noble and worthwhile calling that sentiment was true thirty years ago just reinhard when you first uttered it probably never thinking it would be repeated back to you thirty years later as you were commenting on the ebb and flow of our access to the federal court rather than creating a refining technical rule designed to prevent the courts from hearing places you have often and frequently expressed a concern for efficiency in the operations of this bran the government and federal courts in particular this case is not about federal question jurisdiction these are not the indigent and huddled masses these are not those members of groups who have been historically prejudiced by not having easy access to the courts and you can get access to the federal courts through diversity jurisdiction where every party is from a different location essentially the constitution allows district court and i understand jurisdictions an issue that can't be waived but the i'm just trying to figure out what happened here because i don't think it means that you're supposed to wait until but surprisingly this case is not a post judgment we're not close to judgment we're not in post trial motions we haven't received a verdict there has been no trial there has been no discovery there's no been no  pretrial dispositive motions there has been no discovery in this case the case is not even issued your honor and yet plaintiffs have brought to nearly identical cases arguing them in federal court separating them because in an effort to maintain jurisdiction i received this matter in september of two thousand and eleven this was shortly after loose forward a defendant in the lower case had we are under deadlines and a federal system that requires certain motions to be undertaken with a under certain deadline there are two identical pieces and i currently represent many of the defendant appellants and so their rights in order to protect them what was required of me to bring the motions that were required at the time as subject matter jurisdiction is something that can be brought up as you indicated your honor at any step in the process but we are despite being in the ninth circuit court of appeals your honor this case is fairly started i brought the subject matter jurisdiction  issues to a head in these two in that there are four cases consolidated before for this morning's current hearing i still haven't heard an answer to my question but let me ask you maybe a more pointed question maybe that will help but what  the issues that we argued before that i argued before judge he said to do with our motion to compel arbitration i know and i know that my question is why did you wait until the eve of appeal or on  appeal to dispute casey x s membership in with respect to jurisdiction or are and some trading i'm strong for the theory tiny or very well you won a series of motions were filed in june and july of two we we knew that we were filing we were filing the motions under required under the federal rules of procedure and the local rules we filed those motions when as they were required but we were waiting to understand what judge priest decision would be in the various pending motions rather than bring out a new motion or or add new elements to motions that he was already had already taken under consideration the moment that that subject matter jurisdiction became very real for me and for my office was as the motions to compel arbitration were denied those decisions is the moment that i needed to bring this subject matter jurisdiction argument to the court stressing again your honour's that while time has elapsed the case itself is not moved forward defendants would like nothing more than each of article of the arbitration i'm trying to figure out if you can explain to me or you have an explanation for waiting nearly a year into this litigation before claiming a right to compel arbitration based on the word releases that mr kolker signed in april two thousand and eleven yes your honor while and a year has passed seven months of that time is taken up by the district court analyzing the issues before him and issuing his decision and we lose forward motion to compel arbitration was still pending so there were reasons that there was there was no reason to bring up additional grounds for the court to make its ruling on the loose forward motion when i knew i had strategy is a piecemeal strategy you wait to see what the judge decides and then used to come up with a different reason i just i've never seen anything quite like this your honor that's not the strategy at all it didn't help me understand it because that this strategy was the prior counsel  today this morning i'm asking that this charge you know get rid of this case in federal court and allow and invite every single party and every necessary party putting parties to contracts that send all of those parties to a more appropriate venue and allow them to seek relief there but it looks like you did desperately to compromise your possible to accomplish that give me your best argument why  you should be successful here on feel you have a number of issues here commotion to compel standing jurisdiction on the anti slapp motion and then the of shares of stock that were issued to them by my clients as part of this giant scheme they've named them by name in their complaint but they don't appear anywhere either each of those parties would have been pinioned as to whether or not the contracts they entered into were valid whether they receive proper consideration for them whether and how they should be interpreted and whether and how that should be enforced we are merely asking that this court rule that federal system has no subject third party who is apparently of the city and of a settlement in a litigation context with the nominal defendant a settlement that was approved by a court and while period the first thing i wanted to do your honor was to see if we could deal with the housekeeping matter picking up on your comment about the time today and that we may get quite short  judicial economy this record and i separated the argument in some ways for the benefit of the court i was going to deal with the i think i missed your question your honor that's again i was going to deal with the jurisdiction issues and the arbitration issues to the extent there are any questions about those and this record was going to deal with the and i slapped issues and i so that's that's what we were intending to do i hope that's ok with the court  the first things that judge fees did was issue an order to show cause to my clients and the plaintiffs the shareholder class players to determine whether they were subject matter jurisdiction what judge faeces his order to show cause asked us to show cause for as to why there was diversity jurisdiction the reason for that is that my clients are corporate entities that are incorporated in the cayman islands and moves forward one of the defendants in the case is a law firm partnership and what i believe judge she's trying to get the answer to a judge she's just trying to get at is because because it's a law firm partnership all members of the law