of rewarding sima sonnie the ex wife with over a million dollars in life insurance benefits even though it's really undeniable that she committed fraud against him and against new york life where was he when he marrie what and it says so on the policy now you say there's a duty to explain more sort of the most ordinary kind of case somebody marries somebody buys life insurance and turns over  norms here the norm that i'm familiar with is that when people get married they may transfer individual property jointly this is a transfer from saying individually entirely to his wife in the example and when people get married instead of having their life insurances be for the benefit of all the relatives they turn it over to various processes but that i agree with and i say that in my brief your honor that naming his wife as beneficiary we must this was a genuine marriage right there's no one no one doubts that they were husband and wife for five or six years correct but the point i'm making is that the ownership is different where the where harry was the frog i don't understand what the fraud is is that and i have this in my meant second amended answer is that it is to be explained to the insured if he is not going to be the owner and if i could give an example because the boat turning over ownership there are lots of reasons why you don't make somebody just the beneficiary your view owner the my children are all nurse of my government life insurance not just the beneficiaries the reasons why i made the moaners you there are any number of times you give property and only not make a beneficiary i think your whole argument has to be based i'm saying the something you're in making a spouse the owner of a life insurance policy and i don't you know i don't know where that comes from i think that these are factual inferences that are being made here and that is he saying did not understand that he was not the owner because he wrote a letter to new york life in which the transfer of the whole life policy says on the front page on seventy eight you know this is a transfer of ownership right this section to be completed by the new owner i mean there's nothing subtle about that right i don't disagree with that your honor but my point here is that the an exception to the statute of limitations should have been applied here because this is not an arm's length transaction like when one goes to a car dealer it is between husband wife family members and he was made and alt he was educated he signed the form that said he needed transfer of ownership how does the fiduciary relationship bear on that because he was just directed to sign certain documents and he followed their guidance blindly i home directed by his wife and her sister and if i could just give a brief example this is a can because the whole life everything follow the directions of my wife or my wife's sister there is a bre you know when you get married that's what you do and that it's hard to see where the fraud is in that happening i mean maybe some husbands and wives don't want to do that but but but where is the frog went with  given the plain language of the documents that this was a genuine marriage that they lived together as husband and wife for six years until they divorced where is the fraud i would just if i could follow through with my example because the whole life where's fraud it is transferring money that somebody had and saying we're not going to win this jointly you're not going to have this individual i'm not telling you i'm going to use my sister and i'm going to get all of that money myself and i don't believe that's a reasonable behavior by a spouse and he certainly didn't know about it and that would be the same as if the sister was a bank or bank of america they go in she says we're going to open up a new bank account and then he walks out of the bank and doesn't know that not only is it in her name was as though he didn't understand that he could change his mind later but it still doesn't rise to the level of fraud or misrepresentation it's hard to see how it could rise to the level  the standard in the life insurance industry and i have an expert who would say this is that if anyone but the insured is going to be the owner it has to be disclosed in that he revealed could you take a moment please and discuss your jurisdictional argument that was your your lead why didn't the deposit the funds cure whatever defect there was at the beginning there was a motion to make the deposit and it was not acted on promptly but it was acted on ultimately and everyone went along on the understanding that an actual deposit would be made and that the willingness was made clear by the motion filed by new york life why wasn't that sufficient because section thirteen thirty five expressly says that there has to be two things one is diversity amongst adverse claimants and to a deposit and the strict language of that is that when the deposit was actually made there were not adverse claimants for the one million dollars life insurance policy so there was no jurisdiction in the district court i believe misconstrued the during that time period but it's clear that there cannot be rulings on the merits in the meanwhile and that jurisdiction is determined at the time of the posit in the district court's decision really greatly expands in numerous ways the interplay that are statute  really opened the doors for a number of different cases to be filed in circuit case interpreting it narrowly but the southern district court seemed to have applied is somewhat more practical understanding of the motion because you can't make the deposit without their having the court having approved the motion correct that's correct but they don't touch upon the issue of when do you decide diversity in the statute is really clear it's at the time of filed claims of fraud and so on against new york life yes and against his son hani and those concerned matters worth over seventy five thousand dollars because it was the policy the million dollar policy your clients in indiana and new york life and mr honey are in new york and citizens of new york and i wondered whether there wasn't diversity jurisdiction over those claims that the court properly exercised from november tw a case does but it's then objective analysis time of deposit and then who the clear majority there's rule interplay there that's available and that could have been a remedy used by the court on the basis of the diversity jurisdiction of your cross there has to be complete diversity between them which would not there was diversity between your client from indiana on the one hand and the defendants who you sued or that would include new york life as well as missoni who are both in new york and they were on the other side of the equation of the fraud equation