mr spragg for the would have mentioned your honor that was certainly a reasonable point of view and i think that in not mentioning it we're going good company because the defense didn't mention it neither did the district court in this case or in another case involving foreign plaintiffs the block case all of those went through the form not convenience analysis on a motion to dismiss  was dismissed on that grounds without subject matter jurisdiction ever rising and in this respect this case is not unique this happens not infrequently that cases will come to the public level without subject matter jurisdiction ever the case law on this circuit is clear that that is completely appropriate and have conceded as i read your filings of yesterday the day before time flies when you're having fun  it looks to me like you've conceded that there isn't jurisdiction your honor there is not diversity jurisdiction under one thousand three hundred and thirty one dollars that is clear under this court if there isn't then why wouldn't we just dismiss this appeal and let you then go back to the district court and do whatever it is you think you need to do in order to plead something that would provide a jurisdictional base your honor because i think that the more efficient way to handle done here would you have a case that suggests that you can't use that statute in order to add a federal claim that wasn't present previously i've never i've seen that statute generally speaking and for instance diversity of cases where  fell to allege that members of all of these or something to that effect but every but it's clear diversity exists because these are different different states i've never seen the statute used to add a these that arose in that same type of factual context you aren't let me st directly address your question and then provide some additional explanation the direct answer your question is you're correct and i think i need to preclude knowledge that and fifty three i think is broad enough to allow this and this court's precedent especially in the miller case in which the court held that amendments to establish jurisdiction should be broadly allowed in order to effectuate congress's intent th cases not be we dismissed on technicalities allows this type of thing to happen but it's not a technicality that you didn't raise a claim this is a new claim you're bringing this is not a we forgot to tell you where she lives your honor and i wouldn't suggest that it is at the same nature as incorrectly alleging domicile however i would with respect answer that we  are not alleging entirely new claim that in the short form complaint we alleged breach of implied warranty breach of express warranty breach of warranty of merchantability and violation of consumer fraud statutes which was according to the template established by the multi district litigation the only thing that wasn't alleged was specifying that that is a max and mosque claim and when you look at maybe it's a stretch i haven't looked at the case or the cause of action all that much but you are the only reason you're raising it now is that just provided for a basis for jurisdiction rather think if you actually want to get an area you are i don't know whether to however i think it is appropriate considering the identity of the with the factual and legal issues to put a name on these warranty claims which is madison moss and allow the cases to go forward under federal question jurisdiction and i think that the broad nature honor i think that the remedy under six hundred and fifty three necessarily needs to be on a case by case basis and i think that this court has the ability in any opinion that you would issue  granting this relief to say that it is limited to the facts of the case i think that this court cannot establish a or make a holding limited to the facts of this difficult here you know we don't have it unless we permit an amendment of the complaint so if we don't have it and you've acknowledged that we don't have it how do we then say but hey we can just get rid of this unformed on convenience grounds or keep  it because that's not a correct way to i mean it's one thing to say we can address formed on convenience without establishing for certain that there is jurisdiction inside of him doesn't it even under the circumstances here doesn't prevent that it's quite another to say we know we don't have jurisdiction but they that's ok we'll just deal with this on form nine convenience grounds i mean i'm struggling to see how we can do that you are and if it weren't for the request to amend under  fifty three i think it would probably agree with you i think that the jurisdictional question needs to be viewed in the light of the six hundred and fifty three requests to a man because i think that that does give a ground for subject matter jurisdiction and i don't think that that can be ignored in the santa cam analysis so you're saying we should establish should rule on this in this case on the basis of if we had some him we could have a ham sandwich if we had some bread right i'm not exactly going to what i'm suggesting is that to to  and us motor's issue because if this court allows the amendment then the outcome of the jurisdictional question is affected so i'm suggesting that these questions be handled in a specific order that i think makes legal and logical sense and if to return to your question judge murphy the court were to allow the amendment  then one of two things could happen either the jurisdictional question is difficult in which case the court i think would be within its rights to dismiss one form not convenience or the form not inconvenience analysis is affected because it affects the balance of public and private interests and it may be appropriate to remand to the district court to consider for not communions in that light so again then to specifically address your santa can question may please the court ben so i say on behalf of the at belize i do want to get to the subject matter jurisdiction question before i do that i just want to briefly say that i do judge murphy a believe