case back to state court the district court based its attorney's fees award soley on a finding of unusual circumstances and it stated that those unusual circumstances were that liberty mutual had previously and improperly removed this case are the two cases that don't shift sites is the bases for firming that unusual circumstances case neither one of those conserve is a basis for an unusual circumstances finding in this case for two reasons st of all that's a focus on just two of what are multiple cases in which dr shift counsel is represented different watching medical providers summer heat you're focusing on his couch something the same he's focusing on your counsel being the same maybe we should leave the counsel out of this s then i guess it's fair to say this court noted in chan versus liberty mutual these cases come to the court with a background that is rather long and tortured procedural history that is complicated and needs to be seen through that background and context and the background and context is bigger than the curb versus safeco case and the chance versus liberty mutual case there were other cases that were not removed and there were other cases that were removed and state in federal court but even if you just focus on kurds versus you any a basis for doing it again is a bit of a void because the only basis for the remaining and was legal error it was on timeliness holding that this court ran afoul of its precedent and so there was no holding at liberty did anything wrong when you look at that all right and then judge martinez held that that argument was object only reasonable not that it was crap right now either so in that between these two decisions the two thousand and seventeen decision by this court in judge martinez is two thousand and eighteen decision there's no basis for an attorney's fees award against liberty mutual in that case much less against this case and then what about the chances are chan vs safeco wish was removed with chain several do i have the right that's exactly right your honor chambres a safe go was filed in two thousand and fifteen at about the same time the chandlers at liberty mutual was filed it was removed to federal court whenever chance council sent a settlement demand value just the individual portion of his claim at one hundred and twenty five thousand dollars i'm not interested in the money so much as that it was removed and then settled while in federal court so at least there was not an attempt to knock it out of federal court at that diversity under twenty eight u s c section one thousand three hundred and thirty two dollars a and the question was whether or not the amount in controversy to seventy five thousand dollars it required was met and so in order to establish that amount in controversy by the preponderance of the evidence we were allied on the settlement demand that dr shift counsel it served in two thousand and fifteen in chan versus a show that's the exact same claim it's at the context of a class action and it's a settlement demand that says i will settle the individual claim here not the class claim that's going to go forward only the individual claim for one hundred and twenty five thousand dollars excuse me and so on the basis of that we were moved shan versus safeco and then we also because this claim in this case was identical to that claim looked at that settlement offer as evidence of the value of the mountain climb high risk this was that the amount of money in controversy listen one hundred dollars some dollars well the actual damages was that  and the actual damages in chan vs save go were also similarly nominal and so the bulk of it was going to come from attorneys fees both attributable to the individual claims as well as the classic claim and again that's where the settlement demand  you're talking just about the individual playing at this point there's a separate class plane we're going to get to in a minute play those but so with regard to the amount in controversy at this point with regard fees aren't we just talking about the individual claim yes so we are relying in valuing that claim for attorney's fees on the settlement demanded that have been served in chan versus safeco which is the exact same claim practice they challenge the statistical methodology of the computerized database that we rely on to determine whether or not bills are reasonable and so even though the amount of controversy is relatively little you end up litigating very serious and complex substantive issues on the way and that's exactly why even when they had another nominal actual damages claim in chan vs safeco they still said in order to get out of this is going to be one hundred and twenty five thousand dollars and am i right that that was in fact ultimately settled and we don't know for how much it was all that was it was public as to how much it was settled it was settled for one hundred and one thousand dollars and the attorney got eighty five thousand dollars of that the rest of it went to the client the attorney go that is that is in a record of public record that is in the public record it's in the record in this court because we attach that to our notice of removal as part of the evidence of the valuation of this claim so again the initial settlement demand prior prior to the case ultimately settling you said was for one hundred and twenty five thousand dollars even though the dollar value of the underlying claim itself was nominal so what one of the settlement demand consisted of did it say give us one hundred dollars for my client and one hundred and twenty four thousand something for you said one hundred and twenty five dollars to resolve the individual claim that would be inclusive of attorney's fees attributable to the individual claim and then there was a