case has more issues in it than a law school federal proceed your exam i've counted at least four distinct major issues only a lot of removal that are brought up in this case have a question about or just if this case were remanded to the state court and if and a final judgment were entered against lane would use be able to appeal the c e it's about costco and i think that's not an enforceable settlement agreement on anything other than kos i get that i just wondered if he didn't there it missed the ground there was so c n n's summary judgment victory if you will they said that if there was a state court judgment as there was in that case i think it was the district court of columbia but anyway they said it was not appealable through the federal system in that case and you forfeit in new york you meant about c and by not raising removed that has been staying no further proceedings can take place in the state court as long as this case is here and i understand that that judge judge mcbride notes it in his opinion that the relevance of the and judgment and what he seems to think is the non appeal ability that is that there's no way that seon is coming back into this case and you didn't see any spark i can find it anywhere in the briefs and it for us anything  know for example i think it's a six circuit has said that the standard for improper jointer is much higher than the summary judgment standard we also know that there was a district court case in montana which said a plaintiff didn't even respond to a summary judgment in state court and the court there said that is not evidence of improper jointer or talking about the bad faith finding in the law school exam nature of this of this case found as a matter of fact looks to me that your client exercised bad faith and so my question is what is the center of us the bad faith finding well first i think before we get there we have to ask did the judge pretrial deadline he thought he'd gotten as much money as he could from there and it wasn't worth it to accept the money and have them appear as a seven person on the charge under section thirty three point zero one two of the civil practice and ribbons code and he could either leave a man and have two lawyers shooting at him or he could take the money and have them submit it or he could dismissal and he would solve both problems friday this happened to a friday monday all the charges all the lebanese all this stuff was going to be due it was just a coincidence that it just happened two years after that when i think an entire two days after the when this and this is the problem you had this affidavit he's twisted and reverse the standard of review that is supposed to be followed when there is a remove all that is to look at the evidence in the light most favorable to the plaintiff and same thing as far as the regiment it was a harness really the improper joinder it was it that's right did we get to the question what evidence did you present in the state court about see any end in response to the motion for we complete what was the contracts and the fact that this concrete which ended up a culvert they had to come from some source which caused the dam which caused the lake i mean what did you how did you show that it came from we did not and that was the path that was the problem that the judge had i think in what he granted the summary judgment was to be able to identify that indeed the concrete came from cover to that ended up a culprit can i ask you about the the  voluntary involuntary theory i mean there is this there is apparently a split of authority on that we did some independent research and we found a couple of the cases on that and  might my problem with that theory if the fifth circuit has room to decide it is that suppose you had a more classic sort of fraudulent joinder case against let's say the manufacturer of some medicine and you him plead the doctor and you him plead the local pharmacist just to make sure you're going to say in state court and the district court rules that doctor didn't even see this patient prescribe in this medicine no evidence summary judgment well you knew that to your client knows that your client has that theory too but that isn't in but that would be an involuntary summary judgment but why should that be held against the defendant when it is no more secure or no more probative of a state court case that could be found about c n n depositing the concrete in the wrong place and then you couldn't find it in and then the question would be where do we examine that examine that analysis because it's not it's not exactly a twelve b six and state court you have to have time for discovery correct before no evidence on summary judgment by him be heard and you know just because a plaintive is not able to meet its evidence re burden doesn't mean that there was fraudulent joinder of the party at the pleadings if there is some reason to think there is some why in the pleadings and this was not done by judge mcbride and all i agree with that in fact i think again going to the standard review context that is not the way you look at the evidence under this standard of review i want to go back to i asked a question earlier that when we got finally to the bottom of which is judgment right talks about c in your reference t footnote right where he says that c n can't come back into this case because apparently it's gone and my question to you is is any of this properly before our court given that you didn't challenge that in your briefs before us as the appellant well clip note to the record about there being some settlement see you look at the record even see that that is simply not the case c n n is crucial to your case and you're challenging the district court's decision to deny your remained the to deny remained correct and so you didn't but you didn't challenge what he had to say about c n n some trying to figure out if it's properly before us or if it's been forfeited well i mean opposition sin is still probably before the trial court i mean the stake here i mean make sure that and that you know if the judge mentions the footnote which is not really relevant it wasn't if you stick to it best i think in the second opinion denying the supposedly and maybe there's a disputed issue about it supposedly on the one side of the road opposite the culvert the road side of the road bed slanted downward and therefore how could the water be crossing the road to the schedule i want to be the first to wait till the last minute i was a state trial judge for eight years and i watched a lot of people wait until the setting was a week away to start running around again wrecks and this is not unusual for the trial date to propel a lot of activity settlement activity discovery activity shouldn't be the way it is it is the way it is so why is that so shocking that they would be running around at the last minute trying to get stuff built the we go back to  before the september non sweet of storm we go back to february there was witness testimony from lane that storm was not responsible for maintaining the silt fences what storm installed the silt fences the insulation of  occurred months before this accident the storm was not responsible for maintaining the silt and says plaintiff knew that in february places designated