james meyer i will speak for five minutes on the diversity jurisdiction issue then ms ms his team he will speak for five minutes on the finality issue and i'll take three more minutes on the negligence claim stated that the party invoking the court's jurisdiction bears the burden of proving the existence of federal jurisdiction and the court should involve doubts and uncertainties were guarding the existence of federal jurisdiction in favor of a nonmoving party and in favor of remand courts frequently weigh the parties for an statements or testimony to resolve questions of their citizenship when considered with other evidence the part testimony can resolve uncertainty and the removing party has a heavy responsibility to develop the record and the pelly seem to understand this and in their petition to reopen discovery they asserted they would the pose mr yemen is and or proper foundation she does not provide any street address or even a city where mr yemen is lived on the date of removal but only a source generally he resides in florida that she never knows but she never explains how she knows this to be true nowhere does she state that she's ever lived with her father or even visited him we don't even know if she lives in florida or whether she was living in florida at any time in two thousand and nine the time  l for that matter we don't know whether she was in contact with them in two thousand and nine with all of the unique makeup of family units in this day and age it can't be assumed that even a biological daughter would automatically know her father's place of residence ten years before after being hired like green as i'm sorry this is a brand that's ron are you saying that the only evidence that would have been acceptable to not unless it is your honor i guess it is possible that if ms yeah malaysian as had provided a proper foundation this court might determine she could do so but defendant has provided no authority that would allow a family member to stand in place of the party in question have procedure on her yes always ok after being fired by green oz in february of two thousand and nine mr dimon as could have moved anywhere in search of another job and he was apparently in savannah georgia for an unknown period of time shortly before the time of removal the affidavit which was drafted by pelleas counsel the yaml a never signed illustrates at least an attempt to lay a foundation it would have had yaml a swayer that she lived in the miami area in close proximity to her father for the last number of years and that she was in regular communication with him notably no such statements appear in her declaration and there's also an obvious inconsistency about mr jennings as is alleged medical condition yaml only swears  suffered a stroke that's affected his ability to communicate this cast doubts upon the claim that he's incapable of giving testimony or signing an affidavit as many stroke patients are able to communicate despite having their ability to speak somewhat affect repeatedly attempted to shift their burden to prove them as meyer and they've attempted to say that it's only plausible that yemen has was in florida then that's enough but that's not the standard rather appellants must make an affirmative showing and prove citizenship a preponderance of the evidence therefore we think this case should be remanded to the state court at this time miss hashmi will will speak wrong how are we not still in the same problem we are under ryan as we were in two thousand and sixteen when a panel of this court dismissed well st your honor on the rd page i'm sorry terribly horribly no good or wrong and i think that you asked it absolutely had the power to do something here my question to you is not that my question to you is don't we still have the same problem that you had to manufacture appellate jurisdiction isn't that isn't that exactly what you guys did know because an actuality the dismissal order is an adverse judgment because the plaintiff also expressed asked for the interest of a final judgment for the name put no six we've dealt with exactly that argument the government there made that exact argument that hey you know what the statue limitations expired so you know we don't know and the response of the court is we're really not the best party to decide that because the foley and there's all sorts of exceptions the statute of limitations that we don't have a record for and we're not that's the litigate in front of them and so we don't think that is an exception to right well that's right and that's why this court state treasurer versus per let me ask you this any time prior to filing judgment and so if you take the fall of voluntary dismissal and come back ten years later and say reopen and dismissed those voluntary dismissals that we had know and yell at me in the attorneys this morning so it's probably me my question my question is if as you just argued to the district court has a party to reopen any judgment before final judgment was entered and if final judgment hasn't been entered because there was the dismissal without prejudice of some of the client then why would that not mean that a decade after the dismissal without prejudice you could go on and say there's no final judgment you still have the authority to reopen the case and dismiss these voluntary dismissals with parties with multiple stacey to bankrupt isn't that isn't that exactly why ryan prohibits doing exactly what the plaintiffs did in this case i mean isn't that exactly the point of trying which is to say we're going to draw a line that if there's an adverse judgment and then you  i'm not suggesting there should be inquiry if there were ever a court case that if this court does find that we are in the finality trap rather than some exception this is the case that could bring that under re and then we hear from that happily and then you get two minutes reply which i would think would be in advance so let's listen for mr savva st and then you got your two minutes of reply yes d a condition that we were told makes it difficult for him to communicate instead we got a declaration a sworn declaration from the daughter we provided that to the p finding is not plausible on the record that would be the the remedy but we would say that the the arguments that mr davis raised have to do with credibility but certainly we put in the evidence of his driver's licen that where this court said that self serving statements of one's domicile are often looked at with given little weight because of the credibility issues and i think that that's what mr davis was denied they claim that that the novel of the motion is itself a final judgment which doesn't i don't think stands up to logic because it would mean that if the court granted them the motion or denied the motion it wouldn't matter clearly said in multiple opinion that the appropriate way to handle the situation if a point of one is to go back and get a dismissal with prejudice meaning that they are playing games to manufacture jurisdiction and who really are getting rid of all other parties case well i think on the subject and and but but i also tend to agree with you that it's not appealable that seems to be somewhat wrong and that seems to be missing something because that that generally the harshness of ryan in this case as a result of the plaintiff's machinations mr sammy said that the case has a tortured history and it does but the reason it has a torture history is because the plaintiff has tried to manufacture jurisdiction and then go back and find a way to repair the errors that were made the ryan rule has been around for a long time and is very motion within the within the proper time period if it's a day late if it's a week late the appeal as is is is gone so one thing here is that the ryan rule is clear another thing that is a concern is that the plaintiff did not simply dismiss the claim and ordered to take an appeal on a claim that was dismissed or that that was granted summary judgment but instead they dismiss proceedings a nullity and leaves the parties as if the action had never been brought based on that it would not be a remedy if the decision is to dismiss the remainder of the action without prejudice in order to be able to then appeal a decision that had been issued years earlier and mind you the district court had denied a request for rule fifty four dollars b certification clearly telling the plaintiff and the formality in other words we have to look at what really is this really final or not not just the magic words that are used by a party and as i understand it at the time that they filed a motion to dismiss without prejudice decided well as the law of the case certainly in other words if something had changed between the time that the st appeal was dismissed and now there might be an argument to say that there is now something new for this court to consider but instead what we have is the same arguments that could and should have been made in the st appeal in fact there was a motion for reconsideration on these issues that were that was denied the the state treasurer versus barrett case that's out i think good reasoning for applying the ryan rule but it also says that the decisions that are made in litigation that yes it did not accomplish what the plaintiff wanted which was to manufacture appellate jurisdiction so and in fact serve the purpose in this case that it was intended to serve which is to prevent the litigants from circumventing the denial rule fifty four b certificate by dismissing all of the parties without without prejudice i think that the option of returning to the say that they cannot they cannot reach merits here there is also a procedural argument that we raise which is that the plaintiff score the apple on apple and excuse me on this and this court did