish we could do that practicing when you look at it and read it in total it's meant to ascribe jurisdiction over all fifty states with respect to warranty period based on the law of those fifty jurors argued was going to you gain by having and i'm going to start looking for that from yesterday no no the point is to allow us and i'll say broadly meaning ok plaintiff's counsel we do want to bring the feasible state law claims warranty claims absolutely but as just judge bob said i may only have for example tennessee oddly enough the supreme court decided that our consumer does not allow class action claims well we know that so many other jurisdictions consumer protection acts do allow so my point being there are going to be some claims that are going to be state specific federal court you can have a class act have an ability then to broaden the case judge bad to allow for a nationwide claim a class search and or often assist the plaintiff's bar and the defendants when we're looking together for a final approval it will oftentimes be a basis for a settled nationwide class case if you follow me there so it's one of those things that we believe we're allowed to do we don't think there's a requirement under half or as we've set forth very clearly in our brief that magnus in march should be excluded simply because it was an act of thirty years prior were take like to start there because i think it's an important question that that we've raised but i think that if i could just break in symmetry tactically if this is not a final appeal doesn't that put you back before the district judge where you have said all they have to do is file an amended complaint they say they don't need to but you seem to say they certainly can to proceed with their pure kaffir claims and you don't get a decision on the notice of appeal in this case came in i think we were just as surprised as possibly the district court as the record shows this was this was we always assumed there would be an amendment litigation would continue well so i mean you so they said look we think our complaints good enough we think the district judge screwed up we don't need to amend it and a district judge said own little bit later well i guess if that's your view on or a final judgment and so so and why doesn't and i understand there notice of appeal proceeded to final judgment or wired to rule for doesn't that then ripen into a perfectly good notice of appeal well they're certainly entitled to i think that the court is asking if they could have just stood on you've got to follow to do that number one you've got to provide written notice to the court a notice of appeal is not a written notice that we're constantly so what if we went back to the district court a bought your view and they filed a notice to the district court that we're standing on our complaint with the district court then be entitled to enter the order that it finally did well and then they would have to dismiss the claim with prejudice which is the nd they don't have now they don't have to dismiss a claim with prejudice to appeal at jurisdictional ruing well this is a jurisdiction l ruling this is a this is a dismissal that this is the district judge saying we all agree and correctly by the way because we could to the cafe question the district judge incorrectly saying you can't bring this case in federal court go away  you don't need a you don't need under that circumstance for the people to dismiss their claims with prejudice you're great i agree that yes ok so let's assume we have to be a judgement still there's a judgement and you do agree by the way that what the amended pleading always a dismissal on a failure to establish jurisdiction the only basis he was asked to dismiss on was the absence of jurisdiction i know you call that it's well b six motion but your entire argument was you can't bring t here because it's not doesn't have one hundred plaintiffs and well it was a twelve b six motion because we did actually allege the pleading sufficiency this is one of many arguments in there so it might have been twelve b ok but i thought just i'm just trying to work this through ok i'm like judge bob well i mean i'm a practical guy back and they say look judge you had jurisdiction and you made a mistake and we're not amending our complaint and he said i thought that's what you said the st time but i'll say it again i'm entering a final judgment and then we can suspend this appeal for for you to do that but you're going to be back here in four months arguing to either the three of us or three different people exactly what you're arguing now or something mr lee could bursley they say we didn't think we need to file an amended complaint but we're going to file an amended complaint and you said we're off to the races still litigating in district court be run up your fees but your client doesn't seem to be better off i will i'll cut to the chase if yours and you can i go to the rd part to make it easier yes you agree that the district judge erred in saying there couldn't be jurisdiction over the non magnussen mosque claims under agree that there is at least the possibility of jurisdiction over the state law claims under kaffir yes and it's and i think we make clear number if we don't dispute that and then we want to send it back to the district judge to make that determination it on an amended pleading where they specifically and clearly invoke caffe as the basis for their state law claims absolutely i have no problems with that ok that's what i thought would be coming in an amended pleading put that aside and put aside whether we need amended pleadings ok let's cut to what i think the only disputed let's do it may initially as a threshold matter to get to court it's a jurisdictional question because i think you've got to satisfy the internal requirements of the act which is you've got to have one hundred dollars plaintiffs it is it your see that's what i'm trying to is what i struggle with to we if you pass an act without a private cause of action somebody comes to federal court and sues and they say i've got a federal question and sometimes the court says well i have jurisdiction but you don't have a remedy you haven't stated a claim because this act doesn't provide for a private course of action right and so it to me it may make a difference if it's a if it's a cause of action or if it's meant to be jurisdictional i think you've got to satisfy the requirements of the act and you've got to maintain those that you've got to you'll have a cause of action in federal court if you meet certain requirements