for next year i think of helen's point at this point as it should be the last time since you seem to come here a second time and that's really one of the key issues on this appeal there's a jurisdiction the time number one was decided there were non diverse defendants and the issue was fraudulent to wonder where as number two that issue was gone and so were the non diverse defendants it's the same issue again because first of all the issue is whether one case was first brought whether it's fresh and we joined so they had to go back to that issue again when this case was removed the second time the issue is right that the call is a matter of fact as we point out in our brief they when they say that the you can see when they say essentially that this was a wrong decision by judge real the first time the arguments with the same the parties involved on a frozen join were the same the issues were the same well what happened here was judge we'll decide it differently well i i would suppose because the diverse defendants weren't part of the case anymore the same parties the same claims of fraudulent jointer and when they judge real decided first time around there's no frozen joint or he can change his mind again and that's precluded by siemon a long line of cases the other even appeal the decision by the state court judge as to demur because before there was a judgment and through it was removed so we couldn't even appeal it in state court because there was no case to appeal from determined there's a controversy and that's all the california courts require for there to be declaratory relief terminations so as a result even if we get past the point of judge real concerning this case there was no jurisdiction we have the one year time bartle and that's been violated here because it's only been a one year time period can you actually do removal and the argument by homestead that there's some sort of equitable stocco  face because they're making the same arguments the second time around that they made the first time around so they haven't been harmed in any way it's just they didn't like the decision first time around and there has to be finality in determinations nine claims ok the way first of three four point nine has a section of deals with settlements and what it says is they can't have a settlement agreement in writing signed by an attorney that didn't happen here i don't know how they say there's a settlement  back of the check under california law or civil code fifteen forty two that's not even an effective release for future planes because it has to be a full statement that claims that are not for seen or known or wa whether the signature on the check has some impact no because i think that section just just says that if the signature on the check by itself in isolation does not constitute an accord and satisfaction again even if we got to that point which i don't think we can that's a question of fact how can you get summary judgment either way a question of fact but i don't think it's even a question of fact under these circumstances so if you want to have no further questions i'll reserve the rest of my time for a points raised by the reply the first has to jurisdictions well the damage is actually cast in versus homestead has been up and down a couple of times one thing is clear clerical error would be the basis of it yours is far more serious is it not you know that the reason is that when you reconsider it's clear that you're looking at that at the same removal and rina here where it is down and comes back up and sat down again and then judge mccoy resolves the issue he says the dimmers must be sustained without we have to admit now we're not talking about an argument that there has been fraudulent join here we're talking about a second removal based upon a determination by the state court that these parties are should not be parties to the action but that there is a determination that was made just ok so what difference does it make in terms of of siegmund whether the state court later determines that there are these parties should never have been involved because the time of the first one both sides were arguing terms of the arguments now he hasn't actually ruling by the state court these parties should not be here so it was removed but after that when your time garcelle well that's certainly true  track the language of the case that the actual language says that once a district court certifies a remainder order to state court it is divested of jurisdiction and can take no further action the case of cites a whole bunch of our cases there and and then it goes on to say contrary to response position a second removal petition based on the same grounds does not reinvest the court your stiction i know you're saying it's not the same ground but the fact is the at the same case think back same people the state court has said that you don't have these improperly joined people anymore but it's the same case the same grounds i think we still have to back and look at the statute  consideration of a clerical error of a prior water which that which the district court could not do that is different from a situation where judge mccoy rules that these parties are improper p unconstitutional even if there's an error with respect to the damages action it really is moot at this point because on constitutionality it was an affirmative defense to the damages action so this court has been discretion to affirm what the district court did and not send the damages action back down when it really has moved because the determination of unconstitutional on constitutionality is restricted between the that appropriately made in the state courts in their normal event with the state court damages action which raises the same issue on the table the federal court would defer but that ye knows the point is the state court i mean the federal court customarily defers when there is a pending damages action raising a state constitutional issue to let the state courts have first crack at it doesn't  that discretion has been exercised and it can only be turned around in this court reasoning well where the action was beyond the pale and then and then an exercise of discretion is overturned i don't think in this case looking at three forty point nine as a statute intended apply only to situations in which the statutory twenty seventy one final policy with essentially a statute of limitations are or are at issue and not one of those decisions with respect to selling that's referenced the issue of a california attorney in fact one of the case issue now in our case we have a settle the argument that well it really wasn't look we had a second settlement check that was sent in the record or cd there is the proof the last period by mr so homestead immediately cut the check and gave them that portion of the withheld depreciation it was on the second check claiming it wasn't a real up winning of the claim and i specifically said approval loss was always contemplated what our judge real did not follow you even though nobody brought it up he may still have a problem in terms of his role and it would be not yes ok let me close with the notion that important it's the first international into the three standards for the implication of the implementation of the younger abstention one is the state proceeding ongoing obviously that will happen here