the class action fairness act the district court made two reversible errors firstly concluded there was no minimal diversity by ignoring evidence regarding the citizenship of the putative class second it ignored the express language of kaffir by measuring diversity of citizenship at the time of filing i'll start with the most blatant error which is the failure to consider evidence of the citizenship of the class the district court refused to consider evidence that class members resided in thirteen different states at page nine of its order the district court said and i quote defendant argues for the first time in its opposition that minimal diversity exists because plainness proposed class include citizens of states that differ from america flight because defendants removal petition cannot be amended to add substance defend its arguments on timely when did you first that's at page one of the order what the court said when we raise it in the petition in the removed petition that's correct so if you look at appellant excerpts of record one of seven is the removal petition look at paragraph ten i'm going to quote from it paragraph ten of the removal petition states this court has original jurisdiction over the action under cafe because it is a civil case a wait for the sirens because it is a civil case filed as a class action where in at least one member if not all of the putative class of plaintiffs is a citizen of a state different from america flight to identify a single member of the class we america flight operates in thirteen different states including puerto rico and that the members of the class included citizens of all thirteen different states including probably cutting other citizens of the states and we because of their addresses and that stated in the address and that just doesn't prove citizenship that's residency that's a different thing that's been that's the records that the that we have the defense records are of the state of residency which is their address which was the last known address where we sent checks the this is obviously an airline the fly around they intil facts and used to sell this to the contrary it's anderson versus watts its united states supreme court case one thirty eight us six ninety four yes so were the courts going with this is the dark cherokee basin case that's the us i think exactly we're yeah and that's where i was headed next the u s supreme court established procedural framework for calf removal in that case and it said a defend seeking to remove only has to file a notice containing a short and plain statement of the grounds for removal this is a pleading standard and courts must quote apply the same liberal rules that are applied to other matters of pleading this is united states supreme court in twenty fourteen it said it further stated a defendant only needs to reset evidence when quote the plaintiff contests or the court questions the defendant's allegation so under ninth circuit law courts construe an opposition remained where evidence is submitted as an amendment to the notice of removal so long as a defendant is submitting additional facts or evidence supporting its removal theories that's the cone vs pet smart case and more recently the general dentistry for kids case so again the starting point is a pleading standard liberal pleading if it's contested we go to an evidentiary standard and we're allowed to offer evidence in support of what we pled and now if that's true and presumption that where they reside is their their domicile for citizenship and we have the humphreys declaration which states there were one hundred fifty one employees that worked in other states other than california and that was the humphreys declaration of paragraphs three and six that of the five hundred nineteen pilots essentially one hundred fifty want to or from other states other than california so based on those two declarations we believe mineral diversity was met to counsel that the chances of you being able to prove in some ultimate platonic sense diversity approaches one hundred percent in this case yes but you didn't identify a single name you didn't in attach records from h r and say here here's the names of all of of a number of members that we think are members of this class and here is our records on their on their state of domicile and therefore we are entitled to the presumption to never gave us a single name other than rodriguez that's correct we gave we gave you data a summary of data based on an affidavit from someone in h r and from was it do that and there's privacy reasons that you don't identify people's addresses but which it can be redacted yeah and you could have given us a list that said here's here's here's here's names let's here's mr smith and he's and he lives in texas there's mr jones and he lives in oklahoma now i understand discussion of that i'd like to move to that a minute here you know that there was no middle berth when the complaint you don't i don't well i i don't believe there was i don't think it was readily apparent from the face of the complaint and at that at that point in time as we know america flight was a resident of california the classes pled dealt with work performed in california theoretically i guess that would still and include these other people from other states but we had the i guess the reason there was no cafe triggered was the complaint alleged to paragraph two that the amount of controversy was was less than five million and so we were stuck for at least that point in time with the allegation from the plane if that the amount of controversy was less than five million it wasn't until centrally two years later that substantial discovery once we filed a summary judgment motion and address yeah yeah at that at the at the time of filing it was california named plaintiffs california defend it we moved our corporate offices to texas at a later point to be below five million so what triggered our inquiry was the hearing on the classification notion where there was a statement made for the first time that seven to ten at trial there in six seven to ten million let me please move to the time of filing when i want to make sure i get to that filing violated the plain language