separate paragraph in that and this is a page eighty nine dollars i believe in the record where they say whether you look at the fees before the removal or project forward so now the status is that this court is held in august two thousand and eighteen that you do get to look at fees over the life of the case at the time we  moved it we didn't have the benefit of that decision and so at that time the th circuit said you do get to look at attorney's fees but did not weigh in as to whether or not you had to cut that off at the time or move all district courts were addressing this issue and we're ending up on both sides and we briefed it just like that we said this is an open question in the th circuit we cited the good district court opinion for as we cited the battle and we made an argument as to why the court ought to follow the rule that you get to look over the life of the case particularly because the concern at that time was a concern over speculation and here because of that settlement demand in the chair and versus a few ok so there wasn't any need to speculate we knew exactly what attorneys fees over the life of the case would look like and so now the th circuit has essentially validated the argument that we had made back and responding to the motion to remain and tell me again the name of that case is what the name of that case is of previous cases annoying removals and resolutions am i right that there was in effect an earlier round where shift sues you it was removed and then voluntarily dismissed  that case also reached federal court and was not remained did because it was voluntarily dismissed but effectively got to federal court and was not deemed that's absolutely right it was removed and ended up in front of these claims are subsequently identical to the claims that chan had brought versus liberty mutual but worse day wall the washington intermediate appellate court confronted the federal due process issue relating to  on the federal question jurisdiction i think this court needs to look at dr shifts claim and his decision to represent members of the class that are bound by the law been on settlement as really a recommitment of the chant vs liberty in the chant vs liberty case we knew through the way that case with litigated that there is an unplayed at federal due process claim that dr schiff is going to litigate regardless of whether or not we raise it as an affirmative defense and so when that was refiled essentially in this case we knew by virtue of the chain versus liberty mutual proceeding it's this is just a question of the pension claim pointers and just question is this a separate reason for thinking that there's a possibility as to the jurisdiction of the class the latter right again there is no class at this point i mean that throws me quite a bit right there and there's no certified class reading it because my understanding of those cases is they're talking about embed it claims imbedded in the state law claim as the state law claim is articulated not as this is tertiary i mean st you have to raise the defense and then he has to raise the defense of offense and all of that is contingent on there actually being class it's completely contention i think trick four times three times contingent on the four times contention but it's a little different here because i agree with your honor that in the normal case you had that issue here in chan versus liberty mutual the motion for declare it was so what they didn't do it here they did it they have that in do it here when they refile that claim we knew from the way they had litigated that claim that there was an old due process claim that they were going to but it's not really a claim i mean it's still only ember for sponsoring which offense and not only that even as to the class it only applies to part of the class so and so another possible and this is why the non certified case of the class matters because at that point the class  counsel below ruled or an unusual circumstance if we agree with you that are not legitimate what's your position on whether we should remain and let the district court have the st crack at it all these things we've been talking about i think really big hating the fees award would be sufficient as this court did in chandler's as liberty mutual did not instruct the district court to consider alternative bases for a fee of the board given that both parties have already you know this issue i think there are good policy reasons for there not being if these award in this case but to the extent that this court believes that the object of reasonableness is an issue that needs to be decided i think the court has before removals by the same attorneys in three related cases involving related to monitor this is to court was just wrong she said it was all one case and it wasn't on so i agree with you that the wording in her order was incorrect but if you look at the hearing that judge back when the district court held in chambers the pertinent pages are the supplemental excerpts of record nine hundred and twenty one it's very clear that she understood the to the true facts of the case and that she was looking at three  chan and shift when she was referring to three times it's very clear that she knew the true facts of the case she questioned defense counsel about each of those improper removals she established that in fact none of those cases had been remanded that the remained order hundred and twenty five thousand dollars so that's the same one we were just talking about her act which then was subtle for one hundred and one dollars but it was it was it was stayed in federal court and what i would call schiff one also stayed in federal court because it was voluntarily dismissed that is correct i know one more thing about chand vs safeco which is