this court is well aware there are eight elements that support or oppose extension i believe that mr mchugh to and that the majority of those elements in the trial court here should have abstained in favor of the state court proceedings i'm sorry you have your best argument abstention i think it's an important argument you are because we have we have competing issues here one of which is whether there was concurrent jurisdiction and the other is whether there is exclusive jurisdiction in the state court if you are correct about that i mean it's stench and you say the court should have what by what standard every view do we consider that well i think the standard are very few on the court misconstrued mr mchugh his arguments below with regard to tension selection or wild in the district court first that's correct and the opposition your opposition was filed for some reason in state court rather than federal court that's correct your honor is not a strategic choice that your client takes the consequences of  yes but it is also a legal issue because of the will we jump past extension to the issue of exclusive jurisdiction this employment contract said that the the issues between these parties would be decided under state well yes i mean the we can see the arbitration was in westchester which isn't in dayton but the parties agreed to that's a non issue right then we get to the issue of state court jurisdiction by agreement of the parties and the difference between the federal arbitration act and the ohio act the federal arbitration act is not contain a provision that's in the ohio law act which is twenty seven eleven sixteen of the ohio revised code which says if the parties basically confer jurisdiction on the court of common pleas in the state of ohio they haven't really did that arbitration clause number nine that's where i'm having trouble with your argument arbitration clause finishes with the phrase judgment they may be entered in any court having jurisdiction thereof and the federal court has jurisdiction when the issue want to go back to citizenship or diversity citizenship well i think diversity is another issue that i would i mean let's stick with this low clause right here all right i think the problem is the ambiguity in the documents i don't i don't necessarily agree that it's that clear says the court of competent jurisdiction but this case can be cited must be decided under state law then don't we have a struggle with the federal air arbitration act in the ohio arbitration act which again triggers revised code section twenty seven eleven sixteen which says if the parties the jurisdiction should be had in the company's court of the county in the state where the parties agree the federal arbitration act isn't have a similar provision but section nine of the u code says that if the parties do not agree the federal arbitration act doesn't necessarily automatically get the agreement have to come probably because in your situation i take it the everybody all all the terms of the agreement between reynolds and your client occurred in that non compete agreement that is correct that is where we find the arbitration clause the agreement to arbitrate and the t terms that limit or don't limit within that clause number line i agree with that you think i'd note about that is again not untypical of employment agreements and not compete this was a basically take it or leave it agreement and i think the burden on the clarity of the language therefore falls was reynolds and not with mr mchugh into his interpretation of that agreement that he had a right to file in state court because the high arbitration act in that because substantive law applied so let me talk for a little bit before i go back to abstention on the diversity question the only way that we get into federal court is if we have diversity of citizenship and meet the monetary limitation there's no question that there was diversity of students and ship well mr coote it did agree to come into ohio for arbitration that was a term of the contract and i don't think he could object to that however diversity in this case was based on the complaint that reynolds filed in the arbitration upon which they proceeded to lose and that in the our creator found not only were they not damaged but they weren't damaged as a result of anything that mr mchugh did in other words the arbitrator said there is no causation between their claim of damages and mr macoutes having left their employee so then reynolds turns around and runs into federal government of damages that's somewhat distinct from what i think you're about to argue that the court said you don't have to write a check that with you does not have to write a check but the court i think knowledge that the there was a damage by preventing him from calling upon those customers that he that he took from the you know had from the other business the arbitrator found that mr mcveigh violated non compete and non solicitation agreements but the arbitrator specifically found that reynolds hadn't been damaged by any of that and so to turn around and run into federal court and say your honor will we have diversity jurisdiction on on an issue that we lost on in the underline action when we're asking the federal court to confirm that award seems to me to be in a positive i think the reality of it is if there was a measure of damage under the arbitration award it would have been mr mcewen is the impact junk differently provided to reynolds in the arbitration so it's our view that there really never was diversity and therefore if there wasn't diversity we don't ever get to abstention so let me if i may go back to the issue abstention because i think the factors there tie into the rest of the discussion we're having first of all you know the first question is did the state court assume jurisdiction over property in the short answer that question is no but reynolds proceeded to file a counter claim for attorney's fees in the state action which says to me that they thought the state court had some jurisdiction to do something so under