you good morning your honor may i please the court this is a case about every man on order under cafe as local controversy exception and the primary issue is whether a plaintiff can prove that greater than two thirds of the members of petered of class are citizens of a foreign state without introducing any evidence that even one actual specific class member is a form state citizen also at issue is whether the plaintiffs he prove that mr bowker is a defendant from whom significant relief is sought even though the plaintiff did not introduce any evidence of bowker's ability to pay a potential judgment so i start with the citizenship issue there's no dispute here four it's clear that a district court shall decline to exercise jurisdiction over a class action which one greater than two thirds of the members of all proposed classes in the aggregate  citizens of the state in which the action was ordinarily originally filed that's the st of the relevant provisions how do we review the trial court's findings in that respect do we review that clear or or do we review that t question of law and fact to which we get to know or do so i think you understand why i asked the question yes your honor i think the b b about which whose alleged conduct forms a significant basis of the claim that turns on what's in the complaint so that that would be subjected to novo review a person from whom significant relief is saw it requires that a plaintiff produce evidence and so that would be subject clear area and what about the rd one who is a citizen of the state in which the action was really filed that again would be clear error of you because you have to prove citizenship with evidence and beyond indeed them for us to say i mean how  we looking at close to them would look at a piece of it for clear a piece of the novel was a mixed question yes you understand why i'm asking the question to be very unusual we've had cases where we've looked at issues that w mix technically mix questions of law in fact and said it so fact laid we really review it for clearer like we had a case years ago dever own acceptance of responsibility and of the sentencing guidelines was that a mix question technically it was but we reviewed it as so fact laden that we just characterized it as something we looked at for clear or i'm just trying to ask you to have to help me understand how do we were view the district court's determinations the st one seems easy to me that's pure fact finding and some of the two looks to me like it's the noble one some of that looks to me like it's a mix question but it would make no sense seems to me for the court ultimately then we'd say would look at number two for the noble even though there's a piece of it we look for clearer anyway that's my question yeah i understand the question you think we have the same reaction as you that parts of sub part two seem as if they would be subject to clear air because though i read i read the briefs of both parties to say we ought to be reviewing the totality of what he did the district court for  and i think whatever the standard is whether it's clear air or de novo it wasn't met here on these two issues so i don't know that the court necessarily has to reach it so focused on citizenship plaintiffs here did not produce any evidence of either of the elements of citizenship residency or an intent to remain for even one specific absent class member the class was defined as persons who resided at one of twenty two dollars florida nursing homes at any point in left were no longer there that's he don't think that he could look to the studies by the centers for medicare and medicaid services nursing home and compendium two thousand and fifteen or a study done at the university of miami or other studies done but the university of rochester these are sort of demographic kinds of studies to inform the decision our position is that plane if needed evidence of the actual citizenship of the sixty seven percent plus one not necessarily your honor i want only on wielded the position you are you taking seems the yield not not necessarily but i think they will have to come forward with some evidence of the actual citizenship of the actual class and you know unlike the example you just posed with eleven thousand here we have a class that was estimated to number three thousand and so it would not have been an unreasonable burden for plaintiffs to come forward with some evidence related to the actual club cases suppose they they they picked out a random sampling of three thousand dollars and they took in one percent and they produced affidavits from one percent of the putative class members saying  were citizens here what are you crazy you think we're going back to chicago we're at the end stage of life and you know we're in a long term care facility but where we're citizens of where we are one percent wouldn't you come back and say that's hardly a fair sampling maybe i think it depends on the methodology it depends on if they apply in that situation the court would apply the same statistical rigor that applied in evans the water industry and in that case the plaintiffs sampled fi dollars class members ninety three percent were deemed to be residents of the state of alabama the court said that statistical evidence wasn't probative because plaintiff failed to show d that the sample was representative of the classes as a whole so they failed to provide a predi extrapolating the results of that sampling to the class as a whole and i think that same analysis would apply here it's our position that the plaintiffs could potentially prove the citizen's citizenship of the class through sampling it just needs to be done according to i'm curious did you put in any evidence we did not suggesting that the methodology employed here was erroneous that you couldn't fairly review these studies to draw some reasonable inferences we did not put in evidence i mean like an expert who said this you can't look at it this way because it's infirm not the work that know your honor we did not put in evidence to  that would come from your obviously unlike a lot of class actions it's available to the offended but not the planet but you agree that i think with one caveat or one nuance i'm not certain that our client has access to the names of every department of motor vehicles and find out the information that way but i'm curious because in the most because the a plaintiff attempted to put