this offer of judgment interestingly i think seiko may have had an eye to the next removal because they offered in this offer of judgment an individual value of seventy five thousand one dollar and one dollar cent and then added on some attorney's fees and plaintiffs when we accepted that offer of judgment and i'm sure your honour's are familiar with sort of the catch twenty two dollars that offers of judgment can present for plaintiffs in deciding whether to go forward or not  one with eighty five for feeds i mean i'm not saying who manipulated what but that left of the value of the claim below seventy five percent right is that the whole idea partly correct yet you just said that you you wouldn't take an offer that said the value of the case is seventy five dollars and only add a small amount of fees you got a lot of money but you got it mostly for the fees correct we were making clear about the  guess to give you my question or take on this is there been a bunch of these cases some of them did end up staying in federal court and not being remained did they were not remained and for a variety of reasons settlement voluntary dismissal and so on but the notion that this struggle of what chord it should be in is wholly improper when you have this history of sometimes it stays sometimes it doesn't sometimes it's remained it but it's been held not to be objective leon reasonable seems to me to say there's a lot of fighting going on but it's hard to say that that's an unusual circumstance so kind of if you had one all of these before if the judges statement whether proper or not that this is been removed three times it's been kicked back every time and it's been held in reasonable then at think you're good but tell me why what you don't have when you read the the previ contest more like what i said there is a long and complicated history that's correct what is the case is that none of these cases multiple cases have been removed none of the cases have liberty has never and none of the judges in any of these cases have found that its removal was proper and that is what judge pickering was looking at she was focusing on three cases curbs chan versus liberty mutual and shift versus liberty mutual this case and she that and doesn't advert to to chan versus safeco at all ok but i want to go back to what the important thing in this case is she made a finding the district court made a finding of unusual circumstances this is a separate basis for fees and she promised that finding of unusual circumstances and finding that this attorney and these related defendants in related cases had a bad faith motive for removing these cases and that they were doing so in order to prolong the litigation and increase the fees and as  objective lee there is an objective lee reasonable basis for removal kind of whether there is an objective a reasonable basis yes there is not an objectively reasonable basis for every move here and there's multiple reasons liberty made two arguments federal questions stiction and diversity on the federal question question as the th circuit said in a decision to blossom that we supplemented with recently it's not even a close question on this set of facts the class claim here is based only on state law there are no federal law claims here and it's well established that an affirmative defense can't create federal question jurisdiction as your honor said in questioning liberties counsel there's even more steps removed in this being a an affirmative defense there are it's a basically it's all speculation their liberty is moving based on a possible rejoinder to a possible affirmative defense that might come up if in fact the class is later certified to of ways this could never come up today of class at least at the moment does include some or if that's correct it's the other thing that's important is that liberty focuses only on the grable test because it can't get around the fact that you can't manufacture federal question or stiction from an affirmative defense but under grable judge peckman was correct that this would not necessarily be raised as we've talked about it's three steps removed but not only that i think i read graham was talking about a state claim which by definition incorporates imbeds a federal question if you look at the actual cases that's what we're talking about that's not true here this has to do with the particular circumstances of what went on here but it's not an inherent in the state claim in any way liberty admitted in chambers that it could not get two hundred and seventy five thousand with damages alone so the only way it can get there is with fees and it's very clear that you cannot consider fees after the time of removal and you  held that you could i believe that the th circuit recently had that you cannot but what is clear and i can take a look about your honor the st case doesn't say what he says and since i believe that it settled it saying that you can only look at fees and remov after the time of removal regardless of what happened after this time that the relevant point it seems to me is that there was a split in this record quarter thirteen there was no controlling rights or authority on this question so that alone it seems to me give them an objectively reasonable i have no there's no controlling authority in my jurisdiction but there is some authority that firmly supports the position i'm thinking how could any district court so you lack an objective lee reasonable basis for making that argument when other judges have agreed with because that authority that says you can consider post removal fees says you can only do so if you can prove those fees and that they're not speculative and here it is completely speculative what about the settlement offer th we talked about that a little bit but