permission of seven minutes and reserving three minutes for rebuttal in the first seven minutes i should like to address for the fact that i take this case over from my partner jackie regal who died of a heart attack on october of the past year with that in mind there is a slight change when we change counsel of how i view those facts so my first would be to point out some additional facts from a new perspective which would be mine versus my partners then i would address the three issues which are presented in the briefs that of the lack of complete diversity requiring reversal on remand to state court a lack or denial as an abuse of process abuse of discretion when the appellant sought to amend or dismissed his action and then the third the grant of the summary judgment motion turning to that first issue mammoth insurance company and an appropriate time that merged with us health care and became even larger and has two significant presence one of the east coast one of the west coast on the east coast they developed a program of introduce this chain direct marketing concept it was an abysmal failure in fresno not far from here the brokers rebelled they shut down california is that in the interest to eliminate the broker in the chain of authority starting at the carrier at the top broker in the middle and the ultimate client at the end ultimately the individuals who make up clients by the way this is a case how is that a policy issue before us it's before you in the breach of contract your honor here we have a case where mr kerner and entered into a broker carrier contract will agreement that contract and which is one of the fundamental issues of this case was entered into between clay kerner and that now u s health care of california in fifteen hundred for a period of ten years to the court noting the tenants breach that or they were dissatisfied with mr turner the reason the summary judgment failed such quote decided in the court below was because they were firing corner anyways shore ten year relationship to make it unlikely i don't even think i need to address that let me tell you what maybe was an issue counsel in the time that you have it might help if you focused on some of the issues that you'd like us to decide in your favor thank you excuse me and your your complaint was never amended to add the california subsidy or whatever you want to call it we were denied the right to amanda and did you appeal the denial of the right to amend and  california it was this is the appeal of that decision your honor it was in fact the denial to a man in the summary judgment for just weeks or months apart in addressing that issue your honor i think it's significant to note that the contract attached to the complaint identified that it was between mr kreiner and us healthcare of california and in the body of the complaint we allege that that was what the case was about now we sued a defendant that did not filed on behalf of a u s health care of california look just below the defendant's representation in the upper left hand corner of the pleading and the first statement is answer filed by berger kahn on behalf of  and if there is no doubt on our motion to remain in our motion to amend in our motion to dismiss we again inform the court and as this court knows in a leading ninth circuit cour supreme court case caterpillar versus lewis i hope that the judge that answers your question there are many additional facts which were before the court the court was explicitly aware ma but the major issue here is there is a there is no completely averse what's the public policy behind complete diversity to protect the out of state litigants from prejudice by the state courts at the u s health care of california employs thousands of persons in california it's a major employer it generates hundreds if not tens of millions if not hundreds of millions of dollars in revenue in this state i don't think they're going to be prejudiced by the state courts as an out of out of state fellow by the way they are the state corporation their principal place of doing business here under your ninth circuit standard judge if i can be so bold the call activities say mr kerner only ever had business dealings with us health care of california employees in california at their primary place of business in california with managing officers directors and revenues generated in california from california citizens there mr reiner time is running allow you to research from time to rebuttal here from the other side thank you thank you is clear and i think the overriding fact that should be recognized you're not to diminish the importance of these procedural issues but the overriding fact here is that there is absolutely nothing that it and i did as evidenced by the declarations of the heritage provider group which deprived mr kerner of any benefit every action was in conformance with the alleged representations or at that time there was nothing known as that in the u s health care thing that entity is the entity which we presume was the target defendant that presumption was based upon a number of facts one of them is that the attach we look at your answer you also will find out that the gas was on behalf of and the health care of california that is not true that is not true that is not true the the answer there is a in the answer so in the body of the answer it is on contained on the answer yes they are and it's part of the right now you're telling us that was a mistake i'm saying that that reference in the upper left hand corner counsel for it was a mistake i'm also saying that everywhere else within that document including in the preamble comes now if there is one well that goes to an issue that isn't actually before the court and that would be the issue of the motion to manned and that was never raised on appeal in the in the opening brief but one when they disposed of his services they just want to head with the contract and they never did get that issue resolved well it was not well corporation we presented more than ample evidence describing where their principal place of business was their state of incorporation where they conducted business and i think that is what judge well relied upon in making his ru believe that i would go so far to say it