of thirteen thirty two d seven which states the citizenship of plaintiff in the putative class members are determined as of the data filing of the complaint or amended complaint or if the case stated by the initial pleading is not subject to federal jurisdiction as of the date of service by plaintiffs of their amended pleading motion or other paper indicating the existence of federal jurisdiction to the exact same language in fourteen forty six or whatever to determining the time of determining the citizenship of plaintiff in the putative class i believe what you're talking about of fourteen forty six is when when should you move the timing of removal this is deals with specifically determining the citizenship  or rejects the time of filing in cases where the basis for removal arrives later in the action so the district court should have examined citizenship at the time plaintiff indicated he would seek seven to ten million at trial because that was the event that indicated existence of federal jurisdiction at that point in time we had diversity between the name plaintiffs who is a citizen of california and the defendant who is a citizen of nevada in texas so and i am going to reserve some time here but i do want to state why didn't why didn't thirteen thirty two d seven tell courts to measure defendant citizenship at the time the plane of citizenship because i know that's going to come up to thirteen thirty two d seven says you measure the plane of citizenship and  the class at the time this later event right well diversity is a relative concept a party to lawsuits not diverse from itself diversity of citizenship requires a comparison of plaintiffs and if and it's at the same time period it's simple math the plaintiff plus the defendant equals diversity they're never measured at different times this is been the rule for one hundred years there's not a single case cited by the district court or the plaintive that analyzes diversity at different points in time so what did the district court do here it measured plaintiff and defendant citizenship at the same time at the time of filing even though thirteen thirty two d seven says you have to measure plaintiff's citizenship at a later date because the basis for removal jurisdiction didn't exist at the time of the initial pleading so it centrally knew it couldn't pick different time periods and it just chose to ignore thirteen thirty two d seven which states the time of filing rule does not apply when diversity jurisdiction arises later thank you all reserve time sense counsel left off talking in a routes section thirteen thirty two seven and i think we have both of us have a fundamental disagreement on what we think that provisions actually saying i look at that provision and i think it codifies the time of filing rule and the limited exception to that rule which was articulated by the supreme court  councils operating event was for the amount in controversy was when there was a representation by counsel of the amount of damages that were played is that your understanding of what the recipient that's my understanding of what they're arguing that that is the event but i don't believe that event still changes when you're looking to determine people citizenship the time of filing role will still apply and you've got to look at who what their sedition was at the time the case was initially filed and here i ask you this before we get there do you think that was an amended pleading motion or other paper the representation by counsel no i do not and if you look at thirteen thirty two d seven it specifically says it has to be as a date something serv plaintiffs of an amended pleading motion are their paper and then to seek clarification on exactly what the statute meant by that legace laich of history that speaks to this issue and that is in plaint complaint that creates such citizenship or makes it evident so even when you look at the legislative history they're saying plaintiff has to file something that puts into his view the citizenship so a statement in becomes the question what's unusual class actions as you have named parties and then you have unnamed parties and so i think it was just filling in the blank on how do you determine the citizenship of unnamed parties and it was basically saying you still apply the same general jurisdictional principles which would be the time of filing rule and again to go back to legislative history they specifically say that in the history even if you look at p seventy in the legislature report they said well established law exists to resolve these questions and five which is the senate bill for cafe does not change or even complicate the answers to these questions in short the rules of the road on such issues are already established and s by does not change them so i think it's clear that when you look back if there is you know for guidance it's clear they wanted the time of filing rule to apply and even if you look at legislation history the even provide examples showing the application of the time of filing rule they even discussed the supreme court cases that lay out the time of filing for  so i think you know defendants interpretation that somehow this provision thirteen thirty two is is somehow advocating or saying the time of filing rule does not apply or somehow create s an unfair advantage to defendants i think it's for this from the truth i actually think this provision provides further protections from the defendant and by that i mean by articulating that  unnamed representatives are also subject to the time of filing rule that would preclude a plaintiff for instance i couldn't for example follow a complaint and have it seeking to represent california ploy wait til after the fitness thirty day timeframe to seek remount and then you know on day thirty five amend my complaint and say no i'm also seeking to represent pilots that worked in new york as well that's what that time is if i made that men men and i'm bringing in now a whole bunch of pilots that work in new york that's going to be a diff bring in a different party to it and then you would reassess it at that time so that provision actually is to protect defend it from pla s doing that but again i think that