seventeen days six one two two randy roberts versus mars pet care us incorporated argument not to exceed fifteen minutes per side mr barrett you may proceed for the appellant thank you very much good morning your honors my name is charles de baron and from neil in harwell here in nashville and i'll be arguing for the plaintiff randy roberts a promise i'll be short in my remarks i do not plan on going over each and every issue in the briefing but instead will focus on what an address from i think the primary issue i will start with the court to do with the do corporate citizenship issue that is the quote unquote important related taffy question as this court described it in order granting our petition we don't think this is really a complex issue but essentially it is the question is what to do with the corporations quote unquote dual citizenship for jurisdictional purposes our complaint is straightforward we alleged tennessee state class for violation of tennessee law and just in richm sion of the trade practices act with the tennessee rep the defendant mars is a citizen of tennessee where it keeps its principal place of business and delaware where it's incorporated under the class action fairness act of two thousand and five it says that there is minimal diversity exists where quote any member of the class of plaintiffs is a citizen of a state different from any defendant and quote we think the district  wrongly concluded that to establish minimal diversity on the cap of march could rely on its delaware citizenship the district court found really stated simply that minimal diversity exists where you have a pla and defendant have different citizenships even if they have the same citizenship we think that's wrong we think the tennessee citizenship of mars maybe it means that  about the point that you know the purpose of katha was to looks make it easier to get to federal court would be as large class action that seem to be what was motivating judge reads and you know i think she has a point there that that was the purpose of the statute it absolutely was and i wouldn't i wouldn't question that at all anybody that is ever has dealt with class actions even before taf and now knows the history behind kaplan the whole purpose of castle was to bring state a lot of state court cases and the federal court but calf a didn't it did change the law drastically but it didn't do everything castle was does was designed to  bring cases to make sure the class actions into the up in federal court and out of random state courts that the they didn't have had little connection to the parties or the facts of the case that was the stated goal of half of everyone knows it and it certainly worked i mean i don't know what the numbers are but the percentages of cases that are now in state court is small much smaller than it was before councils and the similar to part of it to go back to judge the next question if the purpose of kathy was to increase these and you've made the point now that it has in fact done that what judge areas was looking at from her perspective was you it points call him residence and call him citizens but you said everyone who purchased dog food in tennessee or whatever it was and defended makes the point there is a neighboring states of tennessee or something to that effect they also make the point that roiled can and should have been the real defendant in this case and so it looks like gamesmanship and that's what kept his purpose was to avoid that gamesmanship and preventing corporations from removing these cases so why isn't this the clinton central case and that's why  did because kathy has limits it was specifically designed to give a lot of cases out of state court but but the limits were specifically put in the statute when you have a case where you have a tennessee class with a tennessee rip under tennessee law against a tennessee defendant that is specifically designed to stay in state court i mean kathy wasn't it didn't go find all the national you know all the class actions with a national feel and grab jurisdiction it simply said ok you know here's the goal here's how you reach that goal here and gave and gave the specific steps and your opening that we just follow the rules while i certainly understand you know judge reeves you're talking about the national flavor that's not the basis for jurisdiction that's just the underlying purpose of cafe you'd have to follow the specific guidelines set forth in the statute and that's what we did  what happens to this case if it turns out that royal canon really was the manufacturer of food isn't it odd to have a price fixing conspiracy without the manufacture the  really i mean we think we think that we've got the right defended in the case and if the if that's wrong they can move to dismiss it then you know maybe we lose but we think we've got the right to send with a royal canine is a is a brand and we think doesn't mars there the company you have alleged mars care alleged that their sister corporations and they really are the principle if they go back to state court and join mars under rule nineteen would you agree it's removable at that point if they we go back to state court and they bring a party into the case no i think it's when you remove it you look at the complaint as it was  filed and and i don't i believe the law is pretty clear that you can't bring a party in and create diversity jurisdiction what if they get dismissed marse packed care gets dismissed and royal canin i get that it know the answer to that i just i haven't thought about that particular twist on it we don't we do not plan on suing will not that's not our