two planes which were not playing at the time that it removed this matter to district court and since the appeal was filed we've gotten some clarity with regard to the eleventh and unity by the u s supreme court in the peanuts decision but i think what peter's decision doesn't go as far as to address the issues here you're right of course that it doesn't go so far as to address these issues that could be distinguished but i don't really understand why it should  i think it should be distinguished or are because of the differences in the uncertainty that look could be created with regard to state into these that are faced with the issue of whether or not to remove a case or to let their kids stay in the state where why i mean you know that until the verdict is rendered no case is really fixed in concrete you know that under the federal rules that amendment as we've to amend is liberally granted under rule fifteen at the university chooses to remove to federal court why doesn't that mean it takes the bad with the good it's in federal court there's going to be amendment it's more likely than not that they'll be some changes in the shape but what a g two issues here one is the particular circumstances of this case which we believe that the u s supreme court left open in the previous case because this question is whether or not there are facts related to this particular removal which in any way required in this case to be taken out of the rubric then is created and look peter situation and i think there are and i think the things we need to look at is what i could refer to as the forum shopping which took place in this case and i can also talk about the and changeable act which took place in this filed in the san francisco county superior court those two actions were mirror images of each other they are the same actions for all intents and purposes why is that response of it seems to me it's it's the universit idea to remove the state action to federal court it is because of the amendment which takes place with regard to the state court action the state court action had invented within it a violation and procedural due process of a minute complaint took the regents out of those due process quoting now having done that act plaintiffs create an environment where the regions could reasonably believe the based upon that intentional conduct on their part that the regions were not going to be subject to those coined in the state national cause at the same time they did that they left the district court action in tact the district court action including the include these two causes of actions these two causes of actions which existed against the regents when the case was originally filed in the department morning there i mean its discovery goes on as most from practice first on everybody does whatever's most to their advantage and that is the part of the summary judgment with like it's going badly there's an amendment to put something in there that looks like it will go better i think if you were looking at a case where you were just looking at a straight change file which were part of the case so what more is there to learn between the time that that was filed and amended was filed removal file and this case was and the second time when the complaint was filed there was no discovery i could understand if what happened here is there was some discovery which made them believe that the cause of action that they had previously dismissed now had some merit that was not this case comes to this court because of a motion to dismiss so there is nothing new comes forward which justifies the reversal of their decision to dismiss those two parts of actions for this action was actually removed is there any reason why we shouldn't just have a nice simple rule in federal court that if an otherwise immune defendant removed federal court the immunity is weighed as opposed to having a case by case terminations would make it less predictable more difficult to administer i would not favor sixteen forty four thank you our court rights and unless we are to abandon the general principle just stated our unless there is something special about removal or the general legal principle requiring waiver to apply and it is in that phrase or unless there is something special about removal or about this case where the supreme court is essentially leaving open the after this case was removed to federal court the district court action was dismissed and if we take a look at that that was a case in which the university the regents as the state within viral terribly could have been involuntarily brought into an action and several to jurisdiction in this thing and could lead to jurisdiction here in the district court you wind up with a situation where the university doesn't get to take advantage of that defense the  speaking specifically to the motives of the state in that instance we're not talking about motives here we're talking about conduct and the supreme court said that what we should be looking to is conduct and not motive simply because of what you just say it and when we start result in this case without even looking to motive because the net result here is the university would have lost it's eleventh amendment immunity that it could have asserted to that case which is originally filed in the district court that's the that's should never ever remove a case that's not the way i think we should proceed either and i point out one particular thing here the district court gave leave to a meaning to you were defects in a complaint this wasn't you it first arises as to the first i'm in the  without having to address the other issue which was there you suggested that there are circumstances where we ought to look at what the reasons for consent thing through removal or removing might be as opposed to just having a simple across the board rule when i look at this case in the context of what you suggest i think the district judge wrote that she had had the until after that and when the judge had suggested that she was not disposed to dismissed the state law claims against the university also when i look at the o together but they never said roy and i put those together and i'm thinking they just want to wait and see how it's going if it's going badly they'd rather be in a different courtroom no different judge and if it's going well they want to stay there now we're looking for a motive not accurate statement of the record and i would like to recollect that record if i were the only thing that happened in this case before this issue came here was to motions to dismiss no depositions no discovery nothing else the these two new causes of actions appear it's eleventh and limited immunity that's the first opportunity it had to do that and then when you look at further at the first i would have thought that first opportunity would be when the other defendants came around and said you jerk to removing this to federal court is the first opportunity at the time that these two new unapproved positive actions were certain and that's what the university did and used soon as those two causes of action the cause of action which is the subject complaint before it was served on the regents it could not and in fact if anything happens there is a list leading by including them and then the leading them and then leaving a independent federal court cause of action where there remain lie that's the problem that we have in this particular case and that's why we ask the court to look to the particular facts of this case it would not be appropriate to say that there has been that was in any way any substantial work done in this case before this motion was hurt all we had was two motions to dismiss and with that i'd like to reserve unless there is a question thank you counsel case is the state causes of action that were there when the case was removed as to the regions yes yes your honor that's why we moved for summary of fermat's last year based on appearance decision and then when it became clear in those in that motion  assume he knows don't exist i believe that under the exceptions of the militants doctrine based on the importance of the issues to the circuit as a whole that the court is still empowered to basically rule  rather the motions for some reaffirmed its usually good will motions and screening panel rather than the merits panel i don't remember the motion it may be that it went to the merits panel and it's just my mind because of the other cases but where we find will be attached to the most from papers correctly was we went so the court understands basically the chronology here the original argument put forward by the regents was that all of the state clients should be brought back to the state court state court claim that all that's gone that's in the federal court there's nothing else mistake or the only action now is there is still an ash are the state closures of action in the federal court yes your honor and those have been those on some claims against the regents labs for equitable injunctive relief which i think we all agree are not subject were not issues that there was a lot of the memmott i mean early on so those are still in the district court but just i understand your that's removed to federal court nothing changes what anybody has litigated more than a week and a half understands basically what your arms were discussing causes of action are added or subtracted facts are added and subtracted and when the reg in my mind those are words that usually mean something extraordinary something beyond the usual pablum that a geisha amending causes of action of bringing in a new cause of action is not beyond the ordinary it happens all the time now i was trying to think what judge wilkins decision below was the fact that during the oral argument on this judge wilkins directed questions to mr lafayette about what was the scope of their claim of immunity and as the court can see in it cited in our breeze basically so the issue about whether or not in a stunt case that we don't know about there might be special sorts of circumstances under the pay that's he still is still there but it doesn't apply to this case for two reasons an amendment is not special and secondly denied by this court and an order that's dated august twenty ninth two thousand and two that's the disposition there the other part of this is the circumstances under which we've just heard the argument all not supported by the argument someone months later maybe that's what provoked her question but the issue is this we have the entire record and what you see is there becomes ambiguity because we don't know what that point what the true state  did forty four and eight forty five at judge wilkins request the parties prepared a status report remained of state claims and that document was filed with the district court and pointed out to the district court exactly what the university's position was and what the then plaintiffs position was there was no hiding the ball or jumping around or playing through any tactical advantage with regard to  and when we submit the electronically they don't have signatures on them but that is the e file document and that's why it represented to the court so there has never been waiver with from the university standpoint specifically with regard to