the next matter calendar is c and c r p verses the agency for the performing arts this case arises generally from c m g r p s attempts to enforce post employment restrictive covenants against the three individuals our situation is the opposite of what martin v franklin capitols supreme court's decision from two thousand and five tells us is the large objective of fourteen forty seven c which is the desire to deter removal sought for the purpose of prolonging litigation and imposing costs on the opposing party here it was c m g r p not my clients that sought to prolong the litigation and impose costs second removal was objective lee reasonable under the martin b franklin capital standard when filed the removal potential petition because clearly established law did not floor ploughs the basis for removal this is the test that was adopted by this court in williams versus international going to rama citing a seventh circuit case lot which followed morton v franklin capital third we reserved our objections by bringing to the court's attention below martin v franklin capital the governing legal standard when  had not noted that when they filed their fees it's those three points that are really significant for our purposes the factual situation we have here is completely different than what you normally see is right that's correct your honor and we did not  in making first was the the the the legal question of what's the pleading standard in the new york courts and in that situation because of the way they played their case against the non diverse defendant they they were they were conclude legally conclusory allegations in group pleadings they said she acted in concert on information beliefs that's all they could offer up the second part of the air and then the court did not we believe apply that standard properly in looking at the pleading the second was that there where there were facts before the court the court disregarded them because when they fit when c m g r p moved to  remain on the case they they offered into evidence some redacted electronic mail messages from the records and those redacted electronic mail messages were just offered by counsel no witness to explain them they involve communications on two of our clients misc ellen miss moon jia they explained it and it's in the record they explain what those e mails related to and what they really demonstrated is that they were continuing to work for the benefit of c m g or p throughout the term of their employment until they left and the court below did not address that specifically recognize it but what the court did do below was say the complaint did alleged specific facts and it didn't you stated the conclusion the legal conclusions in group allegations on one of the planes that were made it's particularly telling and that's on the breach of duty a loyalty claim against court and martin v franklin capital and the second is a case of the knights or we cited which is gardiner yes you know how the evidence got before the court is in the context of that that of remained motion trying to put meat on the were acting in the best interests of their employer c m g r p through the last day they worked there so it is evidence that the court could and should have considered and when it failed to do so that was that was that was clearly what that showed was that it still don't do what you need clear and convincing evidence that c and g are no possibility of stating a claim against ms moon jia and i don't see how you meet that standard it's a very strict standard we have for  pleading fraudulent jointer and here the with the departures occurring on the same roughly the same time frame and them having prior working relationships and being bound by similar either codes of conduct or legal standards with regard reasonable basis has to be considered in the context of the street strict standard that you have to meet it goes to the question of the language in the complaint again it goes to the pleading standard under new york law not the question of whether the district court should remade at the case we're not challenging the riemann decision which is the standard i believe your honor citing to we're challenging the award of fees on the question of whether we were objective lee reasonable based on the complaint well that was made in removing the case whether you reject it we peaceable or not hands upon whether you could make a plausible argument that fraudulent that the jointer happened fraudulent and i'm suggesting that that's a very difficult standard to  meet and it's and it's our position your honor that that's the remaining standard which again is not challengable want to appeal it's not the standard for objective reason melissa under martin v franklin capital which goes to a separate question which is whether or not the court should  its exercise of discretion award attorneys fees in this case over eighty five thousand dollars on a remain motion my time is up here that may please the court morning your honor i'm robert wittman on behalf of the plaintiff up elise c m g r p judge schofield held in her decision in this case that based on the allegations in the complaint and a long established second circuit in new york law that the defendants had no objective lea reasonable basis to support their fraudulent jointer argument and therefore an award of fees was appropriate the issue before this court is was that an abuse of discretion this court held in the also a remain and decision involving attorneys fees that a district court has abused its discretion if it based its ruling on an iranian view of the law or on a clearly erroneous assessment of the evidence or rendered a decision that cannot be located within the range of permissible decisions and we submit there is no possible basis on this record for this court to reach a conclusion that the district court abused its discretion under that standard this court held in terms of the standard for fraudulent joinder it held it in the pampa lonia case it later held reaffirmed it in the briar patch case that fraudulent joinder occurs when there has been outright fraud committed in the plaintiff's pleadings where there is no possibility based on the pleadings that a plaintiff can state a cause of action against the non diverse defendant in state court the defendant bears a heavy burden to show this must do so by clear and convincing evidence and all factual legal issues must be resolved in removed the matter to federal district court at that's correct your honor essentially boiled down it really does what have to employ the first to get under stand whether what you are measuring is