on these surveys and things of that  if we just went back is that position you're going to take with the trial judge well our present that they didn't come up with a nothing evidence such as a statistician who would take a fair sampling based on the evidence of you know the demographics of the sample position in response to their motion for discovery it wasn't that we were opposed to discovery on these issues we were opposed to delaying the resolution of the case and delay staying the case staying the consideration of our motion to  dismiss while that discovery took place and so i take it if you go back absolutely that that discovery would be appropriate yes your honor ok yes or we would not be opposed to it but we also would hope that the court the district court which would have jurisdiction under cafe these exceptions are not jurisdictional so the district court would have jurisdiction and it would be free to consider our pending motion to dismiss at the same time that that's governor was taken if we were to agree with your position and the case would would come back to the district court is there an article three standing problem that the plaintiffs have had they alleged an injury in fact below have a legend an injury in fact incomplete in the complaint we have whether the named plaintiff standing correct they wouldn't have to for justice ability purposes establish that on the front end at least that each of the putative absent class members have standing although they could never get a recovery on the back end if they didn't but we've said in fact we put out an opinion just last week on the point class the name plaintiff in the case that you have to establish a standing the basis of their injury but the facilities in fact have licenses correct the facilities have licenses the theory of the complaint is that those licenses should be treated as void due to what plaintiffs contend was a mistake or an have been in a facility they have received care they have paid for the care they're claiming the injury is that because these licenses that exist are void that they should the injury they've suffered i took your arguments to be one of the district court made a mistake in finding the local controversy exception in kaffir would apply here for a couple of reasons and two to the extent that it remanded the action based on the kaffir discretion or exception the district court again made a mistake because the plaintiffs had not proven either of the discretionary exception threshold requirements right discussion or at least the piece of the the two clause might arguably maybe mix question but he accepts that this is clearer view he simply says the evidence that you m statistical evidence based on the studies some government wide studies some private studies by universities were inadmissible that you had to put on a different kind of the things that you had to dwell upon something showing from these unnamed plaintiffs that they fell into that yes that's our understanding of the opponent's argument they made it through our own story in your opinion the district court was free to this type of evidence is not acceptable admissible to answer this question on a case from the th circuit which we've called preston to i'm not sure if that's the exactly the right characterization but it's the in treaties surveys statistics you have to have an expert to interpret those in the absence of an expert which happened that case because the expert was was eliminated that you cannot put these hearsay documents into evidence well my understanding of the le bron case your honor it was that it's not quite that that was not a dispositive element of the case but rather the fact that the expert and that's what most of the opinion as i can recall dealt with the expert was unqualified but furthermore that they both that the materials that he was going he going to use and to testify to really had to do with a population not at all narrowed down to the to the ten off population well it's some of the surveys that you're relying on don't deal with the specific population that's involved and the potential population is involved in this case well that was one of the concerns i think the two issues were i think relevance and reliability in the run indicates to me at least with the absence of that dr mackey i think  his name when he was eliminated the the finan sought to produce all these other surveys and things in that nature including treaties and the court rejected that saying no you don't stand on their own you have to have an expert to interpret and turbulent and set it seems to me we don't have that i can understand that to be an expensive proposition it seems to me as the brunt suggests you need a statistician or social scientist to use the underlying documentation to project that on the projected class and that was absent below if that is admissible then there is no evidence that was reliable evidence for the district court to do what he did well to distinguish le bron a little bit your honor my understanding of the material that was attempted to be it needed evidence was  what we're talking about and the evidence that we presented was let's say a superset of a large sampling size right the ice age throughout florida that the u s census bureau and other agencies put together and and ultimately our people our class are a subset of that in the in le bron minor standing is that material had to do with not necessarily  population to the one that was involved in the le bron case right there in that has to do with relevancy but the issue with regard to reliability seems we dealt with the necessity and it was pretty clear to me  on and you know who the author of that opinion was was that you have to have an expert to interpret these for the court you just can't put them out there and say this because there's nothing to show that they're reliable what they really mean well my understanding to your honor is that one of the distinctions with the le bron information is that that information was more subjective analysis of the results of drug expert opinion with respect to all to the information let me read from that opinion ok that having rejected max expertise the district court was left with studies about which it could not readily determine that that the logical sound ss or liability nor stablish their relevance to the town of population in florida and it seems to me is i understand the various documents and