court because this case which ostensibly seeks to uphold and enforce the state court of our settlement number one actually contravenes and interferes with the garfield county district court judgment retaining to itself exclusive continuing jurisdiction over that settlement number two it also involves matters that are ancillary to the still pending lindauer case rendering this case under removeable under the law and number three it also contravenes the lindauer parties agreement selecting the continuing exclusive jurisdiction of that state court as their forum don't we have jurisdiction under the class action fairness act parties limit a federal court's jurisdiction either by greenman or state court order your honor in this case the parties had an opportunity to remove the lindauer case from the state court back in two thousand and six when it was filed that chose not to do that cafe doesn't listen it's not a it in answer and it's not respond i'm sorry go ahead sir your honor i think that the short answer is that calf a does not create any new jurisdiction it merely expands jurisdiction and does get creates concurrent jurisdiction we have concurrent jurisdiction and there's nothing you can do to negate jurisdiction that we have been given by congress so you've got to deal with some there's got to be some basis for this trick or to defer and i understand what your argument is which is that there was stake or exclusive jurisdiction but that exclusive jurisdiction no matter whether it was or wasn't exclusive doesn't take away the  concurrent jurisdiction that the federal court had so you got to you've got to deal with at this roger and i think it's apparent two of us agree with that you should deal with i will you're i think it's important to keep in mind that we have subject matter juris diction to the extent that you are making arguments you're not making a subject matter jurisdiction argument you're making an abstention argument and you know the whole  here is just wrong we have subject matter jurisdiction a state court cannot limit federal the only person the only body that can define our jurisdiction is congress is our position that cafe does not change the existing body of a law or regarding the exclusive jurisdiction of the treatment exclusive jurisdiction of the courts it does not change the body of law regarding the non remove ability of cases where  can reach the merits of it you you suggested there was this was ancillary and yet it's a different case we have a subclass of plaintiffs here following a separate case so you're either with it with your or with your removal arguments when we could reach them yes or no which we can't because you didn't bring it within a year of you're arguing that you're arguing i'm not seeking to to remove your honor i'm here challenging removal i mean when when can you do that can you wait until the case has been decided to certainly can't wait until i'm in the in the case and have an opportunity to intervene the case law says that that happens after a action is an end on a settlement agreement it's more than that your honor because this in this case the settlement was embodied in the judgment of the state court and i would suggest to your honor that the issue of of honoring in upholding the exclusive if there was exclusive jurisdiction or even if there wasn't that that that would certainly be a factor in that state court reservation and jurisdiction for the federal court to consider but the problem you have is it did consider that factor here and i understand that it changed its mind after it st decided that that was the overwhelming issue but eventually it did find it rejected your argument based on company principles and it considered and actually decided that the state court had exclusive jurisdiction so assuming that it does and i understand there's a question why it would tell us why the district court erred under comedy it aired under comedy because it did not respect the ancillary nature of the soko that lawsuit even though it was a subset of the lindauer case it was still an action to enforce the settlement agreement that was embodied in the judgment of the garfield county district court which had to retain exclusive jurisdiction to itself well there's a there's a lot to unpack there and again if we if we disagree with you and we think this is not an ancillary action but instead is a separate action on a separate settlement agreement then there's your ken do you have a response to that well st of all your honor this is an action brought to enforce the lindauer settlement agreement over which the district court of garfield county exercised under colorado law exclusive jurisdiction and retained continuing exclusive jurisdiction to enforce and uphold that settlement g e p invoked that same exclusive jurisdiction when it had dispute with a class memory union pacific railroad and that actually that dispute was filed in in garfield county and t e p specifically requested insisted that it be assigned to judge lynch who is the judge who presided in the ongoing lindauer litigation so that she could interpret the release in that case and that dispute was decided in early  and seventeen that matter was concluded right before this lawsuit was filed so when our case is an ongoing case essentially we had a settlement that was a consent decree that down the parties to the court back on the court to exercise supervision in continuing case reflected in the judgment in the courts especially retain continuing exclusive jurisdiction so it's