so why wouldn't that be sufficient well because the initial case if we're looking at a rule twenty two analysis which never came into play i don't believe that there would be the diversity because he was  new york in new york life is a new york resident so you're saying the whole thing is flawed because the complaint didn't include a deposit at the same time no i'm saying that when the deposit was made the adverse claimants for the one million dollars policy were both new york residents and if one reads the statute plainly that means there is no jurisdiction over the one million dollar policy over the two hundred fifty thousand dollars policy yes there is jurisdiction because the claimants are indiana claimants or indiana other i don't believe so i believe that the proper result would be that you say you would they should stay but we have any number of cases where we would not be your restriction over one issue there is a restriction over another issue and then it is appropriate because the substantive matters for saying the substantive batter is was very fraught that's what fing you're claiming and isn't that essentially  book i am not aware of any authority that allows pendent jurisdiction of part of an interplay or action i think of it more in the context of other claims not as the rays of an interplay are splitting it up and then saying well we're going to use pendent jurisdiction to include the part that there's no jurisdiction for because the statute does talk about adverse claimants and a single policy if you have some time for a bottle will hear from the other side good morning your honour's may please the court my name is miranda fritz i represent see my son heini who as the court has pointed out was both the owner and the beneficiary of two policies that were acquired or transferred soon after her marriage to s charles in two thousand and seven this case came about because it sends charles's mother in two thousand and fourteen after his death began to try to assert claims to try to get the money at that point they essentially demanded that an inner pleader be filed and that was filed in two thousand and fourteen for the next two and a half years in the district court the court dealt with a series of amended pleading shifting theories various claims multiple motions motions for reconsideration then note that because over the course of those two and a half years magistrate gold issued one decision in which each and every one of a a boatload of assertions and claims was carefully addressed judge gershon then in order to as she put it stanched the flood of filings that was occurring in the district court withdrew the referral and then dealt with the issue herself again issuing repeated and thought that the passage of time doesn't create subject matter jurisdiction i'm concerned about the literal language of section thirteen thirty five which he was required to posit in the court and which didn't occur notwithstanding the pendency of the motion let me go let me just go back to the beginning when the inner pleader began obviously new york life immediately made a motion to deposit the funds at that point diversity was clear it was indiana and new york as the claimants to the fine what happened after that were all a series of machinations by counsel for missing injecting the estate for example into the case argument the argument now is that you don't look at when the complaint was filed you look at when the the posit is made and when the end of the posit wasn't made until much later and at that point the diversity had changed as a practical matter i think the court below had to deal with the fact that that would result in this kind of litigant being able to simply reconstruct and deal with various permutations when the trading but but how do you respond to that argument on on the merits that the diversity does need to be decided at the time that the case is initiated underway when all parties are participating in in it happens concurrently with the rest and that it shouldn't be treated as a separate requirement or later the argument you're making that's exactly correct the statute doesn't say simultaneously these events have to occur what the statute says is that this kind of jurisdiction requires that both of these events occur it's not suggesting and your argument is with it is sensible to read it that way even if the language just get in the way of it couldn't say it better myself i think otherwise the practical issues associated with what mr jurisdiction over view of our policy in this particular circumstance i think that's a very critical point because obviously the facts are identical the facts are completely overlapping and so since these issues terms i'd like to know do we have a four here i don't have authority for that particular point but i do think that in this instance that decision and again we were a year and a half into the case before this issue of the state was injected by mr didden denah chin's oh and what was described by the judge's seeming plain form shopping at that point so i think at that point the decision was going to be made regardless of how the other claim was treated that decision was going to be binding in terms of the other policy regardless and so at that point that issue was going to govern now mr denah chin's i did have another case  filed at least two if not three other cases while we were in front of judge kershaw but in any event the decisions that judge gershon made on that critical underlying issue were inevitably go govern the decision with respect to the entire fine i would i'd like to also add one point of clarification if i may yes in terms of this idea of what was the alleged fraud i just want to point out this was a very peculiar allegation what what mr dennis chin so ultimately asserted and it shifted it was forgery in the beginning and then it shifted through other permutations what he ultimately claimed was simply this that that charles chose not to read with detail the documents that were signed because of some custom and practice in the indian community and so i think all of the case law that we're accustomed to that would apply to say this is not in any way shape or form a fraud is all the more impactful under these circumstances where there's not even an allegation of case that it is a neutral party seeking only to deposit the funds and get out of the case without having to get embroiled in familial disputes between the adverse claimants unfortunately due to ou yes unfortunately here we are and i guess as an initial matter i would like to say that in the end we did deposit the funds and at that point i would submit that new york life role in this action should be finished what there were claims filed against new york life as well since ms honeys sister and father i guess