an expert in march two experts in march neither expert was critical of store in march plaintiffs deposed offered money so star obviously thought there was a reason to do that well it's going to cost too much to try to keep any number of reasons why a party may decide to settle i do not believe it would be probative of whether the party believes  had moving we had a lot of moving parts and so it would have if the depositions had been scheduled then surely we would have we would have participated in those in those depositions or at discovery there was a discovery deadline but we had blown the dead the deadline by agreement we're continuing to conduct and that's very typical in state court unfortunately yes unfortunately i guess things could have changed in the ten years i've been out but it happens it happens so the issue then is  with respect to no experts designated with respect to storm and this relates to the one year deadline right is there any reason for judge mcbride to extend the one year deadline based on the facts of this case judge bright concluded that there was and he pointed to the fact that they had not prepared the case that he pointed to the fact that first and foremost a nonce of the defendant eighteen days before the state court trial suit was supposed that was supposed to start and that according to judge mcbride was enough to equitably told the one year deadline all right this is not a jurisdictional issue the one year deadline is a procedural issue subject to tolling subject to waiver subject to any any number of exceptions so the one year deadline did not apply judgment reinfeldt a basis to to extend the one year deadline and so now we move to the issue of improper jointer all right the first issued the first motion to remand strictly with the one year deadline was a case between the whole it's in lane c it had already been the problem that i have with that analysis is just my memory of how state court stuff works ok let's say this had never been removed see and received summary court we never went to federal court and we went proceeded with either a summary judgment in favor of lane a directed verdict a jury verdict whatever that's the point that's the first time that they could have appealed c n n is that correct fun you're not required to do that you know there are a part to do that but and the judge is not required to grant a severance and in fact it is not standard procedure you would agree with me that had this stayed in state court and had the case gone to trial against lane or wherever happened with lane once lane was disposed of there would have been a final judgment and then they could appeal the c and summary judgment i do agree with you ok so c n n is still a party to the case because otherwise international summary judgment all right so now we are at the second motion to remand right now we have to somehow address the c in c and in this case a right under the fifth circuit sc best the standard unique situation all right because we already know what the state court has done judge bride does not have to predict what the state court will do he already knows we don't know what the court of appeals would do so so this back summary judgments get reversed all the do is just to look at the summary judgment evidence what will the court of appeals do but that's not what we said in flagler says stryker we said you look at the time of filing way back when it was fi state court was there no possibility of recovery but there's also the rule and in the federal law is it in the statute i believe that when a pleading renders a case removable the defendant may remove that is correct that is correct but c n was never make it out of the case by hooey nor what are they no longer a party because in the state court that case could have been appealed if we re man today it can be appealed so what i'm saying is flag the striker laid out a process that i don't see the judge provide followed here which is at the time a filing that was critical essential to the decision and flag the structure was at the time of filing was there no possibility of recovery that's what it rested on that's an ongoing decision of this court that neither of you all cite it is critical to this and i don't see that here there was not no possibility of recovery against c n n c n n at the filings it's not a backward looking now we know how things came out of the thank god a jury trial and lost when saying well ok there was no possibly recovery was a jury found against him so this is only after the fact that we know that they would get summary judgment and instead a court that's not improper joran or we're not try ok so it's not the front of the case that is absolutely correct now what we're dealing with is a standard is no reasonable basis for the court to predict that the oids might be able to recover against at what point at the time it was filed at i think you can agree to disagree on task before judge mcbride was to review whether or not there was a reasonable basis for the court to predict that c n n could recover isn't it right that he said what is the reason basis he finds and i can give you the record s you want it it's it's forty three eighty three he finds that the whites have not made any argument that they with is a possibility of recovering again c n n he speculates in a footnote that the reason for that is that maybe they settled but he says that they didn't make any showing briefs before us they talk a lot about c e and they talk about a lot about how the summary judgment order was wrong but they don't say anything about appealing it or any reasonable probability that they will be able to recover against c of this i'm just trying to figure out if any of this is even before a circus been forfeited by your friends on the other side i want to ensue correct questions directly as i can and i don't know that i have a direct question but what i will say is this is that mcbride looked at the summary judgment evidence concluded that the summary judgment evidence rendered it  could recover from c e in and also pointed out judge mcbride also pointed out the difficulty of obtaining summary judgment in texas state court and specifically the two hundred seventy first district the state court summary judgment proceed the whites produced a three dimensional scan of the accident site that three dimensional scan of the accident site would allow us to look at any particular point in the accident their experts three d scans of the accident site that proved that three d scanned would allow us to then take a point here you compare it to a point here you compare the elevations lanes expert took that three d data  able to determine that the entire eastern side of this road yell addition is water flowed from east to west the entire eastern side of this road the lip of the road the edge of the road was higher than the ground adjacent to it therefor water could not flow up over the road cannot flow uphill and then come down east to west as the plaintiffs theory proposed are right they have an expert that says if the water got to a certain level then they could do that presumably we're talking about some type of flood of biblical proportions to do that right but the thing about it is their expert did not identify what that particular level