represents exxon mobil and all ishaq represents codefendant john hicks i will be arguing on behalf of exxon mobil and mr hicks four hundred seventy years the law of the land has been th removal jurisdiction of the federal courts is exclusive congress decided that there should be a federal form available for the resolution of m t b e related claims and legal actions filed after august eighth two thousand five this being such a suit defendants invoke their right to remove it to federal court the propriety of removal is not in dispute what is in dispute is whether plaintiffs after removal may then refile the very same claims in state court and whether if this trick court man dorce that by abstaining from trying to remove the action in june two thousand and eleven a maryland state court finding individual issues predominated over common issues be certified a class of current and former residents fallston maryland whose groundwater was allegedly contaminated by the defendants over several decades that former class action cook class they filed suit on november second two thousand and eleven the same day the seven remaining cook plaintiffs the former class representatives represented by the very same counsel representing down to the very punctuation marks the two cases had however different point of us all of whose claims in both cases require individualized proof not a single plaintiff claim under the cook second to bend a complaint if proven would establish any ackermann plaintiff's right to recovery under any theory asserted and vice versa defendants removed ackerman on november twenty ninth two thousand assuming two thousand and eleven and that same day filed with the state court a notice of the removal staying state court proceedings per twenty eight u s c section fourteen forty sixty as of that da two days later ignoring section fourteen forty sixty the ackermann plaintiffs refile their case in state court they did so by talking or inserting their entire case on behalf of all two hundred sixty seven plus plaintiffs inside cook under the guise of a cook third amended complaint the only difference being the caption was now many many many many pages long but the favor of cook as amended post removal it is this error that the defendants ask this court to vacate the first threshold question under colorado river is is there a parallel proceeding in state court the premise of a parallel proceeding is concurrent jurisdiction to underline this point throughout the colorado river opinion justice president brennan refers to concurrent jurisdiction ten times where removal has occurred there can be no concurrent state court jurisdiction over the removed claims because the federal court's jurisdiction is and has been for one hundred seventy years exclusive court proceeding we did not need to your honor the state court judge advised us before the matter came to her head that he was going to stay all proceedings pending the outcome of the federal proceedings and that may be found that will that get with regard to this issue what it it meant that it was unnecessary to ask the federal court to command the state court to do nothing because the state court already said i will do nothing i will abide by the result for we thought it it wiser appropriate to seek that extraordinary relief from the district court we evaluated whether it was necessary given that the state courts position and determined it was not action it seemed to feel that there was no exception to the hand i injunction here could you help me with that well that that was plainly erroneous it has long been understood and i know that since at least the the relief of a state court proceeding under the it injunction act we're only talking here to the extent that that we'd be talking about an injunction at all we'd only be talking about the the express authorization exception the first of the three exceptions right but if and if we were to agree with you we would still it seems to me since it is a discretionary determination on the part of the district co to the state court index not to compel the grating in which option but simply to explain that fourteen forty sixty is the express authorization that allows a federal court to enjoin a state section fourteen forty six d and he says if you look at that that the plain language of section fourteen forty six d the the statute compels the district court to grant injunctive relief when requested but then it's not a discretionary determination it is if within that context that's correct the congress has essentially denied the district court discretion button our position your honor and  case from state court to federal court provide that the removal acts as a stay of the state court proceedings section fourteen forty six d when one gives the notice to the plaintiff and gives the notice to the state court that states the state court proceedings there is no that that just judge quarrels was correct in denying the motion to remit the removal was appropriate this case falls within the exclusive jurisdiction of the federal court now as i said there's no authority for what judge what the district court did it is it is how and quite frankly there are no cases that appear to have ever dealt with this specific factual context but it but it's instructive that the capers case  a state court to subvert federal question terrific correct but the that's correct and it strikes me that the point is if you can't find essential of the same case you can't file exactly the same case and that's the the  proposition that capers lou frith other cases stand for but but what i want to point out is it's almost it's almost an afterthought but but in the in the capers case the plaintiffs sought younger and the court rejected that it said that abstention albeit albeit here under younger is inappropriate where a federal court has exclusive jurisdiction over a claim if abstention in the younger context is inappropriate principle has any meaning whatsoever if it necessarily means that a plaintiff may not in any form refile the same case that a defendant has removed unless and until the case is remanded and here of course we know there will be no remain  we know we're talking about we're talking about the case as of removal if you compare me to let's let's for one moment discuss what we're left with we've got exclusive jurisdiction of the federal court over the ackermann case that means that the cook second amended complaint for those seven point of still left in state court this is just another way to look at