untimely amended motion to remain and that means for present purposes that this court can not withstanding the prohibition in fourteen forty seven the review the dream and order works council understandably prize technicality but this is an area that where technicality reigns supreme all in the interests of attempting to ensure  you have before you is wanted in virtually every state of the union except montana did it again so in a state court can be begun in federal court under diversity jurisdiction this is decided by federal district judges reviewed by federal appellate judges all of the time there are obviously other kinds of cases that arise in state administrative agencies that are not as suitable for review in a in a federal district court that  city if chicago case is not in fact a question of subject matter first fiction courts do have subject matter jurisdiction under section thirteen thirty one to review state agency decisions which is not to say that they are going to be doing so in every or maybe even the majority of cases so that as i say the only rule we're arguing for here is that city of shamrock was wrongly decided or sham automotives was wrongly decided based on the city of chicago and that therefore the remained order was neither based on subject matter jurisdiction or if this court asked to review the correctness of shamrock under under lively against well three reasons really your honor of course one is that the we think the rule that we're arguing for follows logically is not that not inevitably from this court's another court's decisions about how a motion must be be considered second i mean there's simply is no provision in the federal rules unlike for example with respect to pleadings a federal permit pleadings to be amended specifically provide for relation back there are many filing of the of the original motion anything in this area the courts have simply insisted that again it's in the overall interest of ensuring prompt and correct disposition that square corners be cut and if you allow an amended motion reconsideration and the intervening cases convince the judge she was wrong and he could then go back and reconsider his original decision and the whole point of trying to get a green man issues decided the media late would be defeated petition first and state court for review because that's what the montana statute requires and then we removed the case because we believe that diversity jurisdiction exists in this case could have been brought in the original in the federal court but we couldn't take that chance because the statute says how you obtain review of the montana agency adjudication which in all respects i remind you again is just as if the case had been tried in a court whether a federal court or a state court and i said in most jurisdictions the country that's the way these claims are adjudicated what montana has done and of course if the court of wise the rules judge haven't has what montana has done is essentially deprive out of state defendants such as their road from ever being able to use the diversity jurisdiction that the constitution and the statutes united states supply so the out of state defendants w street courts to hear cases involving citizens of other states now just now no i said that the constitution of the united states and the judiciary acts of the united states give out of state defendants the right to remove the case to federal court to avoid the risk of right or wrong of that initially argument why didn't you do that initially but as i said we didn't bring the case originally in federal court because the montana statu removed from an agency that agency is not a court and therefore removal does not live from the agency receiving it has to be in court before it can be removed so we removed it as soon as we could under this court's case anything to be said about judge had he is a stickler for procedural persuasion then he knows the word subject matter jurisdiction and what it's means of fortune forty seven d and he read your cases which make the distinction between subject matter and other types of only the removal statute and said whether or not it's a matter of subject matter jurisdiction you can't remove it anyway and we believe that's that was the basis of his holding if you're  i hope it turned out well i get into the substance of my argument i'd like to respond to a couple of the questions that you directed to the appellant first of all it's true that the appellant lost three times in the montana system they lost as a result of the human rights commissions investigation they lost as a result of the department of labor's hearing adversarial hearing and they lost as a result of the human rights commissions review of the record then last for a fourth time its interpretation of the requirement that it be a civil action section thirteen thirty two which is clearly jurisdictional also requires that it be a civil action the same term should be construed in the same matter and i think we're  jurisdiction the conclusion is stated in terms of jurisdiction the whole discussion is stated in terms of jurisdiction it discusses jurisdiction in terms of whether it's a civil action it discusses a civil action in terms of whether it's an appeal based on the record or the lively decision says that this court can be review whether the district courts remain and was in fact based on a jurisdictional issue it however goes on to say that this court can't review the merits of a decision what they're asking the court to do here is review the merits of the jurisdictional decision based on a decision by the u s supreme court in the city of chicago which i don't think changes