i mean that's not that's not our litigation strategy at the moment we think we've got the right defended in there but it turns out we're wrong they'll move to dismiss and i'm sure they will explain why we are wrong but that's not the point the issue right now is jurisdiction  did i answer the question i'm not sure of the yes thank you ok now just to make a makes a few quick points on all the case law we think the district court was wrong for for all the reasons and i'll break but first first and foremost the district court is alone in the reading her reading of capital all the case law including the eleventh in the fourth circuit and a lot of district courts and commentators say that that her reading of  incorrect the second thing kathy did change a lot but it didn't change everything it didn't change the way the six circuit view views dual citizenship is prevert city purposes yes it changed the how you get into federal court but it didn't do anything with dual citizenship the law is simply the same as it was before caf and by that i mean let's say that we say there were no class allegations in our case we just simply had a tennessee red tennessee plaintiff versus mars pet care and there are tennessee in delaware and we fall in state court the six circuit law is clear to me that they couldn't there would be no diversity there they couldn't statute you go with it has limits and we look at the sprint case and the hannaford brothers case that we saw in our brief and finally we're allowed to paly the state tell us in state court you look at the johnson case from the fourth circuit in t sprint case on the seventh circuit they specifically say you know you can you can plead to stay class there's nothing wrong with that and even the freeman case from this court which you know the way the plaintiff had limited the amount of controversy  under five million dollars even the court there said when they recognize a plaintiff can avoid removal of the cap about limiting the damages they see if you if they limited not to broaden it like they did in that case i don't think there's anything different here instead of limit the damages we just limited our class to a state class so i'm fifteen seconds over thank you for listening to  neither based in north cooperated in tennessee and alleging a nationwide scheme to raise prices by manufacturers retailers and veterinarians we know this court's precedent and u s supreme court precedent that congress enacted katha precisely to keep these sorts of cases class actions with interstate ramifications in federal court not in state court but in order that the federal jurisdiction plaintiffs here brought suit against mars pet done in a different level i mean if you have price fixing with toothpaste you don't have to sue walmart and you don't even have to see the manufacturer necessarily i mean the point is to allege price fixing and why aren't they allowed to sue market care or there are a couple of responses i think the word versus apple case in the ninth circuit isn't it's instructive and you're absolutely right that there's no requirement to sue every member every member of the  conspiracy that said oh no no no just to be clear it's not even that sir may remember the conspiracy just you can have a vertical chain but not every step in the chain is part of the price fixing conspiracy i mean it can be it could be one o to another c e o in one phone call let's raise prices while the other the others aren't even part of the conspiracy certainly on what we think that there's no vertical change here as we've noted in our in our plainest point out presumes we have jurisdiction in the first place that's correct your honor and judge the part i think will nineteen involves a two part test and i think we would have we would say that you would look at the look at that after you have jurisdiction so you don't have jurisdiction then the proper place to join a necessary and indispensable party would be in state court while you're on a week and i've said as you're saying there's not a case that's on all fours with the current case and we are asking this court to sort of apply fraudulent joinder and one nineteen and then unique aspect that said i think that there are sort of alternative bases there are two other bases upon which there is that on additional four pointed out the citizenship of mars pet care marse pet care is a delaware citizen and is a delaware citizen has citizenship different at least what it's also it's also a tennessee citizen and if we applied your action now then all diversity sedition ship would be up in the air because the language of the statute just clear jurisdiction also says different citizens of different states and i don't know if you come across any cases that stand for the proposition that the district court a spouse thirty you espouse to the district court and she accepted not the same state in even just a plain diversity case well your honor we recognize th of course position one against the tide of the other authority that's that's ruled on this issue but the district court was deciding an issue of first impression within the six circuits we think it did exactly what it was supposed to do it looked at the text the statute  tradition of looking at you know both citizenships of a corporation which is incorporated in one place and has its principal place of business in another i mean how would how do you defend that well i think that removed every case there would always be diversity under here and now is correct or not quite your honor i think that under kaffir you'd still need to satisfy the amount of controversy requirement five million