the the abstention analysis you have to under the great american trace braxton other other decisions of this court this court has to has strictly construed the parallel proceedings requirement under colorado river we have to the time of removal and the answer is plainly not because all of these claims involve individual claims for damages they all require individual as proof of causation they all require individual eyes proof of  gordon case from the supreme court the and pardon me the french case with these cases actually invalidated state proceedings that continued on after the removal of based on the very same principle that the removal had occurred and the notice had been given and at that point the state court was divest it of jurisdiction and there was no injunction granted neither of those cases no injunction requested  for two hundred twenty years congress has ensured state or defendants the right to remove certain cases to federal court one hundred seventy years ago in the gordon case the supreme court declared that removal jurisdiction is exclusive and thirty six years ago in the vendor case the supreme court observed that such exclusivity isn't forced by the automatic bar of state court proceedings under section fourteen forty six date plaintiff's refiling of their case albeit under the provide the basis for parallel proceedings under colorado river consequently the district court erred in deferring to cook under colorado river and the disc the decision of the district court should be remained should be vacated thank you thank you that the plaintiff didn't file the a minute to it to subvert federal jurisdiction i don't think so your honor and that the plaintiff's ignalina that they took the action to subvert the effects of i don't said that i don't exxon's argument today in fact in most of the briefing there was virtually no analysis of klein versus bird construction and very limited analysis of the actual text removal statute the removal statute itself vi certainly do have and you have two things first of all you have the same case the same allegations the same defendant the saying a subset of the same plaintiffs or as why i want to talk about found that that was not point of the plain right and that's what i'm saying and it that's what seems to me it has to be clear error because the plaintiffs said that that was its intent let me let me finish my discussion on your i think it will answer the injunction in the federal court proceeding of that's the court action the supreme court said it doesn't work that way in our federal system you're talking about  case can go in file exactly the same action against exactly this and if exactly the same action is filed it would be removable and that would be the defendant's remedy and once removed it would be susceptible of injunction because the removal statute says the removed case may be enjoined fourteen forty sixty has no meaning if if if if a subset of plaintiffs can bring an identical action against the think well it's only it's only it only ends when you run out a plaintiff i think as a practical matter plaintiff a got removed twice would stop why just a matter futility for frank playing well and possibly also sanctions from a federal court of some injunction that goes back to around the seventy nine days the supreme court was well aware vote removal statute and the anti injunction act when that decision was decided but it didn't invoke removal jurisdiction so there was no reason to refer to it but if the court watches or a whole what it would mean is that one statutory right it wouldn't mean anything of the kind it only did it only applies to the statute to which it is a part fourteen forty six is in only because that is congress's express wish if congress wanted to speak to the issue of original jurisdiction in the same regard it could do so it shows in the context of the remov statute to say shall proceed no further unless and until the case is remanded and i and again it's our positions that refers to the removed eight not to other concurrent proceedings there's nothing  supreme court's towards prudence that suggests that it ever intended to limit the possibility of concur in for certain national concurrent actions involving the same parties the same cause of action and in that regard well what would you say to the a circuits language that the party cannot file essentially the same case in a second state action to subvert a federal question just picturing here you have defendant who removes the federal court that may well be but that doesn't create congressional authorization that is absent from that does not apply with respect original touristic and does apply i say is because the court uses incline uses that magic lying when you see in these fraudulent filing cases relied on by exxon nor those cases talk about whether or not the removal or excuse me the file in the co a pair federal jurisdiction that has been awhile since the nine hundred twenty and united states and there's nothing in the removal statute changes now congress had a chance to change because it amended the an that raises two other questions the state court case and it is it least arguable that fourteen forty sixty specifically does what they might have as i said sometimes i have to find a judge and you know in this instance i think that exxon actually had to seek the injunction and if it was any possibility of removing the sacrament amended complaint removing them now free man on our part would have succeeded and maybe they be arguing about that but without at least attempting those two things is not preserve the record to present these issues on appeal i want to talk briefly players understand that you have an issue with that your owners but at least want to talk about those cases because what's significant now then is that with the exception of kansas public employees they all found that injunction was not appropriate they were all instances where the court found there was not fraud there were rational reasons for what had been done and one instance there been a misnomer i think that was the first case there's been a misnomer which inadvertently created federal jurisdiction credit aversives or section for the plaintiff out a new complaint properly name the defendant it was then non removable course of that a little bit was adamant things are done there's nothing to see feel about that and i think that's what's important to understand about these cases with  the state circuit courts and ministry of concerns coast decertification it