analysis case and a big picture problem with the ruling that came from the district court and when i say big picture what i'm looking at is a declaratory judgment action that was properly filed in the texas state court and i don't think there's any question that this was a proper declaratory judgment and that it was properly filed in the state court in texas what happened then was this case was removed to federal court by chase at a time when there was no case or that when we filed the case of the texas state court there was no case pending by chase chase then removed the state the texas state court declaratory judgment action to federal court and then is why we started the brief saying something is rotten in the state of denmark to to apologize in advance for using and overused analogy but the overused analogy would be this is much like the person that shoots both of his parents and then complains about being an orphan and in this case we have a proper state court declaratory judgment action chased removes it to federal court and then uses the doct federalism to get the case dismissed and what happened your honor as i was getting ready for the hearing in front of the district court i actually did the boring grunge work of reading all the cases that they cited in their brief and in particular there was a footnote thirty one in their brief that actually about a page long in small print that actually listed out all of the cases that supported their motion to dismiss the case based on all of these cases which are primarily federalism cases and what i noticed as i was reading those cases is they basically fell into a decision tree if you will and that decision tree is essentially that just the controversy in those sorts of things and i don't think there's any question about that in this case then essentially what the case law does is it bends at the at the road there and one band goes towards whether it's a federalism case and two if it's not a federalism case and what i noticed and it's universal among these cases if you go to all of these cases cited on there there footnote thirty one which is essentially all of the cases and in this area you find that where federalism is involved in other words where we're talking about a federal declaratory judgment action case which is filed when there is a state court proceeding pending then they use the tray ho factors which are a pretty light standard i would argue for dismissal of a lawsuit when there is no federalism involved you go the other route and when there is no federalism then the courts applying applying what they call a compelling circumstances test so and what is that compelling circumstances test under the there are things such as and i'll give you four examples such as things such as faith things such as the federal court doesn't have jurisdiction over all the parties compelling circumstances in one case a plaintive delayed serving a lawsuit improperly in another  consent if that's that makes it under the case on we've cited a number of cases for this proposition that without any question in any doubt makes that a permissive a new provision it does not say you can't file someplace else it just says you can file in ohio and i would know you can but that doesn't mean the other side has to agree right the you either if you can file a no higher or you can't follow any where were values proper and and your honor i would say that this case  there hadn't been a provision saying you can and by the way the same day these documents were executed by the pardons some of the documents that ohio and some of them said new york they were just form documents and they are even inconsistent within the document signed by the same parties on the same day some say new york some say i haven't said texas i'm sorry none of them state texas that is correct but i want to make this point very importantly it doesn't have to say t ok well i kind of if i respectfully take issue with a couple things you said one is race to the courthouse they waited over four years from the date of the maturity to go to suit number one and the year that was planing about that is your client complaining about well i mean your honor if i mean not to be glib but if somebody is going to be sued they want to get things resolved they could it could have resolved it by painting or working out a payment plan and come on response to a demand letter you all run out and try to get the benefit of the first time and a court saying now you don't get to get the benefit the first time brokers the way it's really workable make the true plaintiff the plaintiff not go to ohio i mean district court specifically found there was no bad faith and there is no one of the truth with the case law says is compelling circumstances to just there's nothing bad about trying to get the core you want to get in i mean i think it's good clean fun but the because if i can take a minute your honor is that this is not a maybe could have been found in texas case this is a hundred percent a texas case other than there is a consent to be sued in ohio this is a texas case the defendant lives in texas the corporation had its principal place in business in texas the bankers were in texas the bank was in texas the loan documents were cited texas the airplane that was purchased was hangar in texas says and i don't have it for me but basically it says that the that the defendants iroga irrevocably consent to be sued in ohio words to that effect as if i got that right ye and so again it's a it's a consent provision and it doesn't take away the correctness of suing in texas where all the witnesses were all the evidence was