once the legal standard the burden of proof issue is clarified that the matter must be reminded if the legal certainty test applies then the only issue before this court is what is the legal standard what is what is the burden of proof  and who bears it and as loudermilk answers the question in plaintiff's mind as to the appropriate test and its legal certainty so it's your position then we're powerless if we determine that legal certainty applied to remand the matter to judge walker to apply that to best and rule accordingly because judge walker and i have a yes or no that's yes your honor because judge walker has already ruled that if the legal certainty test applies the matter must be reminded based on the record before his honor that is that once this court decides that the legal  loudermilk or the latter mccord i think did an excellent job of explaining the underpinnings of removal jurisdiction and explaining that for the purposes of removal jurisdiction the law the analysis the history jurisdiction is the same under traditional diversity jurisdiction removal jurisdiction and under kaffir castle has is a bronze statue with a number of different qualities and factors but for purposes of this particular issue the courts look to the same body of case law the same traditions of narrow federal jurisdiction strictly construing federal judge a federal court strictly constrain their jurisdiction and coming to the same conclusion that the amount of controversy rules i was california statutory health when you're playing rules are complaint play damages under the jurisdictional minimum under seventy five thousand dollars in the jurisdiction section of the complaint the prayer for relief recover as damages which includes these other items is a seventy five thousand dollars or under the jurisdiction to millions and then comply complaint is not precisely say that and and just so that means that  are you contending that your within the description and louder milk or are you closer to the judge kleinfeld to send in a lot of milk with respect to th prove a legal certainty that the amount in controversy is satisfied notwithstanding the prayer for relief in the complaint so the loudermilk court recognized that there are a number of ways of setting forth the same notion that is an amount under the jurisdictional amount but not a specific dollar figure that's really what this case is about where the complaint is clear and i don't think judge walker had a problem understanding that we were seeking less than the jurisdictional amount his issue from the other side controversy that is the total of all of their claims economic damages punitive damages attorneys for these employee benefits may have never played that the total amount of controversy would not exceed seventy five thousand dollars and that is exactly why this case is so different from loudermilk that is exactly why this case is so different from the cases the plaintiffs are allowed on including the burns bill and in this particular case when you look at the complaint what you're going to see is a specified amount or a limitation on quote damages which so you're not arguing the less then issue you're arguing that the total amount in controversy has to be asked to include something beyond damages that's correct your honor in this case the total amount in controversy as framed by the plaintiff's own complaint includes damages and if you look at the body of the complaint particularly paragraph forty three if you look at the planks removal papers you can see the damages to the plaintiff's main economic damages whereas the where as the prayer for a leaf makes clear that the plaintiffs are seeking much more than the damages mentioned in paragraph four well clear on its face that the total amount claimed including attorneys for the use and all other elements would not exceed the jurisdictional minimum you don't get to that issue in this case and loudermilk would not apply because the compliant is unlimited the complaint in this case includes the compensatory damages in paragraph four and then you get to the prayer for relief and there is a list in the prayer for relief of everything that these plaintiffs are claiming and one item is damages then they go on to request punitive damages attorneys for the employee benefits a accounting for money they say is this long list contains no dollar limitation and so this case falls squarely within existing not strict precedent which says that if the amount requested is  unspecified then the preponderance of the evidence standard applies and that's exactly where we are didn't judge by the sort of read into the term damages the attorney's fees as being included fees they count otherwise they don't that is correct right and so in that case there was a statutory entitlement and so they would be included in the amount of controversy in our case there is a statutory entitle went to fees therefore they get included in the amount in controversy in loudermilk is a lot of mail effectively stated that the total of all of her claims including attorney's fees would not go above the jurisdictional minimum in our case the plaintiffs have not said that they've had every opportunity to say that but they have not on the record before the court today you agree with your opponent suggestion that we are powerless even if we determine legal certainly applies to you to return this to judge walker for application of the standard no your honor the you have in that opinion is some dictum that if the court were to apply a different standard from the standard that the court would apply the end of the case would be reminded with that is a far cry from an order of remained and we think that this court that we would certainly hope the court would not depart from existing pressed and apply the ninth of the illegal certainly standard in a case like this but if the court were to do so then i think there would need to be some instruction provided on remained and in particular some clarification of the fact that amounting controversy is not limited to damages do you think you can meet the legal certainty standard we believe that we did your honor and that the reasons why or said this is the alternative holding part of your i mean are you referring to the alternative holding by judge walker yes what we believe that we in fact met the legal certainty standards we respectfully believe that judge walker miss read portions of our removal papers when he stated that all of our  damage statements were made on information and belief we don't believe that that's the case the legal certainty standard essentially is that a judgment below with the jurisdictional minimum would be outside the range of reasonable mists and we believe that we demonstrated that that was the case particularly when attorneys fees employee benefits and other relief are properly added in there is one portion of brill and what the court said there was that if the plaintiff prefers to be in state court but the complaint is silent or ambiguous on one or more ingredients of the amount needed to calculate the amount of controversy then the preponderance standard applies and that's exactly what we have here we have a purported limitation on damages we have no limitation on other key ingredients of the amount of controversy i'm not aware your honor of any district court and certainly no co appeals that has applied the legal certainty standard in a case in which there was not a specific disclaimer of the total amount in controversy let me ask you what w light of your experience in the state court handling of this to be in the district court handling of this case what do you suppose chief judge walker would have done in this case if he had the loudermilk added and to calculate the total amount of controversy and so i think judge walker would have recognized the distinction between this case and loudermilk and the fact that in loudermilk you did have an effective been with the terminology unfortunately in loudermilk and even to some extent in judge walker's statement of the issue in this case it's though damage is an amount of controversy or use some want interchange and we respectfully submit that they are not interchangeable and that this court should use this opportunity to clarify that well can we go back on loudermilk there is certainly the implication and lo milk that they are synonymous i don't believe so your honor because if you look at i believe that section two city of the loudermilk opinion you have a discussion of the fact that in this case all right thank you counselling you the case just argued will be submitted for decision