was an effort to make it possible to get this all resolved in a single comprehensive action the african case before federal court would never be comprehensive it would never have those other class representatives planets so there would always be two actions going forward with the same complex scientific testimony hydrogen logical testimony testimony regarding medical monitoring s to actions in two courts involving all these plaintiffs and this very complicated scenario when we amended the cook action and then asked the federal courts abstain invite the way we told jurisdiction at all times the federal court could very easily have said to us mr ashley that's an interesting argument get ready for trial you better start your discovery this court has jurisdiction it's going to exercise it if we get to judgment first it'll be into federal court and it makes no sense to treat one statutory right as preferred over another those of the statutory rights are subject to the rule incline versus burke instruction that in persona actions by oldie it could only be an lp if it had been enjoined it was not enjoying and therefore the court properly entered into the colorado river analysis they concluded that not only were the actions parallel because they clearly were after the amendment but that the federal form was less convenient because of the vast stage of the proceedings and stickwork that the if tension in this instance would avoid piecemeal litigation which was a sure thing without it and that the progress in the state court action and the case under forty six d if it is anything is the plaintiff's the claims asserted the allegations made the relief sought all of those identity were re filed in state court and when you believe through davis to we did so as well and i mentioned davis too because in davis to the court said cantor tour the tribunal is an admirable and in fact the required thing but you don't essentially get any points for it when you findings he found that the third amended complaint in cook was not an attempt to fraudulently undermine the removal statutes and he says the plaintiffs told the state court they could be amended he cites there to a document that is joint appendix j one thirty four which is counsel's november second letter to the state court judge which said i wish to advise you that we are filing complaints today that is the second amended complaint in cook and ackerman in the wake of the decertification of the above captioned matter matter for your instructions we are amending what has been the act of complaint and we are also filing a new complaint on behalf of plaintiffs who were previously absent class members so he's talking about the second amended complaint there just quarrels apparently thought that was talking about the third amended complaint which was filed twenty nine days later twenty nine days later and plainly that's not what counsel was talking about it talked about complaints being filed november second the court then went on to say that quote the primary purpose of amending cook purposes of men to cook were not to project lead defeat this court's jurisdiction but to comply with the state courts instructions into easy administration of litigation here again he cites j one thirty four which we just went through j one forty one and a letter from judge plitt document one twelve now first of the document from judge put a letter one twelve says absolutely nothing about amendment one way or the other day one forty one said the judge put asked plaintiffs during the chambers meeting on october twenty sixth two thousand and eleven this is an affidavit from counsel to file new actions for the former class members again ackerman case for ease of administration that's the only instruction was to file ackerman and i have one more question about davis i'm sorry if it goes back to something i asked earlier about the release you told discount as they say it's a one off situation will never happen again just imagine if you will a large prominent plaintiff firm that files many many plaintiffs actions and this firm always wants to make sure that there is some  resident form defendant to destroy diversity so these cases can't be removed to federal court but just imagine it should happen that there's one such case where they can't find a resident defendant to sue and that case is removed to federal court by the plaintiff's analysis after removal they can simply take that case tuck it into one of the existing cases and ask the district court to abstain under colorado river and if it   i'm sorry i misunderstood i thought yes i mean the that's correct but but the for but that's essentially what happened in honolulu oil and the ninth circuit in lieu distance itself  all we're dealing with a trick question of law what is fourteen forty six d mean we're going to skip let's assume that you're right that means automatic that is the state court must cease and desist automatic addendum to ask the question whether or not the federal court has inherent of forty to run its own dock in terms of understand in terms of what's better to proceed this is not a case of the district court was an undermining of the federal court to sort of got things sort of messed up all due respect of the circuit first certified then to the certified and then everybody was trying to reassemble themselves in the process and i love that and that's why i think going to do that but it's the federal court saying i see unusual circumstances here i just think that it would be better to let the state court proceed and i'm just going to stain i'm like kicking out a federal court i'm just saying in  discretion well you are because essentially that means you've already gotten past the threshold question of parallel proceedings to to then weigh all the various factors that allow the district court to do what it did and we're not challenging the district court's weighing of those factors we're simply saying that the threshold question whether they're perla proceedings and that is in fact a question of longer because it's for the court to determine what's the comp aranda what's the state but i'm going to compare to the federal to the federal litigation well the only way i can determine that is by construing fourteen forty six d but the granting of any intentional usually has discretion here usually is your honor but as we said where congress has has clearly defined and the limited the scope of the district court's discretion you know we have different circumstances here than in the ordinary case