review the dismissal of the government tort liability claim the district court certainly had discretion to dismiss the state law claims of the inception of the use and even later before making substantive rulings impacting that state claim the deck district court actually exercise supplemental jurisdiction over the g l a claim for approximately two and one half years before dismissing it without prejudice on case including the g p l a claim were also a trial the district court granted summary judgment and dismissed the federal claims but dismissed the g p l a claim without prejudice approximately one year before dismissing the entire case however the district court made a substantive ruling that impacted the g l a claim the district court construed the civil rights exception of the g t o and entered an order holding the a claim should not be dismissed because the federal civil rights claim against the county had been dismissed for failure to state a claim that's not human seventy five dollars in the district court's record kno law is always an abuse of discretion the district court's opinion created a split of authority with other district courts in tennessee implicitly rejected the interpretation of the statute by the tennessee court o and respectfully ignored this court's reported opinion the only reported decision of this court construing the civil rights exception the johnson case the district court never vacated that opinion when it subsequently a year later dismissed the g p l a claim without prejudice and arguably that earlier ruling became a lot of this case are binding on these parties in state court under the doctrine of collateral estoppel the parties agree that the issue should be submitted to the tennessee supreme court for a final decision resolving the split of the party alternatively knox county asserts that it's entitled to the noble review of that order because it involved interpretation of the government precedential effect in this case and another case turning to the merits of the g p l a civil rights exception the situation now with this district court's opinion is intolerable plaintiff lawyers cannot predict the consequence of filing a lawsuit involving federal civil rights along with the g p l a claim the substantive law and the uni immunity depend on which district judge in our district the case is assigned to in our joint motion we cited the overwhelming majority of district court opinions that go the other way and this this opinion erroneous when we represent employees who are sued along with the county we have to cite the district court's opinion because it favors them under the g p l a either they get that ameena d or the county gets that immunity and so we're in the very awkward position of having to re use the district court's opinion on behalf of our employees when their suit along with the county it requires us getting separate counsel and getting waiver signed for all  or all of our clients and it's just respectfully just created quite a mess there are only two logical ways to construe the civil rights exception either it applies to the allegations of the complaint as this court in the tennessee court of appeals themselves or the plaintiff can make alternative pleadings and the civil rights exception applies at trial in other words in something like an election of remedies that th can go to go to to a journey jury verdict and then take their pick and respectfully no appellate court state or federal has ever gone back far and and the court's opinion in johnson versus city of new construction of the civil rights exception the other problem is the best that construction that allows the claims to go to trial and that's not immunity from suit and this is a sovereign  immunity that that the county holes that's immunity from suit it's not a mere defense to be raised to trial or or an alternative meeting that can be brought all the way to trial there is simply no way to distinguish the court's decision in johnson which did involve summary judgment rather than a motion to dismiss there's no way to know principled way to distinguish that because it doesn't matter under the language of the government tort liability act whether the federal claim has been dismissed for failure to state a claim under rule twelve or for failure to present evidence in support of the claim under rule fifty six dollars either way under this court's decision and johnson you look at the thomas cited in our joint motion in our briefs this court would have to predict that the tennessee supreme court to to adopt the district court's opinion this court would have to do that that the supreme court appeals the seiler merola and cochran cases all of which you know that you determine sovereign immunity under the civil rights civil rights exception from the allegations  had you explained to me chua grigory is not an appropriate consideration here you know you you argue that it cannot be read as creating a categorical rule a mangy are we talking about the right of the court to make that determination to say the tennessee legislature has told us if i is that it wants tennessee courts to resolve these issues d and i am going to different your honor if that had been done at the inception of the case prior to making a ruling that might the stablish the law of this case or my as that was collateral estoppel and actually preclude the state courts from deciding that at this point when the parties have gone through all of the pretrial litigation and when summary judgment motions of been filed and and decided at this point it is completely inequitable  to two to follow gregory it was understand what you're saying about the district court's decision but i'm just struggling with why it's not within the power of the district court to decide to send it back down your argument that is an equitable i'm asking you a legal question why can't the court  e before dismissing the case without prejudice so it's it's a dismissal with a lot of prejudice against the county we know prejudiced of the plaintiff but there is a there is a opinion of the district court documents seventy dollars that construed the statute along the way and it's our position that once the district court exercises that measure and subject matter jurisdiction over a detail they claim to actually construe it and to deny mo its order i don't believe that the district court certainly did not make a good prior opinion and i don't i didn't read any language i don't believe this goes to the merits of that  final judgment as to the motion to dismiss and it's really not the summary judgment motion which it now says well i'm going to not exercise supplemental jurisdiction without prejudice the problem is the district court already exercised its supplemental jurisdiction by ruling on the motion to dismiss and that that st orders i think it's still in fact and it's binding i think  you'll have your five minutes rebuttal thank you ok versus jonesborough and i think i think it got it wrong but would you would you not agree with me just just a court exercise supplemental jurisdiction over whether or not a district court chooses to exercise jurisdiction over state law claims it's their prerogative we're review for abuse discretion however once the district