otherwise you have a course of action in state court right and therefore their claim the claim that they filed was a state law course of action under those circumstances and that's fair i mean like i said it at the beginning of the case it's jurisdictional you don't even get to pleaded unless you have one hundred plaintiffs so it's it's it's fundamentally jurisdictional requirement just to get in the door on a federal cause of action  federal court for magnussen last claim and i don't think that that character changes throughout the litigation such that if you have a concurrent calf a claim somehow that one hundred plaintiffs requirement goes away and i mean we've got we've got to take a step back and maybe frame the issue from what did what did the law look like in two thousand and four so the year before cathal was in acted there was always there always claims being filed in federal courts including eleven dollars i think that came to this court where there is a federal claim like a rico claim being asserted in a class action or there's traditional diversity that's being met those requirements of establishing federal jurisdiction even were met existed harmoniously with the with the requirement that you have one hundred dollars plaintiffs in the churchill case for example churchill versus g b which was an appeal that came to this court this court was struggling with is their jurisdiction and the court looked at what they said well there's a rico claim in the court found the rate the recall claim gave jurisdiction federal court jurisdiction over the over the action on the basis of the rico claim in footnote five of that case the court said there also is a mag moss claim but the court has no jurisdiction on the basis of magma lost because they don't have a one hundred players ok so the court in that case this because it's a it's a it's a remember prior to nine hundred and eighty dollars the federal question statute ten thousand dollars mountain controversy requirement i don't think you i think i would think prior to then you could have a small federal claim supplemental to another federal claim can chew i don't know the answer to that but but in terms of is it a state law claim mak mak moss is actually a statute that  supplements federalizes state warranty law i think that there was a discussion earlier on the viability of a mag last claim depends on whether you've stated a viable state law claim that you're invoking something and this court has recognized that in clemens i guess is it not only adopts it it just adds additional requirements supplement state warranty law so that if you file it in state court you still have to deal with the federal additional federal requirements that magma's imposes you're not you're not just dealing with the state law you're still dealing with the statutory requirements of what magnus requires under federal law so if you were if the if your friend were to follow my suggestion and just go back and refile this case in state court wouldn't you remove  st i'd seek dismissal of the state law warranty claims which would then take the legs out of the mag must clear your mind and then remove it you're always get you always get to defend against a claim i guess i'm saying if you were to stand up here today and say look judge we promise we're not going to remove this case again that might these guys these guys generally would rather be in state court where they find you're just more friendly than us but i don't know if i would  if i would make that commitment necessarily only because i just don't i don't have enough information on why i would or would not at this moment but in that hypothetical but as well as a bit differently this complaint that they filed were filed in state court wouldn't have your  removed we would prefer to be in federal court for the claims that are properly before federal court and i would remove it but then seek dismissal of this case because of this claim it does not belong it does not belong in federal court if they can't have the requirements m substantive issue that's the issue of whether or not they've right correctly pleaded a violation of state law if i could i ask on from the defense side you know we asked the question what does magnus and moss give you that when i call don't i mean if the court were to go back and look at our briefing we did argue that in addition to the jurisdictional issue that that's before the court that they had not played viable state law warranty claims and therefore the magmas claim correct and i don't think we're as we were not disputing that there is captured jurisdiction if properly played over the cap a claim so to speak the state law and i see that my time is almost up your honour's if you have any additional questions happy to answer them fact in effect a ruling as suggested by defense counsel isn't that going to make him essentially toothless i mean what if the point is that we should be allowed to bring these claims but now we're not allowed to bring these claims unless we under katha unless we through federal jurisdiction through federal question jurisdiction name one hundred plaintiffs will is it the net effect we've got a toothless useless statute i mean we're not going to be filing one hundred plaintiff complaints in a class action case that defeats the whole purpose as last night of cafe has really sort of repealed magnusson moss i mean i certainly had a strong idea of you need a one hundred name plaintiffs right i mean when congress and that did it that presumably was part of the legislative history package it and that's where i got in that's a great question your honor that's where our that's where i said you don't have to to comply with both requirements when you've got kaffir thirty years later and to your point judge her which it aswell where is magnussen moss mentioned in kaffir affirmatively well it is but it's also not excluded if congress had intended to exclude magnusson moss under the broad liberal reach of kaffir they could have easily done so and they did and so when you understand the underpinnings of caffein i know we do when you understand the underpinnings of calf and what it was intended to do it shouldn't exclude magnusson moss claims it makes no common sense much less well is it one hundred dollars at all times what if we knock out six and now you're ninety four dollars and then we make another motion to dismiss it if we warning that night nice neat package we believe what we say is the way to go  argument and the case of heather floyd vs the american honda motor company you submitted for decision