not just a contract it's not just any settlement this is a class action settlement that must be approved by the court that is embodied in the judgment of the district court of garfield county and i believe that of the cases the district court and this court are bound to honor that exclusive jurisdiction that has been exercised and continues to be exercised by the district court of garfield county  underlying point that you're making is that a state court can restrict the subject matter jurisdiction of a federal court that has concurrent jurisdiction then in the prior case in the in the other case yes your honor which is ongoing which is still on file in which the court stated in its judgment that it was retaining exclusive continuing jurisdiction so for all these reasons we feel that claims because it has federal jurisdiction any exact size is ancillary jurisdiction to pick the state claimed ancillary jurisdiction doesn't make any sense in the context of this argument with with respect your honor i think under the m life insurance case this court made clear that retain jurisdiction to enforce a judgment is ancillary to the case in which the judgment was entered that means that the enforcement of the lindauer settlement agreement is ancillary to the lindauer case whether the file of a separate case or not it is still ancillary because it involves the enforcement of that settlement s to which the court in a case where this court had no jurisdiction reserved to itself exclusive jurisdiction to enforce that settlement i think your problem again is actually going back to the removal and you don't think that this should have ever been removed that is at its core a problem is it did get removed and we do have jurisdiction we do have subject matter jurisdiction my question earlier was directed to whether you can even challenge that removal at this point when we've exercised removal and we have you know this case has been ongoing for whatever period of time a year and a half  know why did we this case is in an interesting posture because it is a it is a class action and my clients did not receive notice of the class certification which was only incidental to the present moment of the of the settlement as a fait accompli and in that connection what were they supposed to do preemptively intervene as soon as another case is filed at all they were aware of it they were aware of it certainly long before that they they  at least some months before one of the lawyers was aware you're right and so they certainly could have acted quickly and it presumably you know at that point made the same arguments they eventually made i think for whatever reason they chose to wait till the very end of the litigation when there's a you know there's a settlement there's a settlement agreement the court mean everything's done and that's when they're making their argument it was it wasn't until then your honor that the interests of the class members such as the hours were impacted they certainly could have made an argument much much earlier and that it was very argument which is oh by the way you know state court had exclusive jurisdiction and you belong there and federal court you shouldn't be exercising your concurrent jurisdiction had they done so it appears the federal court would have very definitely said oh ok because that's what it did eventually well it dismissed and then it set then it changed and then the court changed its m basis for the court to abstain in this case but a good basis doesn't get a reversal tell us m judgment and ask the court to enforce the judgment against he e p but if they really were i'm sorry they really weren't seeking sanctions i really really wasn't a typical content procedure they were really seeking enforcement of the settlement agreement motion for contempt against the court's judgment again because this settlement was embodied in a judgment and i would like to reserve the remainder of my time for about a possible let me just ask you did the federal court do anything to enjoying the state court from proceeding with that motion no it did not that it exercise your stiction over the subject matter and entered an order that amended the effectively amended lindauer settlement agreement and we will give you another thirty seconds on rebuttal when the time comes as well those things are thirty pelleas here this morning mr barton who represents the suffolk last is going to argue on behalf of both of you a pelleas on the the nd appeal relating to the fairness of the settlement your honor we agree that the central question in this case is whether or not the district court properly exercised its jurisdiction under the class action fairness act over a class action alleging breach of contract when all the jurisdictional requirements were satisfied and the answer is yes did properly exercise the federal court's jurisdiction under the class action fairness act because all of those elements were satisfied well if the certainly the court had jurisdiction but it probably would have been helpful to the court in determining whether it should abstain if it had been informed early on about what was going on in state court is is it true that that was never the court was never informed about that we did not advise the state court of state court this matter proceeded before the federal court without the federal court having any idea about what was what was going on in the state court shouldn't you have informed the federal court i don't think so your honor because this was a separate