removal was was defective the second question is whether there's complete preemption here and other words as as judge by pointed out in the thomas vs us bank case whether this is one of the rare situations where federal law doesn't just provide a defense to to a plaintiff claims but occupies the field to such an extent that plaintiff's claim is transmuted into a federal claim and the third issue is to to look at those three issues in that order because you know obviously if the removal was defective the court doesn't have to determine whether it has subject matter jurisdiction that's moot and if the second point if there is no subject matter jurisdiction then of course that the court doesn't really have the thirty days of the service of summons and complaint on the removing defendant in christians and this court addressed the form that the consent has to take and it said there's no real set rule wasn't done the union pacific u p i'll call them was last served defendant on june tenth as such all dependents under christianson and moreno enterprises had until july tenth to file some timely hybrid rule that says that not everybody has to sign the notice of consent the however let me just quote from the case christianson says in this circuit it is not necessary for all defendants to actually find the christianson in prichard stands for the same same principle as well your honor i think it it very clearly states that there has to be either signing the notice of removal or else some filing by that party cured but the reason why the court should not you know except that here is because the there just isn't any reason given i mean one of the things which is striking about this case is just how barren the record is of any reason why you know stickles didn't  didn't properly when able to properly get their papers and on time there's no statement that you know they had clients that were in jail or out of the country or anything like that your honor as a federal judge we're looking federal issues so why should we be more generous in reading the removal to get to federal court where the issues are going to be determined by federal law you're under state courts apply federal law they handle federal claims they handle federal defenses all the time but federal courts are courts of limited jurisdiction and at least in the part of the country where i practice they that there are overworked courts of courts of limited jurisdiction and you know you can under certain circumstances bring a case into into federal court but you have to follow certain rules and when you fail to follow those rules you know it's you don't you go to the state court which you know you know provides you know no judges  courtrooms and is able to address the same issues if the federal court is able to address and and frankly runners that's what should happen here dealing with the preemption issue if the court or the court pointed out is so strong that you know plaintiff state law claims or are changed into federal claims and logically of course this turns on the issue of whether there is a federal claim for the plaintiff state law and negligence claims or claims that saying that a alternate federal remedy is an absolute prerequisite for the court to find a complete jurisdiction cited to you know beneficial national bank and johnson from this circuit wayne from the ninth could from the  preemption as opposed to ordinary or conflict preemption is rare however and only applies if the federal statutes at issue provide the exclusive cause of action for the claim asserted and also set forth procedures and remedies questions there your honor in it and i think it's very important that we separate them because i think there's a lot of confusion in the briefs some of it perhaps an intentional as to the difference between conflict preemption and complete preemption it's one question to say whether the i c c t a provides a defense to our claims that the railroads negligence caused property damage it's another thing to say that there's complete preemption here complete preemption is a jurisdictional doctrine and stands for the proposition that you've basically got an alternative federal remedy and that's what you should bring similar to the arista cases where you know you don't have a state law claim for breach of contract in bad faith anymore but you've got an aristocrat in for benefits and so if we're going to talk about complete preemption the first question is ok where in the i c c th is or this alternative remedy for for us to you know to bring our negligence claims and the answer is there isn't one and that shows that complete preemption doesn't exist here now you know the second half of the court's question is why you know the specific claims we made here aren't aren't preempted it's a good question it's one that i'm going to answer now but but it should really be the the iowa state court that that decides that because this court does not have subject matter jurisdiction just does the district court did not have subject matter jurisdiction removal jurisdiction to look at the general policy  if we were to say that the state courts have late negligent claims or whatever based on the maintenance and parking i to the bridges and parking trains versus those that interfere with the regulation of the railroads well you know i mean you know this case it's not that dissimilar from from washington county in which  in which this court held that the and of course this was a conflict preemption case rather than a removal complete diversity case but i mean it's still important because this court held that a state statute requiring that railroad bridges be properly maintained was not preempted by the i c c t a a i think it's telling that if ever did that involve a highway well you know i mean there was  there was a highway involved rather than in this case a waterway that's what drove the opinion that you had a highway that or there is regulate for the state can regulate that i mean there was trains but it also involved highway you're out of that's the argument that's made i promise you you can read that opinion and you won't see anything in there about how this is important because highways are involved you're under the the key fact of washington county just like the franks case and numerous other cases that look at this preemption issue is whether you've got a direct impact on reg you've basically got three core areas that the that the i c c da regulate and gives jurisdiction over the surface transportation board you're talking about rates you're talking about routes and you're talking about operations in other words if you've got state regulation over how much you're allowed to charge when you you know your passengers or if you've got state regulation over when you're allowed to drive your trains or where you're allowed to drive your trains then you're going to be within