surveys you submit the analogies is perfect well if you look at the nature of the material that we said submitted we take the position that the lower court implicitly took judicial notice of some some of the aspects of these studies if not all of them  right that's right you are and that has it do it but it was relied on power by the district judge and that's exactly think what the bronzes you cannot duplicate absence of an expert now an expert may come in and say based on these various experts i can render an opinion and run that opinion but just to throw out the surveys of the studies let me just again quote from the crime without a qualified expert to comment on the extent to which these results can be different than what we have here well again you're honored if you understand the bronze obviously let me offer you a difference we took issue because none of the articles cited specifically the florida tampa population and therefore concluded without a qualified expert to comment on the extent to which the results could be extrapolated to a population at issue in this case that is a population with a different composition a population in a different place a population at a different time the reliability and relevance could not readily  determined here at least some of the studies the miami university study and the census data wore about the not nursing home population  in in florida so there is some evidence although not all that the there is directly and specifically on the florida nursing home population if there be a difference that seems of florida nursing home residents are from the same county now if i could turn and i understand the laws obviously eleven struck a case and the case that i cited just a moment ago the one that construed preston it came after that in the th circuit  it says and i quote united states since this data is an appropriate and frequent subject of judicial notice so if those numbers are in that that study is in effect like  farmer's almanac that might tell you when the full moon was on you know in july four years ago these are facts that are established and not really subject to dispute the fact that that eighty seven percent of florida nursing  over seventy nine percent have no intention of moving at all not out of state but all across the street wherever that they're staying in there and that's a that's a function of there's a question of if it's an intention of common sense i agree with that and intuition i agree with that that they thought they didn't need any additional evidence and the those court said no actually you can't just say all telephone numbers in kansas city and the courts started down the road of the common sense says that that mostly that's likely to be all kansas city residents however we can't just do that you have to have additional evidence of and both the residence but also the in the intent to remain understanding of citizenship is both the residence plus the intention to remain in a particular spot i do want to make one additional comment about the suggestion dead  survey of the actual class members in all actuality that would produce evidence obviously to be more specific to to our class clearly but is actually less reliable then  even if the attorney the plaintiff's counsel produces some sort of questionnaire to send out to one percent ten percent of the potential class members the class members are this is going to be something repaired in and expectation of litigation and the fact of the matter is they're going to potentially games men ship the answers that you get back most likely lo and behold all crunched through these articles and by the way any sort of crunching that's going on that data explanation for that is in those articles but in any event those are neutral there's no x being ground resident or some subset of that market then presumably you know if you were looking under the talbot standard certainly this information is circumstantial but far more reliable then direct evidence from the class members why is that why you are afraid of gamesmanship on the part of the other side tell me how the survey of the class is not going to provide the best well it will notice what let's just say this way it will provide the best answer for the plank this position because there would be gamesmanship potentially going on and it would be in favor of the class members my position i and i grant that but nonetheless i'm just saying that that is less reliable then th irony is if you sent out a notice to all three thousand dollars and the problem is methodologically designing an accurate survey would be difficult because more likely than not you  responses from a whole bunch of folks who have no interest that's correct your honor and again even though what one might say that well the plane discounts and stuff to find people that know how to do this i don't know that i could would be able to design a questionnaire to send out and get a response and be get a good response that it's both reliable as well as tells us what we want to know where is and we have already that a lot of this information which includes the florida nursing home population at our fingertips from the government sources let me ask a different question i admit it lee your colleague did not raise but was raised in the course of our discussion with you standing is always at issue whether raised by a party or not whether there is a real live case or controversy is always had issue tell me why the named plaintiff would have standing there some concrete injuries sustained that's traceable to the misconduct and redressal by a court well i think as i listen to your honor's asking my learned colleague that that question i i sort of think that we're on the slippery slope of well if there if there is no  court is without the power to entertain the lawsuit in the st place because there is no justiciable controversy there's no injury and nothing congress could say or do in a statute could trump the obligation that there be an article three standing he's not made this argument and it's not really before us in the sense that it was fashioned by anybody but i'm just curious what your responses were is the injury in fact my understanding of the injury and i'm i'm trying to recall back to the exact words that are in the complaint by virtue and i'm let's also keep in keep in mind that there may have been amendments to this complaint but when the wind advertises for a