firm are considered for diversity purposes and there was no evidence in the record that we played that the camp funds were corporate entities so at that point in time we submitted evidence that the camp funds were corporations and if they should be treated as foreign aliens incorporated under the laws of the cayman islands and i believe was forward confirmed that none of its partners at the time were foreign entities so judge fees at that point time was satisfied that there was federal diversity jurisdiction based on that he issued an order vacating the order to show cause and we proceeded was a delaware limited liability company and that its members were to florida residents mr fix errors mr arnold both who are defense under the under the law  a limited liability company for diversity purposes you look at that you look at the members of those entities at that point in time no one on the defendant side argue that there was a lack of  diversity jurisdiction because somebody was a member of the delaware limited my belief company and mr vegas that he's relying on the delaware secretary of state's certificate there's point in time well the fact of the matter is that mr vega was substituted as counsel in this case on october fourth two thousand and eleven that was thirteen days prior to the original date for oral argument on lewis forward's original motion to compel arbitration which was denied at no point at that point in time did he see access prior counsel or any of the defendant raise an argument that there was a lack of diversity jurisdiction because some it was a member of the delaware l l c so in our view  both compel the conclusion that the district court determination at that time point in time was not clearly erroneous that it was diversity jurisdiction and the fact that defendants and the court at that point time reject this court rejected that argument saying that factual determination was not clearly erroneous at a minimum  to the district court for factual determination as to what was the true state of affairs as of that important time because as your honor pointed out they waited for so long that it stra that summit was in fact a member of case yes as that at that point time all reasonable differences should be drawn against them based on the fact that they had every single opportunity should not be given credibility it's not credible because those arguments whether mr vega or any other lawyer was there cancel at the time should have raised that the fact that they begin it suggests completely theory now that a new york corporation was on the plane decide that somehow destroyed diversity that's a clear example of the use of bias of always corporation can only be concluded to to reflect their view of the perception that judge fees was somehow being biased by keeping this case and not sending it arbitration so we already have evidence that the attempted to change the members of the shareholders of case yes for the purpose of destroying jurisdiction why should we believe then that something was in fact a member of casey x as of that point time when he never raised issue the delaware delaware filings do not show that at all and they prefer presented no evidence that some it was a member of was federal public securities filings where mr arnold and used to fix errors are labeled as the people who are controlling  access to the federal courts who have adequate played diversity jurisdiction have been waiting for discovery to start this case to proceed and it's only because of success of multiple and i would argue frivolous motion practice motion practice that was determined by the district court judge in this case judge fees led him to scratch he said to me put it mildly he indicated that he had never seen such success of motion practice like this your honor raised the issue why did you wait one year to file motions to compel arbitration based on these releases that were purportedly signed by just a poker well according to the defendants those alleged releases were purportedly executed by the parties on april twenty ninth two thousand eleven weeks before we filed our complaint and yet the only party to move to compel arbitration was loose forward so again if they were legit if those exist at the time which we highly disputed if they existed at the time the fact that they waited for year suggest one that they're playing games to suggest they never existed in the first choice and the right way never never existed in the first place and three even if they existed put aside their failure to make a motion on them which by the way violated the central district rules for filing successive motions mr kolker a known associate of mr arnold had absolutely no authority to enter into those agreements on behalf of the company so the notion that we've been waiting and waiting is a direct direct was directly related to a direct active effort to take advantage of the state imposed by california is dispensable parties we would suggest that under that case law while we don't think a c s is non diverse even if you find they were there is a clear mechanism under the rules joint tortfeasor are not necessary and indispensable parties and by the way neither intervene in this action to claim that their rights are somehow impeded or impaired they have not done that in any event their interests are more than are i may just one more point just so you can stress the point i know we didn't really talk about the arbitration point but i do want to need one significant point which is that the judge pieces application of the california court of civil procedure was fully consistent with the supreme court's precedent involved fully consistent with this court's decision and walty and start value that the other defendants who i represent essentially were going through a phase where was you trying to figure out why they were named because all they knew was they were they were business spending they were part of at the time including for the october two thousand and seven hearing and rulings that we've got months after that so the my emphasis on this case has been around a while but the case itself is  and it's practically a newborn it's not an issue then it's have an answer we are at the very beginning stages and now is exactly the time to assess whether or not there's a party that is indispensable and indispensable part of the where all the parties have been served and it's going to trial so if i was advising some of our own become i would i wouldn't tell them to step in and say anything that would let them let the plane disfigure out what their what their case has to be and i'm arguing today that it needs to involve alleged to be this all the evidence that exist in the file in the record including that submitted by mice my office and my clients indicates that all these transactions we had full approval of the board of directors and not just the defendant directors but others who were operating the company at the time yes it is going it was it with it it suffered tremendously but these actions and transactions were approved were asking that the defendants who are necessary parties he brought in to the mess we