shamrock in any way but action that's their argument but that argument basically is that the court arrived at the incorrect jurisdictional conclusion to address that argument this court has to reconsider a jurisdictional issue section fourteen forty seven d and c are very clear that this court cannot review jurisdictional issues and that's clearly the basis on which to judge happen remained of the case the district court and i'll give you an example of why that's important i was going to talk a little bit about the all background charles bell rock alleged discrimination in this case back in may of two thousand and three his decision was decided after an adversarial hearing in which most facts are undisputed and two in two thousand  this case was appealed first to the state district court and then remitted by the people who appealed petition for removal by the people who appealed to federal district court in early two thousand and five we're now in two thousand and seven and we're still and we're no further along than he was before he filed his petition i think fourteen forty seven is intended to prevent that kind of delayed justice and that's what's going to happen if this court doesn't adhere to that to the rule i think the whole appeal here is based on a false premise in addition the appeal is based on the fact that there was not a timely motion to remain in this case to the district court that's simply not true there was a timely motion to remand this case to the district court the railroad petition for removal on january twenty fifth of two thousand and five we made our motion three man to the district court based on the jurisdictional issue that i've talked about on february eighteenth of two thousand and five which was less than thirty days later is that exact same motion on which the district court based its decision to remain the only exception or the only difference or distinction in this an abuse of discretion situation for the following reasons the rule based on which the court acted is a purely procedural rule that relates to form a federal civil rule procedure eighty three prohibits district court in this in the federal court system from acting local rules which would deny the important right to a party based on a rule for judge hadn't conceded in his first order that the only thing wrong with the respondents motion to remain hand was a matter of form it had been stated one simple sentence the railroads responses will things have to be done right but you have to recall the real will be filed the petition for removal through a route violated the same rule rule seven point one seven paragraph j which requires conference with the opposing party and state whether the opposing party objects or doesn't appl petitions as well as to motions the railroad didn't follow the rule when it filed its petition and it didn't follow the rule and the of the subsequent four motions that was filed before the district court it was a technical rule related to form and the district it is superfluous to that extent just like it would have been superb to us for the railroad to put into its petition that it had conferred with us and that we have ject but i think even less so in that circumstance than in our circumstance because we were asking the court to overrule something that the railroad had already done so it's purely a rule of the form the district court couldn't dismiss or deny our motion based on a rule form or would have been reversed based on abuse of discretion and i think the hold that it actually denied her motion instead of allowing us to amend our motion and then grassing it exalts form over substance and defeats the whole purpose of section fourteen forty seven and i don't think that's i all right i'm out of time i feel like the only thing i want to get at is that the motion the judge had and granted it was the identical motion that we filed twenty four days after the petition for removal thank you removal which does not require a certificate of conference but we do understand perfectly well why mr bill burkett his counsel are as i say arguing that this is a technicality and there's no way around the fact that it is a technicality in that sense but you know the judge had and did not excuse hold in advance go back and allow to be reconsidered and he is a is a very on the basis of a failure to comply with the many both local and federal requirements for removal and in this costly case it was not putting in the index on the state court documents that accompany the papers when you decided that that is the best way to encourage courts to focus on a correct prompt correct final decision to get the case in and out and obviously this is the point out of this case is not a good example of that we're still fact the defendant inside a long line of cases going back to united states supreme court case mason city which proceeds the shamrock oil on the other cases and the judge today usually had a cat occasion valving shamrock oil exception but mason city says it is the mainspring of the proceedings and that's been applied over and over to who wants something from the other person if in this case mr bill burton wants us to pay him money and do some other things we would like to see this proceeding go away we didn't initiate it we don't want to be around that it is that mean it makes us under the mason city rule the defendant and so while we don't skew that  have and they were very professional and excellent the use these sorts of clients or at least because this is an issue of some importance to vienna seven beyond this particular case it was a difficult wonder solved but we we did and as they say this is the service was