right were agents of new york life so there were allegations of that type made it's not entirely right well characterize yourselves as to see merely a neutral state granted i mean granted we are neutral i mean new york life's position is that the agents were there independent agents new york life is not liable for the acts of independent  agents and their acts cannot be attributed to new york life and your position on jurisdiction of the statute says has deposited that amount and diversity exists and i'm concerned about that that language because obviously you tried to deposit that amount yes but weren't successful for over two years yes your honor new york life attempted to deposit as you know rule sixty seven local rule in federal reserve sixty seven requires an order instructing the clerk of the court to accept the funds so we attempted and we knew it our application to the district court you know numerous times over and because there were so many different motions pending they never got around to granting that order but i would submit that  you know the case law in new york is pretty clear and i can quote to you great american insurance versus gold coast eastern just district court yes well and then we have the recent seven but you know the southern district and the eastern district have have both held that you know when the state holding plaintiff tenders the funds and indicates it it is relinquishing ownership of the funds to the court that is sufficient to establish and maintain jurisdiction what was that what happened to  state farm the jonas oh ok the state farm case i'm sorry yes that can be distinguished in that case actually the court dismissed the action not because there wasn't a pod wasn't a deposit but because there was no true risk of multiple liability in that case so it was really didn't i mean the court did what the court does say the statute requires cash on the barrel head it does your honor however that was in a sense and that that wasn't the reason for the dismissal and i was submit that again it's not it's not controlling here i think it's clear that i mean it wouldn't make sense i think as your honor pointed out earlier to say that there was no jurisdiction the court has no jurisdiction because the funds have been deposited when they have to actually be given jurisdiction in order to issue an order for deposit  so it's illogical to state that the the court had no jurisdiction because the funds weren't deposited when they have to issue an order in order for that to happen so with respect to minimal diversity also your honor i just would like to make clear i think it's very clear in new york that mineral diversity is established at the time the action is commenced and subsequent events changes of isn't i mean you're arguing that we should look at that at the fact that a deposit was made ultimately but at the time but at the time we should consider diversity at the time the complaint was filed which was two and a half years before well i mean the statute requires that both occur to vest the court with subject matter jurisdiction well does require both to occur but it doesn't specifically require that they both occur at the same time or that one should occur before the other doesn't doesn't specify an order it just says that they both have to occur  and i don't see any case last cited by missing that's that that states that there's a specific order in which those two events have to occur whether one needs to occur before the other or they need to be they need to occur at the same time you thank you for the rebuttal now i disagree before you begin let me just ask a quick question am i right in the understanding that missing never waived her claim to the term life policy and that she declined to sign a formal waiver of her rights to the term so she was that the term life policies so even at the time of the deposit she remained a claimant or potential claimant to the term life policy is that right  no i would disagree with regard to sign a waiver she never did sign a waiver and i don't know if it's on the record and i honestly don't have a memory if such a presentation was actually made to her before the deposit but she still had her counter claims against new york life right that made a claim to the term life policy those those that was still the operative complaint now are in an answer right the answer that stated the claims that's is a formal matter it's seemed to me that she was still a claimant to the term life policy and that might preserve jurisdiction is that was that wrong because the statute if one looks at it it says two or more adverse claimants are claiming or may claim all present and into the future she was claiming i mean those those were still the operative that was the operative amended answer and she had declined to which she had not signed any waivers far as the record shows well except she filed a motion with the court saying i'm not making a claim for the one million dollar policy i want to change the answer i'm not making that claim statute says our commission wasn't granted correct if you remain to b say that i believe at least my understanding appendant jurisdiction involves the plaintiff and defendant and then the other state law claims coming in meant that if you do restriction over some things and there were other feelings which were raised the same issue we would consider i don't believe so because this would be an entirely different action and controversy with different claimants ok sorry you don't have the case in point no no your honor and if i could just make a point that the way that the district court interpreted the statute is really to change the words and say have claimed because she was claiming before but not iraq and the words of the statute and the rule that requires permission of the court before you deposit the money easily because i'm not saying that a case should be dismissed right away if the deposit isn't made at the time of commencement all i'm saying is that diversity is determined at the time of deposit which is actually helpful because then it helps weed out from federal jurisdiction cases that don't belong in federal court you're not saying that absent a deposit at the outset there would be no jurisdiction absolutely not i'm saying jurisdiction as judge gershon pointed out can be maintained but i'm saying under the seventh circuit two you need both contemporaneously that was my reading of it and that's the argument you just backed off of i thought that you need one and two simultaneously yes in order for what i'm saying is for jurisdiction or in order to make substantive rulings and that is when diversity is determined i'm saying that i have no quarrel with a little lag time to make the deposit just that diversity is not analyzed at the time of commencement and