just reached i think that just codifies the general jurisdictional principle that has been around for two  evidence and failed to consider evidence that it believes establishes a minimal it's minimal jurisdiction requirement and i want to address the one thing that defend a motion an ex parte motion and they asked the court and that motion that they said that they did not have sufficient time to get evidence to support its amount of controversy january seventeenth they submitted the declaration of mr humphries that include it particularly which defendants are stressing paragraphs three and four and that's where he basically says america why employees approximately three hundred sixty eight pilots who are assigned to bases in california and then in paragraph six says during the cost per day approximately five hundred and one thousand individuals attended america flights indoctrination training so from that statement number one that state those two paragraphs were submitted in connection with establishing the amount of controversy but w them while i'm answering a question because they're saying the judge felt to consider evidence that they present it on the minimum diversity issue but they specifically went to the court and said i only need additional time to get evidence on the amount of controversy but even if you consider that evidence i don't think that care you know carries the day for them i think basically those two statements together what they're basically saying is look if you have about five hundred  in training in california and less than you know three hundred and sixty eight were assigned to california so that's roughly one hundred fifty people fit in there assuming those hundred fifty people must be working such number that aren't working out of california and reside elsewhere whether that's sufficient is another question but those things were before the judge and he didn't talk about them well i would also like to point because we don't even know what time frame they're assessing where these plaintiffs you know at this time assuming this is saying they are citizens of these different states which they don't make that direct statement and they have the records easily do so we don't even know when they assessed it because under the time of filing rule you got to look at where everybody were citizens and located at the time the case was filed we don't know if he determined this information was just based upon where people were located it when the case was filed was this where they were located it right after the classification hearing where they said they learned a removal basis was this determine before they sought removal or after they sought removal there is not sufficient information even in the declaration to make that determination so i think even if you look at all the statements in the court considered it i still don't think that meets the burden of proof for them to establish where these people are and i think it in a normal also the time of filing role and i think if you look at the time of filing role and take into consideration the legislative history which the other side did not address at all in their papers is saying what the trigger for reevaluating where people citizenship you know is when plaintiffs file something that puts seditions ship in dispute which is basically the exception to the time of filing roll and that would be if i'm adding a party or subtracting so if i made it my complaint to add to finish who was in new york or if i added a plaintive who was living elsewhere then that would trigger reevaluating the citizenship and one of the reasons the courts have this rule is just to produce so that courts doesn't have to can keep on repeatedly reevaluating where people you know are living and i also think that the overall picture here and why the courts rely on the time of filing rule is because the purpose of cafe is to protect out of state defendants from being subjected to local bias or local prejudice in this are having worked in california so you know if they picked up and decide to move after it that doesn't create their unilateral decision to move doesn't create somehow the concerns that kaffir was seeking to protect just because they moved to texas doesn't always said and make this case in the interstate case involving national issues just because they moved to texas doesn't mean all of us and they're going to be subjected to local bias particularly since they continue to like well after at some point when they moved although nowhere in the record does it stay exactly when they change this and shit in fact the court wasn't aware no one was aware so i don't you know so i think when you looking at the overall purpose of anyway i think the time of filing rule protects and helps facilitate the policy behind cafe i don't think it in any way impedes that have any other questions for me i believe you know why you know i'm willing to submit my papers so i might just restating what i have laid out there but if you have any more questions i'm more than happy to answer plead something and then argue something different if it comes out later that you're seeking more than five million it triggers it i want to talk about kaufman kaufman in kaufman the district court everybody cited including the district court the third circuit found the district court erred when it applied the time of filing rule to defendant citizenship under cafe under the local controversy exception it stated thirteen thirty two d seven which is our statute here allows the court to evaluate citizenship of defend similar vein we conclude the local controversy exception requires consideration of defendants presently in the action that is if it is a third circuit case here are things that we agree on our case does not follow that line the right way grill stated that minimal diversity should be determined at the time of removal they've tried to distinguish it in their brief we think the operative complaint as well issue i did want to speak to the legislative history one point your honour's both ninth circuit decision in a break go and the ten to ten a case say that legislative history is accorded minimal if any value because it was done after the inactive