this party's offer to settle all the time it's not necessarily an indication of the value of kylie i mean an offer of judgment was five times the value of the case that we made that clear sorry i am confused and i thought you were not you i don't know if it's you or some other lawyer but i thought it was a plaintiff side offer to settle the case for one hundred and twenty five i thought that was the settlement demand made there was an initial sort of dating back there was an initial settlement a man for one hundred small dollar as the one at issue in this case so they had a reason to extrapolate out that just the majority of that is for attorneys so that in figuring out whether in fact seventy five thousand dollars of attorney's fees would be attributable to this individual we have to look at the status of the cases in the distinctions that was jan versus if there was an individual case in which the class action had already been dismissed this case is a putative class action in which it which if it goes forward it will be litigated in over the individual and then we either do or we don't count these people in the sky if you do consider only the individual claim we can't get the seventy five thousand dollars it would have visit rate individual jurisdiction to say that one hundred and three dollar individual because you have to provide everything you'd have to prove up for the class and it would be extremely time consuming and expensive whether this is such a case that i don't know bill they don't seem to have a record of attitude at all about what you know what would be int  proving in proving this case is clear and i want to go back to the standard of review that the district court was correct about which is that where the complaint states a certain amount and here the complaint stated a certain amount the the case is a good place to look that cites a bunch of cases it's clear that in this limited circumstance where a state certain amount is stated on the face of a complaint the defendant has agreed with a legal certainty that that is not tr of the complaint versus when it's not stated but i i don't want to get too sidetracked about proponents of the evidence versus legal certainty because in either situation liberty has not met its burden of proving that it would necessarily or that it would get  seventy five thousand dollars in fees in non cafe cases the presumption is against removal and all doubts need to be resolved against removal and looking at the number of speculations that liberty has to go through in order to establish i mean if you get to seventy five thousand looking back to why ultimately that's why this removal strategy that liberty mutual under talk is a complete end run around cafe because we have a class claim and instead of him why that matters i mean because either what they did it works or it doesn't work and it doesn't work here for a reason saying when we have a class claim whether that class claim has been certified or not if you want to establish an amount in controversy and in diversity situations to get yourself in a federal court you have to prove five million dollars they can't do that here they don't presume should we then go ahead and decide these objective leo and reasonable issues or should we remain and let the district court have st crack at it i think if you are inclined to decide the objective of the reasonable basis i think you should go ahead and decide it and find that there was no objectively reasonable basis but i urge you to find that there are unusual circumstances here and that the judge did not abuse her discretion in finding that there was a bad faith motive for removing that is reviewed for  discretion and that would seem to be a clear air the standard is very clear that if there's two different interpretations of the evidence and the judge picked one that is not an abuse of discretion and she saw this pattern in the realities of the cases before her with these litigants and all of this yeah there's because they're related companies they were represented by the same attorney and they are related company they're a wholly owned subsidiary and in this line of cases the same attorney has represented them in tandem there have been during the chan versus liberty and chambres is safe ok says there were stipulations that the parties entered into covering both parties there was a joint litigation strategy and the idea there's there's no authority that you would need to limit  looking at unusual circumstances to only the exact defendant in front of you and in fact that would really undermine the purpose of one thousand four hundred and forty seven dollars c with really as martin said vesta the district court with broad discretion to consider unusual circumstances another reason not to address the object of reasonable this is that an attorney's fees a ward in this case really will wards what has been you know throughout the briefing of these issues at the district court event before this court a series of marilyn's arguments we've had and many of these led the district court into air very recent a reason not to address it or do you mean a reason not to find it objective well a reason not to award attorneys fees on one basis or the other that's correct  from the legal certainty standard that we said yes it's in the statute it's in dark cherokee it's in the cases that you cite over and over we have these marilyn's arguments that are being relied on and are being put in front of the district court and in both the kurds case based on subsequent president validate the arguments for move all and then in the chain case where this court rejected the arguments that chance counsel had made our positions are the correct the questions they're in enough and remain and but they're the correct positions and so