the scope of the surface transportation board if you attempt to directly regulate those things now this court in washington county and numerous other court s have held that when you've got a state law which has only incidental impact on you know those issues then then it's not preempted a normal state law principles would govern and what this court held in washington county is l safety of bridges is a traditional state law concern and requiring the railroads under the same i will statute that we're bringing our claims under requiring the railroads to maintain their bridges and replace them when necessary only has an incidental impact on railroad operations but it's the traditional state law activity and so we're going to hold these claims are not not preempted yesterday or what is the essence of your claim against the union the s t p jurisdiction because it has a direct and substantial impact on railroad operations if on the other hand i were passed a law that said you can't run these are rail cars on this bridge when there's a flood taking place you know i submit you're out of there what we're talking about there is an incidental regulation an incidental impact on un trail untrain operations because how often is there a flood it's not something that railroads are going to have to take into account you know every time they attempt to run a train it's something which is only going to happen to deals with the a traditional area of state law which is you know public safety and has minimal impact on rail operations and so i submit the a that's the answer to beneficial national bank case but it's also you know remarkable holding that as as the failure case said you know congress you know thought that railroads were so important that it intended to immunize them from tort liability it's an open question we haven't had a chance to put on any evidence an open question as to whether they acted in a tortious fashion and that caused the potential an injury to a large number of people and i submit that we you know that there is no congressional intent to immunize railroad from from that type of conduct assuming we can prove our case and that we should be given an opportunity to prove our case i'm happy to answer questions otherwise i'd like to reserve the balance of my time your honor the railroad cars who were on top of the track to save the railroad cars to save the bridges to do both or what my understanding of what happened your honour's they were on the track in order to help stabilize the the bridge and the track in advance of the flood so in other words it was an attempt to save the bridges and the track on top of the bridges not the rail law challenging core railroad operations including where our rail cars can be parked and for how long the loading of these cars on the weight of these cars they seek to hold the defendants liable for taking these actions and at the same time they seek to hold the defendants liable for not taking these actions all the actions taken here were designed to ensure that the railroad could keep its operations running and that close to the heart of the i c c determination act or i and congress intended to federalize regulate it i'm scuse me congress intended to ensure that the regulation of these decisions is exclusively federal on the issue of complete preemption there's already precedent from this court in deferred versus line this quarter found complete preemption under the predecessor scheme which will diskin that had implied conflict preemption after this court issued the decision congress and then acted it out which provided express preemption and much broader preemption and congress did this to free the railroads from the burden of regulation that it put the industry on the brink of financial disaster well let me be clear that there is a federal cause of action and in fact in the case law that we cite the district court cites in the plaintiff's cites they talk about the federal cause of action but i think it's important to understand why the plaintiffs can't com federal cause of action and there's primarily two reasons first is the statute of limitations it's a two year statute of limitations they filed this action about five years after the calls after the accident issue the second reason is because congress wanted doesn't mean that there's no jurisdiction in the courts it means that they can't state a cause of action again they can stay because of the action because because they can't meet a necessary element of the federal cause of action which is to establish the rejected and there was one question that i don't think i answered completely i wanted to go back to it as how would the plans be able to how would would with the surface transportation board be able to provide ride an order that would give them relief in the future and it the service transportation board regulates the construction and operation of rail cars of rail transportation and when they do that they impose conditions on the railroad they impose conditions that that that can be similar to what the plaintiffs are asking ensuring the flea free flow of water in case of a flood and they haven't post those type of conditions landowners have gone in and  along with one hundred forty eight other conditions railroads as the court knows was heavily regulated industry and what they're interested in being regulated is by one entity not fifty because the railroads can't survive  explosion west of fargo will be strictly before the s t b well it depends on i'm not i'm not familiar right now that action actually is before the national transportation board i allegations in their own complaint when they're alleging that we took these actions and in paragraph thirty and joint joint appendix six pages joint appendix five and six they're also complaining that we didn't take those action so how is a railroad going to operate its actions when they want the typical you would have a situation where you have one jury finding the real role liable for taking these actions and then another jury finding them liable for not taking these actions but here they want  jury to take those actions and of course if the railroad didn't take these actions you could be assured that the shipper would be suing the railroad for not ensuring that their transportation was getting to its destination and that's what we were trying to do that's what the company  now of course the residents of cedar rapids received hundreds of millions of dollars in fema disaster relief and the court is seeing some of the litigation from the the insurance companies from property insurance so there was another hundreds of millions of dollars of people receiving property insurance they do have relief but ask to these defendants they do not because they don't fit within the federal s concern that there is a judgment on the play of the question here is preemption should not be