mandatory licensing applications to the agency for health care administration yes your honor well one of the things and i you know i haven't thought this through but there's some question as to what sort of insurance is being carried on  r your honors i'd like to begin with a point of it my colleague made towards the end of his presentation which was that a survey of the actual class members would be worse evidence and less probative than the surveys of people that were in the class that had no nexus to the class that were attached to the riemann motion and our response to that is i guess we give the plaintiffs we believe this is something that the plaintiffs are capable of doing i'm actually working on a case with counsel at the table in the northern district of alabama where we are attempting to prove the citizenship of the class you hire statisticians they conduct surveys of a randomized sample you reach the right amount of the randomized sample to feel confident you can extrapolate the results to the remainder of the class there are well settled statistical method you know methods for doing this and that's something the plaintiff could have done here they could have identified the class members very easily and they could have undertaken some effort to do this  council also said that the studies and surveys they relied upon were of the actual members of the putative class and that's not true either even the the few data points florida nursing home population three dated it predated the class period by in large part but instead concern florida nursing home population that cannot correct your honor but it predated the class period so there are people who are in the class that would not be covered by so again we've kind of raised these issues with the ability to extrapolate to rely upon evidence that doesn't relate to the class we preserved all of these issues below and in our opening brief appendix reversed if there isn't substantial evidence on the record to support it here there's no evidence on the record none of this evidence relates to the citizenship of the actual class curious about something party offers the census data from the united states census bureau without an expert sumi it's otherwise relevant material to the dispute relevant in the sense that it makes a fact in issue more or less likely does he have to put an expert on to establish the foundation the methodology and reliability of the united states census bureau is that your position no your honor i think the us census data document would be admissible if it all of the wise slice it very few people move across state lines in any given year it was around three percent between three and four percent and so that data essentially would prove that you are a citizen of wherever you reside if that data point that very few people move across state lines was sufficient to prove subjective intent then it would prove that everybody had me ask you question these facilities these facilities were so out of the kind that we're providing long term care to the patients right have and what we have in front of us i the only reason i asked the question is if indeed that was the case why couldn't i reasonably infer from that fact alone that it's likely these folks who are citizens of the state within which i somebody goes into a nursing home for long term care they're not coming out here if it's just as simple as that and i suppose it's possible that in some instances they might but i suggest to you that it is indisputable that if you place a parent or a loved one in a long term  care nursing facility that those folks and they send them down in florida that they're going to go back to michigan or ohio or connecticut even assuming are you one of the head came that come from that location i'm just asking what inference one might reasonably draw from the fact that you had a long term nursing care for these people s were going to move is it reasonable to infer that they're going to move so far that they're going to have to go out of the state you know a few responses to that your honor st of all not these facilities are skilled nursing facilities where right is a distinction from long term care sure and so there is no evidence of what percentage where they are long term and what where and again by definition some unknown percentage of the class left would have by definition left those facilities to the inference to what we think is a common sense and friends on a plane of believes it's common sense that if you're in a nursing home you're there to stay your system of the state you're never leaving florida has a lot of residents who are a lot of people who are in florida who may not be residents of florida they may be snowbirds coming down for the winter they may be transients working in florida they may be people who are living in florida but originally hailed from somewhere else and are brief we you know it and there is data in plaintiff's data that shows that in our brief we made the point that it is a commonsense inference that if somebody leaves a nursing home they may very well be returning to the state of origin where their families which is a very common sense thing to think that if somebody who is elderly and infirm and they're leaving a nursing home they're going to go with the people who can help take care and so again but i think all of this illustrates our primary point which is really plaintiffs don't have any evidence of the actual class members they're left to these common sense inferences they can cut both ways no matter how intuitive it may seem the court should set a standard that it requires actual evidence that's consistent with evans certainly consistent with precedent from the th star you accept some of this is admissible certainly the census bureau is admissible what significance we attach to it is another question what inferences we may draw is another question but it's not a case that there is no evidence right i think the census the census data would prove far too much it would be able to citizenship in all cases but i think many of the studies are you know studies of people of hospitals in north carolina of nursing facilities in wisconsin of nursing facilities in new york right that they have a clear either geographic or temporal right you know i'm talking about the stuff though that related to florida but i think or at your argument and we thank you all we will be in recess until nine am tomorrow