class action not brought on behalf by the window hours that we would then have removed that was filed on behalf of the old the entire class this was a separate class action brought by separate royalty owners admitting on the same settlement agreement that the state court had retained jurisdiction and i don't know why you would tell the federal court that it really is a strange argument you seem to be your premise seems to be the federal court doesn't need to know according to us so we're just not going to tell a federal court federal court was pretty upset about that i actually don't think so your honor i think in the hearing on the motion for reconsideration he said the opposite he said that stone there he had no stones to throw in connection with that and said that reasonable minds could differ i think those paraphrases or could differ on whether he should have been advised no i should have differ on whether or not the terms of the final judgment in two thousand and nine entered by the garfield county district court or the two thousand and eight settlement agreement are created in any kind of exclusive jurisdiction that's a different question you're not answering the question but we can move past that i think clearly you might get a sense here the federal court sitting before you is wondering why in the world you didn't tell the federal magistrate judge and maybe that would have changed what happened below and so to the extent that you say well it's just none of his business or something that's not a real winning answer well let  try one more time your honour's to really what was going on here we have a separate cause of action that's filed in denver district court and the terms the subject matter jurisdiction that are being invoked in that complaint i think is an aircraft by the complaint were the original jurisdiction under the colorado constitution of any court of competent jurisdiction to hear a breach of contract and that was the jurisdiction that initially was invoked by the plaintiffs in this quite case and because they proceeded as a class action we removed it under the class action fairness act which provides its own independent jurisdiction here and so we believe that the way that the plaintiff's case was pleaded from the outset provided independent and again you're not addressing what we're talking about which is not disagreeing with you about the basis for jurisdictional years or or removal what we're asking about is why didn't you in the interest of the federal court knowing that the time and the answer to that is reading the case law interpret informed selection clause as a kin to the language that's in both the two thousand and nine order and the two thousand and eight settlement agreement we did not read that language as conferring exclusive jurisdiction court and and that may have been also the conclusion that the magistrate in the district court would have reached but you didn't give him the opportunity in a timely fashion to even look at these issues by the time that the federal court was aware that there were these proceedings in the state court there are even as judge moore said it was all over well but that the only important reason judgment  e that that the the the interveners ever raised this issue of jurisdiction and this is in the transcript from the hearing on the motion for reconsideration is because they wanted to object to the underlying settlement it never had anything to do with any special competence that the garfield county district court would have in this case or any kind of unique state interest so you're suggesting they took a wait and see approach as well which is all right maybe there is you know we're not going to object to federal jurisdiction as long as we say that the issue of subject matter jurisdiction here particularly from the perspective not so much of jurisdiction but of comedy doesn't weigh in favor of dismissal is because no parg advised the federal court of this provision and i'm trying to articulate the plaintiffs didn't do it i think the reason that's articulated in the right in the hearing record for why the interveners didn't do it is they wanted to wait to see how the theory how the proceedings played out well but they say they waited to see if it essentially if it would impact them i mean they don't really even have an argument arguably until they know what that settlement is well i think at their argument when they can may intervene are they i don't think so i think they can intervene actually your honor based on the could have considered comedy and deferring to state court jurisdiction it certainly could have considered if any of the parties including the interveners had raised it at a different proceeding could it considers that regardless of whether the state court retained exclusive jurisdiction or not it's clear the fact wouldn't have needed needed to retain jurisdiction in the underlying orders in order to have jurisdiction over t c p on a royalty underpayment claim in this case the question is whether or not the federal court had jurisdiction as well and it did and so then if the federal court has jurisdiction is there a principle of comedy that in this case that would suggest that the federal court should have deferred and that was and is there i mean it's actually a mean everyone i mean supreme court has sort of told us to refer to  abstention and if you don't fall into one of the recognized abstention doctrines there is no vague comedy that lets a federal court not hear a case would you agree