this court's decision in paine webber versus cohen i would say that factor for abstention disease or neutral or favorable to mccullough the second issue is the question of piecemeal the geisha in which this court said income and really is not a it's not a negative thing in the reality of it is the federal court if it had jurisdiction to confirm had jurisdiction to conf the state court would then have jurisdiction to review and modify these are parallel actions there was not a risk of piecemeal results or different results between the two courts on that issue the order in which jurisdiction was of taint of course this court in cohen said that's doesn't matter it's what is the progress of the litigation and as we know reynolds came into federal court first and wanted to speed through confirmation before mr have his three months right to oppose it he chose to file in state court rather than federal court but he had that right in federal court had he done it and it would not have changed the speediness of the proceedings if you filed in federal court the court would still have the same obligation of review that the stake or had and as we pointed out our briefing the state court immediately took this matter up when it was filed and we asked the federal court to stay proceedings in favor of the state court so there's nothing to say that the federal court would have acted faster than the state court given the fact that mr mchugh did exercise his right to seek to modify or confirm what we've discussed the issue of governing law the trial court found that the federal arbitration act applied i struggle with that because of the terms of their own agreement i think the ohio act applied procedurally and also ohio substantive law applied so i think  unlike in color where we were dealing with a governmental a congressional action state law was at issue here and so there's no benefit necessarily to being in the in the federal court finally on the issue of the progress of the case and whether reynolds could be protected in state court there's no evidence that reynolds would have suffered any harm being in state court in therefore i think the factors overwhelmingly favor m argument with our argues that the federal court had some jurisdiction and the state court had some because of some peculiarities of ohio law under the o that judge rhodes looked at the question about whether or not the state court jurisdiction was really in love with the filing and he concluded that he couldn't tell we were seeking our attorneys fees because we didn't think it was properly filed or we thought frankly that it was frivolous should this court view that as acquiescence in the in the jurisdiction in state court to the state court proceeding defer to them judge you know i'd say not and i would say you know what we have here really is the benefit of the state court decision as you know there were a number of pleading filed by both parties and ultimately the state court decided that case and that decision is attached to my response to mr mchugh does motion for  reconsideration in this case and the state court judge adkins specifically said that with respect to plaintiff's assertion that the employment agreement specifically designated exclusive jurisdiction and cool while courts of common pleas the court finds that this is not persuasive upon review of the employment agreement the court finds that the clause at issue states that the arbitration shall take place in dayton ohio and quote quoting from the employment agreement on or judgment upon the award that rendered it may be entered in any court having jurisdiction thereof based upon the plain language of court dismissal or what did it state it granted our pending motion to stay pending the federal courts determination it stayed the action and did anything happen to wrap it up you know and they filed a motion to be to be clear on that they filed a motion for reconsideration and the judge also decided that it's you and refused to reconsider it and essentially reiterated the point of view that with that i just quoted and that is that that the district court confirmed that it had jurisdiction based on diversity of citizenship and that it in fact had the we had filed their first and said that he will defer to this to the federal district judge to decide the issue on the merits so to come back to the jurisdictional argument very quickly to be sure that this is clear is that reynolds is a corporation incorporated in the laws of ohio and maintains its principal place of business in ohio it's a citizen vote mr mcclintock is a citizen of illinois there is diverse citizenship and we made the allegation in our argues that in as much as the arbitrator found no right to damages that undermines your amounting cause controversy judge there's that two different analysis on two different issues number one the court the arbitrator looked at the damages issue years and concluded that we hadn't established the proximate cause of those damages and frankly i thought i  fashioned the remedy based upon the facts of this case and he concluded that mr mchugh to should be enjoined from soliciting and contacting and doing business with rentals customers that he contacted while he was an employee of reynolds he was he was targeting our customers the only customers that he had that mr good had a year and a half after he had started to work for a competitor were our customers and in fact what he did is he looked at his very best customers and targeted them first as to generate the revenues for himself and what we did on director for rentals mr have as i'm sure the court knows what we when you look at the value of the litigation and you look at the object of the litigation and in this case the object of the litigation is the injunction and you try to place some value on that object of the litigation the cases say in fact there's a two thousand and five case in the northern district of ohio the automatic machinery case that says that when you're looking at a non compete agreement you look at the revenues generated by the employee