dollar amount controvers no i understand that there is always the diversity of citizenship correct there with the minimal diversity point would be satisfied but that said there are other requirements ok and so back to judge sentence point congress legislated against the backdrop of our case law when you look at the text in the statute it's identical to what it always been there in thirteen thirty two a one and they used different again so why i don't i'm not sure i follow why would that be why we should be changed the definition in a case of first impression when every circuit has gone the other way what judge the par i think that if if congress wanted to it could have adopted a  reading to preclude federal jurisdiction in cases like this it could have said quote when any member of a class of plaintiffs is a citizen of a state that defendant is not a citizen of that's not what the statute says you know on it and when congress enacted ca as you've noted it knew about corporate citizenship it knew about dual citizenship and instead of what it knew about it knew about corporate citizenship and it knew that we allowed we re mandate cases where the principal place of  business imagine this kentucky plaintiff citizen corp citizen of delaware with the principal place of business in kentucky we always remain in those cases in just an ordinary case more than seventy five thousand to use the identical language it's very similar right different citizen of a state different from any defendant versus citizens of different states but i just want to understand are you arguing that that difference in language makes a difference here or is your real point now really deep to a is were all material purposes the same is a wand but what shifts things is the underlying purpose is that the way you're arguing this i think i think that's sort of a flavor touch that and i think just to just expand on that point a little bit think a one doesn't necessarily say complete diversity but that's that's requirement that's been interpreted over time by by by case law and i think here with respect to deed to congress clearly enacted katha in order to expand federal jurisdiction and it wanted to expand it through minimal diversity not through the diversity and i think that that's why we would read the statute in context in light of the nonetheless affirm the district court's decision by looking at the citizenship in the definition of the putative class as we've noted in our brief plaintiff here seeks to represent quote a class defined as all persons in the state of tennessee who purchased eleven there complaint they say it's strictly limited to the citizens of tennessee so i understand your point and it's a valid one that residents residency and citizenship are different and that their complaint is somewhat sloppy but don't we what about this paragraph eleven specifically that specifically limits the class but that's the part i think that this case is really on all fours with the gallagher case that we cited in our brief which is that because did want to read the complaint as a whole i would point you to to the fact that we think plaintiff has really conceded this point and if i could read very briefly from page eleven of his motion to remain and where he states while plaintiff allegations do not express the state that the class members are located in tennessee with an intent to stay there this oversight present  not a mere technical or superficial problem this is the same type of problem that in cases like the curio in cases like the turner her case and in cases like broadway grill courts found precluded application of the homestead exception and in fact created minimal diversity and i think under the weight of that authority plaintiff's own class definition creates the minimal diversity necessary for federal jurisdiction on this point we would actually all tonight mr wang can i ask you about that i'm sorry again to interrupt so you flip donna's to the home state exception and tell me if i'm looking at this right when i'm looking at whether there is minimal diversity not the home state exception you bear the burden when you flip it to the home state exception they bear the burd and if that matters then it seems to me you have to show us that someone is a citizen of another state on your half of the bargain in that comes first in my looking at that right that's correct the complaint by the definition itself can determine that it's reasonable to conclude one on tennis or one citizen outside the forum state i think that the crux of on this point your  honor where that involve and are part of has purchased in new jersey and the court centrally stated that you know it's reasonable to conclude that at least one purchaser was not a resident of the state many people and companies in the neighboring state of pennsylvania  york traveling to new jersey to buy consumer goods that say i guess on your list are lying about making any assumptions when it comes to our jurisdiction when it's a simple i mean you could take discovery on this point in state court presumably some say even in federal court although i would have issue with that but in state court and then remove the case once you found that out why wouldn't that be the proper way to handle this well your honor i think you point out that it is possible that we could sort of engage in some further fact finding on this but we think the face of the complaint is clear i think in light of the fact that tennessee is bordered by eight states in light of the fact that we've pointed out that had food is a fairly transitive product in light of the fact that there are many residents of