and so that's why i'm so in fact about this being  texas case it's one hundred percent of tech let me let me just point out to you because i know you're an expert in bankruptcy law and probably in this area also the trade both cases written before the panel of briefly garwood and higginbotham judge garwood being perhaps the great intellectual of our cored historically judge higginbotham having been the chair of the federal advisory or judicial conference advisory rules on civil procedure a parallel state court proceeding with quite to the contrary it's the first factor well excuse me he says that's just what but that's just one factor it's just one out of four laws apply if federalism is not involved then there's got to be some compelling circumstance and you're on a when you said this is good clean fun following in texas in my opinion there that's an expression by the way and i didn't mean to be misunderstood of course it's very serious work that you know and i didn't take it in anything other than what what i believe you meant is that it was proper to file in texas now that point is when there's two places you could be right i mean venue is a big deal in texas within texas me we all know that and back in the worker's comp days people would sit at phone booths to wait for the decision to come down so that the first to file would win and whatever so i  think venue is important i think picking the court is important i have no problem with that was what i meant to convey obviously a serious matter and not fun per se that said there's nothing abusive about saying well we'll go with what the true plaintiffs i know that was bad faith for y'all to file in texas but it was preemptive and it was in response to a demand that gave you a deadline and you kind of you know were trying to get ahead of that and so again i'm not saying you did anything bad or understand what's wrong with that why it's not an abuse of discretion well that's not what the judge was and picking wasn't we didn't they're trying to dismiss arcos texas so this judge is and that's because at that point there was an ohio case after we filed and the ohio judge had denied a transfer venue right so in context the judge's picking which judge the judge in texas is in context picking saying so again when we are looking at whether a judge abused her discretion we're having to look at the whole picture right and the whole picture is you still have a forum to litigate these issues in ohio and it's the proper plaintiff in ohio and everybody agreed to hire as a form so what is abusive about what she did the part that's abusive your honor is cases that cite a trail as a federalism case and i'm finding that cases where and trade a was a case where they were favoring a federal jurisdiction over a state court a real true stake or a lawsuit that was pending and  this is not that case this is the opposite this was a state court case that was removed by the defendant a federal court vs a federal court in ohio this is not a federalism case but i mean not even close in fact it's reversed haven't said anything about federalism my questions to you are just practical and this kind of thing is practical at some point ya'll going to fight over these the details of the case were you going to do it and i'm saying i don't find it i the trial judge i might have had a different outcome right and probably would also not have been a piece of discretion so what i'm saying is that's what discretion is all about and if there are two reasonable choices then the person with the discretion gets to pick it's only when there is one reasonable and one under reasonable and they pick the on reasonable now we have to step in i understand that your honor but the sure william case fifth circuit and the trail case both say that that discretion is not unbridled and that that discretion is not exercised what i'm arguing today is it's not exercised when there's no federalism and there's no finding about face or compelling circumstance and that's what happened in this case was it was there was no final about face there was no compelling circumstance there was no federalism involved the district court should have dismissed the case ok you have time for a bottle greer please the court counsel the court should in this case reject the application of the colorado river exceptional circumstance test in the context of this anticipat y declaratory judgment action which is the court has already noted on the record was filed on the due date of a payment demand made by chase in anticipation in this case was fallen in anticipation of the suit was brought by chase a mere three days later in the southern district of ohio the court has focused on the sole improper purpose of the case which i think was pivotal to the district court exercising its discretion to decline to hear the case under the declaratory judgment act and that is this texas declaratory judgment action was not only preemptive but it was followed solely for the purpose of trying to extinguish their pellets indebtedness on a node in a guarantee by application of a texas four year statute of limitations it did so against the so your honor the argument that is being made by the appellant is that by operation of the ohio borrowing statute that the texas four year statute of limitations would apply to the action in ohio chase that's an incorrect contention because when you look at the threshold necessities for application of the higher borrowing statute it's one to the forum i'm sorry it's one that the cause of action accrued in a forum other than ohio and it's to that that forum would apply a shorter statute of limitations