for the company by the former employer immediately preceding his termination or you can look at the last profit sustained by the employer so what mr have noted is in his affidavit he covered both aspects of them first he looked at m employment history for five years and as it relates to immediately before his term anation and he calculated the revenues that mr mchugh to earn on behalf of the company for each of those five years before his is terminations for those five years mr mchugh the exceeded generating eight hundred thousand dollars a year with the exception of one year and it was like say let's look at what damages we've sustained since so he looked at the sixteen months following the revenues from these customers following mr magruder as terminations and concluded that reynolds had  happened about attorney's fees here did the arbitrator in the arbitration proceeding your honor denied any relief as it relates to the recovery of attorneys fees and and  up yes ma'am and when they say that you know we rushed to judgment push this proceeding along we got the injunction he was actively soliciting our customers we knew that so we didn't we were concerned that he wouldn't abide by the injunction and less we got to conform to a judgment so that's what we did i think that's exactly why women had valid cases and and that's what the law provides it says we can do that any time within a year and we got after it so to turn to the second issue the abstention issue first of all judge rhodes specifically addressed all eight of the factors that relate to whether the court should abstain or not and judge rose found that we satisfied seven of the eight of those factors the only one that he hesitated about was the piecemeal that geisha but having having made those fact findings i would respectfully submit that those findings are subject to the abuse of discretion standard and and judge rose did not uses discretion held up or clear the clear error standard i think in like questioning she responded that it was clear  standard and i think he satisfies that standard and if it's clear i think that's even a harder standard for her so that we all know that the federal district judge has the obligation to exercise its jurisdiction and he has in the in the language of the cases and the unflagging obligation to accept that jurisdiction but he looked at the collar you know it took out of an abundance of completeness in fairness he looked at the factors one by one that are with ways in favor of jurisdiction number three the avoidance of peace military action as i mentioned earlier when we filed the suit it wasn't piecemeal it was in federal court they waited until the last second to file their motion to vacate on the on the edge of their time expiring they splinted the case they filed a new case and they filed in a separate court i submit that it was for the purposes of delayed the proceeding and mr mchugh didn't even attach it to the crown court because if you looked at the transcript for the four days of the proceeding you would have seen that mr skidmore was perfectly fair number  jurisdiction we filed first that that's clear number five the source of governing law whether it's state or federal i would submit that that the federal arbitration act applies it's going to apply as well in state court we have bailed ourselves of the federal arbitration act and not any state court act like the balkan case there they moved to compel under state law they moved to compel arbitration under state law they when they went to arbitration the court stayed the state court stayed the proceedings when they got an award they went back to state court and asked for a confirmation of the award and in fact in the state of california state judge went so far as to confirm the award all of that to stop so i judge it in judge rose finds all seven factors seven of the eight in favor of not abstaining and we have insufficient yes ma'am thank you to wrap up on the issue of attorney's fees judge cook the counseling the still pending stay clear in the state court judge has held that proceeding it's not been dismissed so i think the it could be as as simply explained as oversight that is just lost in the ether though the court actually put an order on believe it in the order that mr allen was reading from that said they were reserving hearing on the attorney's fees issue on the counter claim so i think the reality is going to press that get back into court and find out whether you all attorney's fees well i guess i'm thinking mr allen is worried that it was a kind of a one off and they only did it to protect themselves and there wasn't seriously intended as a claim for remedy so you are going to press that i take it well yes if the interview is the case should have been litigated in state court and i actually don't understand why we can't say your the argument you're going to pose now is if you succeed in this court what might happen in state court will in state court the action to modify or vacate is a very simple issue and then we would have to defend the three c's provision if it's not withdrawn long and it took a while electronically but we managed to get a filed so i think that that record is complete the only other thing i go back to is the diversity issue i don't know how mr have never submit a declaration in support diversity in federal court after they didn't ask for a review of that issue from the arbitration and to turn around and say well we really have been damaged in the value of the injunctive relief is a five hundred sixty thousand when the arbitrator did and found i find that to be the case the key with the arbitration was to stop included from competing and giving away information the arbitrator specifically said i'm not going to give damages and no attorney fees but you've got to give back their documents and you've got a not give up their information he's complied with that the only issue that mr mchugh the head with the arbitration after the arbitrator found that reynolds agreement is basically void and on and forcible is that he extended