tennessee such as college students or military personnel that have no intent to stay there and led to these facts i think it's reasonable to conclude that at least one one first and last three years  purchased prescription pet food in the state of tennessee who is not a mr wang mr this judge that i'm just trying to make sure i understand this and it's really following up on just the bar's question and the questions are your friends on the other side so let's say hypothetically it does go back to stay court how does that work i mean so one i heard you referring to discovery which might determine whether the complaint refers exclusively to tennessee citizens and you're suggesting that if it turns out it applies outside of that you could then remove it remove it then and i guess with the same be true if the only royal canine comes into the case is that how it works but i just don't i'm embarrassed to say i don't know so a case gets back to stay court it's there we now have more discovery which potentially becomes the predicate for pulling it back into federal court no your honor we would oppose remanding this case to state court large then i know i i understand i got that that i was trying to do and that's why i said hypothetically it goes back to state court and i just don't understand as part of removal jurisdiction is it really possible to remove it yet again well i think that the a little bit unclear on that point but sudden and i think part of that is one of the needs circumstances involved in this case and very rarely would you have a plaintiff suing a company that he didn't buy a product from and refusing to sue the company that he did buy a product from that's it i think there's some discretion and i think the reason that we would urge this court to affirm the district court's decision is that when you go through and play out all the play out all of the points here it's more likely than not they will find that one person the fugitive class is not a tennessee citizen it's more likely than not that you'll find that can and is that it is the proper defendant it's more likely than not we believe that there are more rank new rules and they're real very new anymore but if i remember this correctly don't the new rules allow you if it wasn't removable at the time you removed it doesn't the clock start taking upon receipt of the information or paper that allows you to determine it is removable so for example if we were to read me and say no diversity you get back in take discovery and discover that someone is actually a citizen of arkansas that's going to the university of tennessee to go to your hypothetical and it is this it is in the state of arkansas it would allow you to remove within a certain time period of discovering that is that accurate that's true i think that that's intentionally conceded that he was a citizen of tennessee and i just want to point out that i don't think that our papers bear that point out on paragraph ten of our notice for removal we very clearly state that he's a resident of tennessee we discussed the residency unship distinction on pages fourteen and fifteen and opposing his motion every man and before this court on one of opposing it permission to appeal and opposing his primary we again point out that he's a resident of tennessee and if there are no to strictly limited to citizens of tennessee and your honors right it was a little sloppy bleeding and sloppy draftsmanship no question about that should have been written but that doesn't mean that it's effect is not valid i mean the classed as we instead of putting it in one paragraph we put it into including two different spots and again poorly drafted but the class is in our complaint is strictly limited to citizens of tennessee the fact that the i mean i mean of course the planet is a  resident of knox county and you in the paragraph eleven and eighty three paragraph eleven being this strictly limited the citizens paragraph eighty three being the one that does the quote unquote class definition or it can be can be and should have been read together as a whole the district court didn't do that she basically picked one paragraph over another and that's not we don't think that's the proper way to construe a complaint you take it all you read it all  her assumption she made and really the whole discussion about whether or not out of state people were going to come by dog food and all that we were we think the district court sort of penalize us for not proving all that up we didn't think we had to we limited our class to citizens of tennessee and what other what better proof could we present i mean i could present evidence that x number of people living on the border and a  lot of people driving to knoxville that you know you teach students that kind of thing but that's not as good as specifically limiting limiting the class in our in our complaint so we thin the judge just didn't take that didn't didn't take that really in to put a lot of weight and so we think she was wrong about that as to the the royal canin rule nineteen argument i just don't make three quick bullet points one jurisdiction is determined and that's why we're talking about jurisdiction at the time of the file and you look at the complaint that's on file world kane and wasn't wasn't sued in the party it doesn't matter if a defendant thinks they ought to be in the case or not and it just doesn't  matter you know and the proper in the third is if the defendant in this case mars thinks that we were incorrect they have reasons to get out the proper procedural devices is a motion to dismiss in state court and they have every right to do it and