subjective state court now happens for yes as the remains not appeal yes and so therefore that orders gone you'll never be back to the second circuit on the right remit that is correct that is correct but the ultimate issue your honor to boil it down is did was there it did did the defendants have any objective lee reasonable basis to believe that had fraudulent lee joined the new york resident to find the defeat diversity correct and  this record given the very very high standard to show fraudulent jointer there's no effort down just what is required to play a case against her under new york law that's absolutely correct and it is different as judge s pleading and if even one count of a state court complaint could be sustained then the defendant's inclusion was proper if there is any possibility of a recovery that militates against a finding its license to your opponent argue just makes general allegations about them doesn't describe any particular instances of soliciting clients of their former employer and violates new york pleading standards even given that they are more holland what's your what's your response to that with respect to the group pleading for the group allegation argument that simply not accurate one can there are specific allegations in the complaint and we can detail them in with specific paragraph numbers of the complaint in our submissions that indicate what specifically ms monk gaia did what her role was yes she did act in concert with others that is essentially the the y that we've advanced in the case that she along with her colleagues engineered a mass exit and a solicitation but it is not simply a case of saying one person did it and therefore everybody else did it too and they're all guilty it was not just simply naming like a corporate entity two layers removed simply throwing it in as an additional defendant without any specific acts by that by that entity well actually so i see count three focuses on her and makes a breach of contract claim but if you could direct us to a particular allegation about ms mcgee herself taking an action that was in violation of the code of conduct or otherwise unlawful that would be helpful there there are put there are allegations in the complain paragraph seventeen and thirty two in the complaint that talk about ms mongolia and her work background and her reporting to ms go on the codefendant who is the head of that unit is it just descriptive of her i'm looking for something that she did that was wrong business unit and a number of valuable client relationships had been transferred to a p a that is alleged specifically in the complaint that many of the former employees who were part of this group who worked in this unit had made a vase of statements to the business unit which is called rogers and cowan a unit of c m g r p a regarding their future employment and what their possibilities were and more generally that the circumstances of those departures lead to the conclusion that they had violated various obligations one of those obligations being an obligation not to solicit other employees to leave the employ of c m g r p there were allegations concerning unfair competition allegations concerning confidential information so it's not just limited to a specific client it's not just limited to a specific breach of contract it is in the context of a larger group departure of wh  this this appeal you involved volves in an appeal of we are here in defense of the district court's award of fees under fourteen forty seven c we have cited to this court a number of decisions in which this court has held that where there is a fee shifting provision that was invoked because of success at the trial court level that fees are then awarded at the appellate level for a successful defen by i understand i understand but i am simply saying that because the district court awarded fees in order to effectuate the purposes of fourteen forty seven c and preclude multiplying proceedings with a with an unreasonable removal and can award fees in that situation we submit it is appropriate under the presidents we've cited for this court to award fees for the defense of that award from the district court and if the court would look at those decisions  that we've cited there that this court did not hesitate in finding without citing specific statutory authority but did not hesitate in finding that because fees were awarded below for a successful outcome in a case and that outcome was then defended successfully on appeal before this court that it was appropriate to award fees for the appellate defense as well so we submit that that that same reasoning should apply here are that on information and belief a concerted plan this is a deficient group pleading we cited to the ab dale case a a recent decision that explains how the new york courts deal with breaches  duty of which the duty of loyalty claim is one that situation it's like pleading fraud you've got to allege specificity there's no specificity alleged in this complaint that's why under the standard in martin the franklin capital we had objective lee reasonable basis for removing this case to federal court now subsequent development suggest we maybe didn't have to but we didn't know that at the time in april of two thousand and sixteen what's happened since we  oh it was it was state and dismissed and they produce they're now pursuing the claims in georgia and the claims against cal and gallant based on the restrictive covenants have been lost we've got pending in georgia a motion both to dismiss or for s have a breach of a duty a lot that someone can prepare to go to move on and it's not a violation of breach loyalty and when we presented that to c m g even g r p in georgia their response was we need rule fifty six f discovery from you to determine what we should have in our information and i would cite to one case that would we did not cite below which is the padding to partner's case which talks about fifty six f and in not being a vehicle for fishing expeditions which is really where we are now of this case we had we had objective lee reasonable basis for moving this case based on the broad nonspecific allegations made against the non diverse defendant and in that situation under the guidance of martin v franklin capital which rejected the principle that if you get to remain and it's presumption of presumptive that you'll get attorney's fees they rejected that position which was the seven circuits position before martin courtroom i for fifteen it will be a closed courtroom so only people who have clearance can join us in the court room will take ten minutes to do that thank you