was right it did not tire anything that relates to this occident to the water actually achieving the level necessary to get up over the road in then come down east to west as the plaintiffs well is of the fundamental issues is whether lane had actual knowledge of a dangerous condition now not only a dangerous condition but it has to be a reason we dangerous condition the texas supreme court has said ice naturally for there is no evidence that les knew there was ice on the road that morning there's no way they can show lynn had actual knowledge of the ice on the road that morning and that's what's required when you're dealing with a licensee under texas premises liability  is simply no evidence of all right but in the you know in the state court proceeding they say you you agree that there were fact issues about that well to say we agree that there were fact issue but it is in the context of the summary judgment hearing right lawyers can make points and make arguments as they see fit these are factual concessions that were made by anybody at the concession was that there was a fact issue not that there was a that the fact was has the plaintiffs stated is that what you're trying to say what i think what i'm trying to say your honor is that when attorneys make summary judgment arguments attorneys will decide strategic reasons one way or the other why they don't want to pursue a particular ground or why they believe one particular ground may be more effective at that hearing either way it's an interlocutory proceeding we get to federal court in judgment there locked into a from that from the court standpoint i stating something it doesn't make something a fact issue because you say it's a fact issue as opposed to an evidentiary admission ah the fact is that what i'm saying i do your honor and i would say it does not write it does not produce that result simply because summary judgment proceedings or questions of law were arguing were making legal arguments questions of law week as as as attorneys we stipulate about questions of law law is law law is what it is we can stipulate whether it was raining outside we can see if you're late whether it was the light was red or the light was green right the way we get we can't go to the next step which is  stipulate that there is a fact issue when that is a question for the court to rule in did i understand you from before about the three d model that that comes after the discussion about whether there specter shoes director that's correct that's that's new evidence that came in after the initial stake or summary judgment proceed let me ask you one other thing i have to reply on this ground but are you familiar with the case called crock of b reynolds tobacco for thirty six f thirty five twenty for sixty three sorry for thirty six after five twenty nine talks about remove ability and in the context of the fucking finally your honor the with respect to the summary judgment issue there is no evidence that lane had any not any actual knowledge of a dangerous condition days the accident itself occurred between four and four thirty am in the morning there were no workers present at that time mr white was driving to work and encountered a patch of ice and plaintiffs have not the whites have not told us what that contract will condition was but let's assume for the moment it has to do with water draining across the road or the size or depth of this covert t spool nexus covert all right the evidence is clear unequivocal that text never complain never pointed out to wayne that it was not in compliance with the contract text and had people on the job site inspecting the job time is now over and i appreciate the court's time thank you january two thousand and sixteen two weeks after the drowning indicated their stormwater management in drainage measures they employed had not been installed correctly and were not in compliance with the flick of a schedule like was text dot corresponden pages fifteen and twenty of our opening brief is my recollection that had to do with a ball and terry severance by party which was the reason why we could not several out sit in this case snapper versus johnson also was a very similar case from the the circuit on that issue and the court held that if you get a summary judgment against you that is not voluntary that's in the military but if the plaintive agrees to voluntarily separate out that that is a voluntary act that did not happen here that is not involved celts was also asked about stipulate point the point that he's being raised that all this stuff about c n that you didn't explicitly say hey we can still appeal against  clarified restructuring does focus on time removal as well but here at the question is what is the deal with c n n y you talk about improper jointer gee you really raise the points as judge odom pointed out that we are now second motion that was within the thirty days of fourteen forty seven that they were still in part we did we said that there had been a civil judgment that it was an involuntary ruling and that as a result of the involuntary this was like even weeks before trial they removed it i think we filed the very next day we filed a motion emergency motion to remain in frankly all we did in that judge was address the grounds they ra and we didn't address other grounds and after judge mcbride denied that then you know we really got into it because we were still trying to preserve atrocity and we got into it in you know we raised the involuntary as if we were still wondering what happens to see it's kind of a limbo area as far as being able to appeal the c e in summary judgment and i would have to look at that judge it's something i've not seen  once the case is over in federal court the stay created by the what if it but it's i don't know if that helps you i mean i don't know what that does to the state court case these a v c n but as far as the  believe they have he their right to complain about scenes fraudulent jointer there's no circuit decision but there's probably ten twelve district court opinions which say that if you don't raise it in your removal notice removal it's way judge as well we didn't even really know that c m was in play anymore because the state court did to decision and so we were focused on storm and you're the one who ra not stated in the original notice of removed they have an obligation to show jurisdiction exists they have that obligation and they have to consider s any other parties that they have to count for it's not up to me the tell them what you forgot this when you need to amend it or whatever and i know i'm out of time if a judge i don't want to know your question  basically we had camp koch who was an expert who says testified that he did a report that showed that the water from the east side flowed because there had been the drainage ditch had clogged up and cause the water to flow across the the river or the road and this was there was testimony about the police officer the trooper by the gentleman the air traffic control controller who was the second person who went off the road into the lake and by mr points father did for a twenty mile stretch this was the only place where there was ice on the road and despite that drug court found ok thank you very much for the reasons the ten minute