was mandated that the court say no to that and why should i say that is because the plaintiffs waited ten months ok until approximately three months before trial until all of th discovery had been completed until they had made motion after motion after motion trying to relieve themselves in one way or another from their failure to demand a jury first initially they failed to demand a jury we went to the status conference that was brought up they made a motion to extend the time within which to request a jury that was denied then they made the motion or i may be out of order at one point they made a motion to remember as well i guess that was the first motion then they made a motion for the for extra time to file a jury trial then they made a motion to amend their complaint so they can destroy diversity and then they made their motion to dismiss all of this happens well after the case is in as is on its way we have taken depositions after depositions we have made motions we in fact our motion for summary judgment on file at the time of the argument on the motion to remain and in every juncture and if you look at the opinions of the court and the argument as well which d extensively before the judge at the onset as we said we were in fact only nineteen days late in fire night out that's late that it was nineteen days following the notice of removal that we filed with the current county superior court seeking our default i'll grant you we have our procedural problems here that were created i think however all in all there's no question but that each of the rulings is fully supported by the record certainly the rulings on the motion for summary judgment are more than amply supported by the decorations there is no way in which any of those claims for relief could possibly have prevailed based upon the fact that the people at heritage said they terminated the relationship before and mr turner was the record for the policies that were in effect at that time but as judge quote recognized and as we argued below there is a transition period for each next period of insurance and therefore for all insurance to be issued as of january one two thousand mr turner had been terminated as the as the broker of record and one other factor i should bring up there was a representation that mr turner in one nine described the second would be the motion to dismiss and i believe that that's a review for an abuse of discretion and there was ample rationale for judge while to believe that the sole purpose was as in rust to secure the jury trial and the third issue was the propriety of granting a motion for summary judgment and i believe the evidence is overwhelming in that regard all of the other causes all the other motions including the motion to amend were not raised on appeal and therefore not me in your brief where you appealed the denial of the motion to amend your complaint i'm very sorry your honor that i said this was the only appeal ever filed the five misspoke i would correct that now well in this appeal the other points were voluntarily dismissed pursuant your stipulation by the parties after the motion to remain had been heard and he cited  fact that you can either amend or dismiss and he did discuss it in legal authority whether he raised it as one of the issues on appeal like he may have made in an important area or if i could reserve the rest of my time first of all  in regard to that dispute judge very you had raised the question was mr coroner the agent of record at the time this was fancied into that answer is an admission in their brief sound on page thirty two where they say that the letter going out to mr kerner was dated november eleventh one thousand nine hundred ninety nine telling him that he would be dismissed january first two thousand and i would point out to the court that today as we sit here mr kerner remains a broker of record for some of the policies of insurance that he had with this national group in october twenty was terminated from the h m o with kaiser and on nov eleventh he was terminated from the bulk of the balance of the cases he still has a one twenty five policy and a dental policy i believe or have to check that you're on but there's still sort of policies that remain broken record today i would now in my remaining minutes answer judge i believe again it's the answer i gave to judge to you before which is that the answer and first representation on behalf of us healthcare of california that is a caliph inc a california corporation that immediately destroys completes the first and second contract attached to the current a complaint is trying by an entity as us health care of california i'm now going to be forced to use some of my remaining minutes to address that issue you know sign for their legal relationship he sent it to them they inadvertently attached two pages from a contract you had with mettler farms another entity those two pages were inadvertently put into this file because th contract the signature page was accurate it was not discovered until the trial in district court that that had been done it was fair their own legal counsel laura jackson who filed the declaration her south said there is no contract between california and mr karner she was wrong she was wrong because that now made a mistake and made a mistake because it was their error only the first page says it's the u s health care bacchis signature page u s health care for california we didn't know that we concentrated on the signature ph that's the narrow issue that's how this court should decide that was before the court at the time the motion for removal and re man were brought before and certainly later on i would like to spend one minute on the summary judgment if you are going to you're over your time or go ahead thank you your hon the issue is control point out that this court of the year after aetna told heritage medical group that they would do a better job than kerner medical group fired them because they had lousy service the public policy issue before this court is do we want to eliminate the brokers in california do we want to put the carriers directly to the clients when that tried to occur the broker shut down at night aetna backed off it's no longer an issue because aetna found out they didn't sell