than ohio would apply so  in ohio for that reason the ohio borrowing statute doesn't apply but even more importantly than that when we look at the choice of law provisions in the note and the guarantee arm which chase sued that they each and every one of them both of them say that ohio loss will govern the construction interpretation and validity of those documents those documents also point out is this court has already discussed in some detail that all parties irrevocably consented to jurisdiction in ohio so it's been argued tension all along that this in this declaratory judgment act was brought is a vehicle to try and apply texas law in this case a shorter statute of limitations that would apply in ohio to discharge those claims when ohio would apply either a six or an eight year statute of limitations  the mission insurance case was mission insurance versus puritan fashion and the court sure would not apply the colorado river doctrine the colorado river doctrine that's not abuse or discretion i absolutely agree with your points we continued clearly the district court applied the right discretionary analysis under wilton and brule heart that it was not required to apply colorado river considerations the others are efficiency and judicial conduct and i'm sorry fairness and judicial time and when we look at the application of the tray have factors here they would operate on to the district court is on earth does it make any sense to have two parallel federal district courts deciding the same issues at the same time when one is deciding a microcosm of the case  statute of limitations and the other is deciding every aspect of the case especially when the court it's deciding every aspect of the case is the court that was vested with the venue by the remains of the party sign and is the court that's closest to the choice of law issues because that court is sitting in ohio and it's much better in a position to determine these issues but circling back to justice to your point u r an abuse of discretion standard there's absolutely no basis to question his findings that the test was a proper test i may have heard opposing counsel even can see that he said the is wilton it is brought heart it's not colorado river if he's made that concession then the only issue is whether or not under to abuse of discretion the district court made the right decisions and we consider the fairness and efficiency considerations aptly demonstrated that to do court declined to entertain jurisdiction in this case and as i pointed out months ago there's absolutely no cause for two federal courts to decide the same issue and we don't have to jurisdiction because the koreas are fighting over the exact same dispute and another suit pending before sr sr federal district court better situated to depose of all dispose of all claims an issue rather than the one before this collects those cases and the logic and the really inescapable concept the broad harp struck home is the absence of peril of state court litigation no more requires a court to exercise its discretion to hear the case in the presence of parallel state court action would require the court to dismiss it's simply not an all or nothing proposition the appellant's here seek to kind of on a is and it's been stressed several times of the parties agreed to venue in and i the reason i take issue with that is i think agreeing to a venue is the same as agreeing that it will be there which is mandatory venue and that's not what these documents said now i'm  district judge gets to pick which one it's only if the approach that the district court took was i'm reasonable that we step in and that is the nature of discretion if i can pick a or b and i do and we're good at it's only if i pick see that we have a problem and that's that's just at the heart of abuse of discretion of the heart of our standard of review here which is important to me having been a trial judge and now being an appellate judge i don't want to get in the middle of discretion advice it's abuse and i understand have the thing that i think this ruling from the district court flies into the face of or i find it to be abusive is number one there it was the first case in a in a proper jurisdiction where the court found there was no funny business and there was no bad faith and when that happens under federal law in the federal cases that the concept of where the first cases is a big deal and the judge i think ignore that and number two i file shop here or the other thing is that the cases make clear that they're the discretion to dismiss a case and needed other than to say all of them are in texas because everything happened in texas other than we have a permissive venue provision in another state but this is every everything that happened this case up an in guess i i know they didn't concede that when we were arguing that point in ohio but i honestly don't remember they occur they suggested in the i remember i recall in the ohio proceeding that they said they had two witnesses who essentially were clerks that did analysis of payments and things like that which is somebody that could be in any state but there was no substantive witness and in ohio for dismissed and i think if this court agrees with the district court that it should be dismissed i think what you're going to be finding is beyond what this court has found before because i don't think this court unless federalism is involved i don't think this court has dismissed involved then this court has only dismissed cases when there are compelling circumstances such as bad faith well question specifically said it exists in this case ok thank you