it should be without prejudice or should it be so that they  could go somewhere else in the us to be someplace else well as i understand i understand that that was the court's intention that preemption is preempted this cause of action the state cause of action is preempted but it didn't preclude them in fact it referred them to the s t b now we think that issue is moot the plaintiffs have never sought any relief before the s t b a year has gone by and they haven't pursued that option or if you're saying it truly was without acted improperly in placing we did cars on the bridges during the time of the flood that is point of us attempting to impose a state law standard on we're and how the railroads sort of move their cars they're saying the car should have been at that trying to say that this should go to a jury and let the jury decide whether it's negligent well but the way that the jury would decide that would be viability regulation they're buying it if you get a jury trial because of  don't park royal garden here but if you do when you don't maintain it and it damages somebody is property there's a tort claim for recovery damages that's all that is just a just an application of tort law say if there is negligence which parts may cause damage you've got to pay for that that that's not telling them how to maintain the bridge and that's not telling them how to park their cars is just a fad you do a certain way innit injure somebody then you should pay for it but the determination that operational activity was negligence was negligent that is that it violates a duty of care which would be that your claim is you should put up a warning if you can bring that but if your claim is it was negligent for the train to be there at this time blocking the grade crossing that is subject to complete preemption and that was the case removed from  materials but the s t b said as applied to railroads that's preempted because it would restrict the movement of railroad cars the movement of cargo on the railroads through through that area and that's within the sitting on the bedrock and the idea is that when you have this extraordinarily high flood there's a tremendous force of water pushing into the bridge and in an effort to save it from washing away you can stabilize it by adding weight to  a potential federal remedy what we're being told below by union pacific is that there was no possible remedy mention of these two statutes eleven seven zero one eleven seventy four they were never mentioned below they're not in the district judge's order and the first time i've heard that we have a potential claim under the statute but it's time barred is i was sitting right over there at counsel table so so you know if we had potential claims the normal thing that would happen is we would be granted leave to  amend we would amend those claims then we would litigate whether they were time barter or whether there might be some exceptions that you limitations none of that happened none of that happened because you p r good in the district judge found that there was no possible federal claim the held that to the extent the state law there's a state law blocking statute that says you're not allowed to block a crossing for for so many minutes and and the court said that's preempted and correctly so in all the blocking cases number of blocking cases they all say preemption and the reason why of course is that's telling the railroads when they can drive their trains and that's direct regulation of railroad operation how are really in court also said that to the extent the railroad was negligent in failing to properly signal that's not preempted and so i think it's actually a case which is you know it's not my favorite case but it certainly doesn't it isn't harmful to us because that's what we're arguing here we're arguing to the extent the railroad is negligent we should be able to proceed you know your honor the you know there's a lot of cases and they really sort of fall along the lines of is what's being is the state law an attempt to directly regulate transportation i mean if you look at all of them all the blocking cases and as i say they're p m t because they're telling the railroad where they can drive their trains on the other hand the crossing cases and it has nothing to do with the fact that there road involved what it has to do with the fact is that it has only an incidental impact on transportation byt by allowing a landowner to put a crossing over over a rail line and that's that that the call the case that's what they talk about what is the impact on on transportation and then you have the nuisance cases and they go both ways depending on the facts and logically so because depending on the nature of your claim whether you're attempting to impact you know train operations or routes and rates you may be preempted or you may not be so for example you've got them the the fake hard case which you know remained because you know they held that there wasn't subject matter jurisdiction but but they did suggest that nuisance claim that sought to restrict the hours the road could operate might be preempted emmerson it was a nuisance claim that was allowed because it was you know improper discarding of railroad ties and failure to maintain a drainage ditch and that case held that well you know that is only an incidental impact on rail operations and so therefore we're going to say that's not preempted and then you've got pace where the nuisance was you've got this side track that they just put in and it's causing too much noise and smoke and that's clearly preempted because it has a direct impact on you know the notion that whether a road is involved has an in the do with it that's you know sort of moon is full type of attempt to distinguish a case that has nothing to do with the cases actual reasoning is which is whether there's a direct state of ohio have before the flood came in and said you know this bridge is not going to withstand fifty or one hundred year flood we want the railroad to fix it we do it well those are exactly the facts of washington county ok the it was one of the county rather in the state came in and said you know these railroad bridges are old we want you to replace them and they said you can't make us do that and they went to federal court in an attempt to enjoin the county from proceeding in front you know it's an incidental impact on actual rail operations you know if the stated wanted the railroad to instead of fixing the bridge move it two hundred meters to the north or to the south now you're engaged in you know modifying railroad routes and now you're within the scope of i c c t a preemption but just saying you know begin to keep the line where it is but we want a new bridge we want to safe bridge this court how that's not preempted ok we'll take a look at it and we thank you for your arguments thank you you're