with that i absolutely agree with that iraq so they're arguing as i say the only thing that ability to control its own proceedings how do you respond to that your honor our response is there was no interference with the state court proceedings sefton that case was a breach of contract action and at the time it was filed there was no in force meant garfield county that action wasn't filed until over a year later in september of two thousand and seventeen i'm sorry two thousand eight hundred that's when that action was initially filed and so there's two reasons under those circumstances that younger doesn't apply just make you the st reason is there was no interference with the state court action the state court was asked to proceed on the basis of contempt to enforce its order and could still have proceeded on that basis nd in the hicks case the supreme court recognized an exception to the younger even if a case does get those narrow categories and that exception is when the federal court case has proceeded past an embryonic stage and here we had a year of litigation where the parties exchanged extensive engaged experts negotiated a comprehensive settlement agreement and presented that for the court to offer its preliminary approval and to provisionally certified a class and point class council all of those things proceeded pas that embryonic stage that the court in the his opinion referenced in young in connection with the younger such that even if this court were to believe that this action or the lindauer action arguably falls within prong three or category three of the younger of the younger cases that the supreme court recognized and sprint the exception still applies here if i might just address briefly this argument of ancillary jurisdiction when it comes to the question of ancillary jurisdiction as we point out in our briefs we really think that pits the coning case backwards that is jurisdiction that is asserted when a court would not have otherwise have independent subject matter jurisdiction under the colorado constitution and then was brought on appeal has independent jurisdiction under the class action fairness act and so in examining their st amended complaint and their nd amended complaint you'll see that certain claims they just it just didn't have exclusive jurisdiction to hear these claims in this case and that's why does it matter i'm not following your argument in brief he spent a lot of time talking about the fact that it didn't have exclusive jurisdiction doesn't really think it does matter if it was an intent to plan against the opposite thing right flannigan is whether a federal court can whether the federal court could enjoin state court for proceeding absolutely decided under the anti injunction ackman was interpretation of the anti injunction act right that's correct your honor so it doesn't mean it doesn't suggest in any way that a state court has the ability to restrict federal federal courts to use that but the analysis is really a comedy of alice's and as the poor pointed out here by there in those cases they recognize they have discretion absolutely and that's basically what the district court said here is even though they he found that state court had exclusive jurisdiction nevertheless in light of where this case is at the very end of the litigation and everything that's occurred in transpired i'm not raise that issue your honor because it's so it's fundamentally important to the lindauer is case to read the language in the lindauer settlement and the court's two thousand and nine order as inferring exclusive jurisdiction and we believe that under this court's precedents wh going to very briefly we believe that the court should have been apprised of the jurisdictional facts in garfield county when the settlement was presented to the ministry judge so that he considered as part of a proper rule twenty three analysis nd delay is not a factor under any of the comedy cases that have been cited in any of the briefs in this case that was an invention by this magistrate judge as was his conclusion that the duration of the lindauer settlement agreement because it would extend for the life of the people on space and feel it would somehow make comedy inappropriate there is also no case saying that waiver can occur with respect to comedy in fact this court has ruled that comedy related principles cannot be weighed by the parties in addition your honor the district court had no substantive involvement in this case until all the settlement was presented all the district court all the district court did was the magistrate judge entered a scheduling order and then he modified the schedule in order to extend the discovery period all the discovery was done informally there were no depositions there were no iraqi tories or no request for production nor quest for admission  informally and then they informally went in and presented the settlement to this judge and he promoted very approved it and then when we our clients got notice we recognize the impact that this had on our clients interests and we promptly came into th in attempted to intervene and attempted to raise the jurisdictional issues we filed a motion to dismiss in connection with our motion intervene and for some reason that your time missing i'm sorry on or for all these reasons your honor we would ask the court to reverse and vacate the judge in the district court and to remand with instructions to dismiss this case thank you thank you both for your arguments and the cases submitted next