court decides to exercise its discretion it rules on a state law claim i think our standard review is the noble i think we we were we rule whether they got it right or not and here it appears that they got it wrong well i respectfully disagree i believe that this court has must st decide that there was an abuse of discretion when the district court declined to continue to exercise supplemental jurisdiction and if they did district court argument again and said but here there are good reasons why i think i should exercise go some for middle or the client to exercise supplemental jurisdiction it is considered the argument that no judge you need to decide doesn't dismiss it court has exercised supplemental jurisdiction for a couple of years before reaching that point is really distinction without a difference because even gregory shows us that if we can go all the way to trial three pages devoted a fifteen page opinion devoted solely to this question of whether or not that just your court should continue to exercise its supplemental jurisdiction now going back now as to the merits of it what do you say about the argument that the erroneous ruling on the state immunity law made in the st order is the law of the case and therefore as it's binding on a doctrine of collateral stoppel or law the case that even though this is now in the state courts because there is a ruling in this case that that would that would be binding it is your that that this is some sort of seminal case where judge greer did something that other ports federal and state have not done before ok so i mean it would be persuasive authority and as much as i'm in better order in state court but it's not some controlling it's not but moving on to this idea that it that the judge greer did get it wrong at some point i don't see that either i mean we have a statute here that does not define civil rights and discretion i don't see how substantively mr whistler's the county's argument can be reasonably sustained because civil rights is not defined and it follows a let's see what he actually said as to the merits page eleven and twelve he cites a section under this section the phrase arising out means that a negligence claim asked to quote directly flow from the allegations comprising a federal civil rights claim and he cites butler versus city of inglewood and sheldon versus rutherford count both those cases and say that you look to the allegations in the complaint and if the they go against claim under state law really flows from the same allegations that are based upon the civil rights claim then there is immunity so you have to see if the allegation somehow for the negligence claim are different from the civil rights claim and i'm looking at your  nd amended complaint your nd amended complaint goes through all the allegations and then it has a civil rights count and then it has the state negligent claims count you adopt by reference all the same allegations and then you just say pursuant to the government of unity statute there's no immunity here you have no allegation separate in your complaint separate from the civil rights allegations and under all these authorities if you don't have allegations separate from civil rights there's immunity and i don't see how you get an argument on the merits well i think you need to i think the court needs to distinguish between cases where like the case for example where the the state negligence claim simply cannot be separated from the federal claim involved ok so there are no independent allegations in your complaint i'm just i looked at your complaint to see if you actually  allege something independent you didn't it's a same allegations for the civil rights claim and the negligence claim that these savings facts were constrained generic term civil rights ok so we have to look to the source of the civil rights  but one also has a right to adequate medical care under state ok and we in the jails and we cite that so i think that's a distinction that that that that that must be considered and  still cannot escape the conclusion that where a district court has said there is no civil rights claim here then how in how can we logically say that a claim of negligence aro is an easy decision to make i mean there are different there are arguments on both sides of this issue which is why if the court is inclined to find that judge greer abused his discretion and declining to jonesboro is on point and because i think that's an excessive force case and it goes back to what i've said before that the same the same phenomenon you have enjoyed it those are those are your calls because the source of the negligence is a civil right that's different than what we have here so respectfully we believe this panel are two firm and if there's not really questions i thank you for your time and also thank you for rescheduling this for me thank you you're very welcome or any further questions for mr collins judge batchelder not for me thank you mr winkler you have five minutes rebuttal thank your honor i'd like to address the summary judgment decision the district court found that there was no medical proof of causation and damages and that was the basis for granting summary judgment to dismiss and barrel claims the exact same was true of the state law claim to to prove negligence under ten assuming causation and damages are obviously essential elements and if there was no medical proof that these employees of knox county caused any injury by their delay then the daubert and on the sufficiency of pretrial disclosures of expert witness opinions and a tremendous amount of litigation has gone forward on this d t l a claim beyond just the and briscoe versus fine which say that we have a right of appeal from a dismissal of without prejudice mom we've been harmed if there is to be anything of that line of cases it should certainly apply here where simply applying the very same reasoning from the same order on summary judgment to the additional state law a claim would result in a complete dismissal we believe that the knox county is entitle to that this the st issue that the the construction of the civil rights exception is so important to knox county and we have so many of these cases that we encourage the court to consider certifying the certifying that question you could preach you could tennessee supreme court once and for all to decide this question of state law so that so that we don't have to and planets attorneys also don't have to suffer the situation in future cases where this is a repetitive question that comes up in many many cases ok and you do agree that the cochran decision of the tennessee court of appeals is on point i do and it's unfortunate position and three others i think the jackson case ok are there are there i wished opinions that go against cochran unfortunately the court of appeals publishes very few of their opinions and none of them in this area have been published now except cochran coc on point and it's in your favor why it why do it with it without a conflict with it within the court of appeals in tennessee why why do we certify this to the supreme court the only answer i have arguments we appreciate it the case will be submitted and you major in court this honorable court is now a