that we can reach and  rm the forum conventions dismissals without having to reach the subject matter jurisdiction question and i'd be happy to submit papers on the motion for leave to amend that was filed two days ago but i'm also happy just to address any questions the panel may have now i think the motion for leave to amend is not well taken both because of the point charge murphy made which is that that statute exists to allow correction of defective allegations of jurisdiction it does not allow correction of defective jurisdiction and so if this court were to but if we know that jurisdiction without the amendment right if we know that jurisdiction is defective that we don't have it then how does that fit into the framework of deciding formed on convenience without having to decide jurisdiction st i mean it's one thing to say that when you don't know whether you have jurisdiction but if you know you don't then how can we put on an order and all i think what's outcome says your honor is that it is that courts have discretion to choose among not merits grounds for resolving the case that's when that's when there's an open question on both like i can quote the court of saying it is of course true that once a court determines the jurisdiction is lacking it can proceed no further and must dismiss the case on that account and that in that scenario or and convenience can never apply i mean that seems to be what we have here now that we have  concession that diversity jurisdiction does not exist which i seem you can see to that it doesn't exist that's correct your honor it doesn't exist and i guess if i think i was making this point and in the context of distinguishing and the earlier case and it seemed to suggest have a conclusion that jurisdiction doesn't exist that that's so i would suggest to me that we have no authority to go further and engage in the for not convenience and so i i think that that's a reasonable reading of but let's be clear on the assumptions that i believe are underlying that one is that the motion for leave tremendous denied and i believe that's correct both under the statutory ground and i would submit that the amendment is substantively futile but i think you have to play out that string if you know if we're going to allow or consider a motion for leave to amend to add jurisdiction and if we think that there's complexity involved in that equation then i do think you're in the same quandary in terms of complexity that you are in and sign ok and i do think you can and should reach before and not inconvenience grounds and affirm what what's your response to the nd question which was the question from judge larson that it seems strange to me to say that a court that does not assure itself of jurisdiction has the ability to play out right if if if the court issued a form one convenience decision telling a party you can't raise a statue of limitations defense if the party goes in raises the statute of limitations defense i've seen the other party would come back and try to hold the st party in contempt or something but the court would have no jurisdiction to do anything short itself of jurisdiction so i don't think it would really have any authority to kind of dabble in the merits just a little bit and it kind of what the statue of  extent that you can reopen the case and that's the way to get that the practical response around as that's the way these cases work so what's what this court said in dowling there are a lot of other cases that make exactly the same point i guess also you know beyond this broader point  let's identify what the real concern is and i think the real concern is what you expressed with it something forcible by the contemporary when you look at sign ok and what it was doing was it was expressing his concern that the rd circuit had and when you drill down to the rd circuit opinion that concern was based on a district co perceived inability to exact it was the word it used a condition right to the extent that's a problem in another case if this court were to reach this issue here could right merrily because in this case as in many cases what happened was we agreed before the district court ruled matter raise these issues and so the district court was not exacting a promise right it wasn't forcing us to do something we said we will not do this in the context of seeking a full on non convenience  missal so this is not a situation where the district court has to exercise power over a defendant to get them to do something that they're not already you would have conceded those you would have conceded those you're a subject or your service of process your statute of limitations even if there was no prospect you are going to get a form one convenience ruling out of the court now what we said in the form one convenience motion your honor was that we would agree to do these things to get isn't the court by granting that conditional ruling on form one convenience isn't the court essentially contingently asserting jurisdiction in other words if you don't do these things then we will if we won't do these things we will reopen the case and i think in the gas context it says you can do it in any order right so you can reopen the case and then take up subject matter jurisdiction if subject managers diction is going to be a dicey issue and i think that's that's the summation there and i do want to get back i made to the subject matter stiction question here and make a few additional points one is i don't think it's an answer judge batchelder to simply said send it back for the district court to evaluate the request for leave to him and we have a final judgment here there were filings in the district court those filings do not raise rule sixty b i do not believe you can file a rule fifteen motion for leave to amend a case that has a final judgment in it so i don't think that's the proper course if you are going to proceed under rule sixty b i assume you'd have to show excusable neglect i don't think you can show excusable neglect based on an ignorance of the law which i think is what happened here they want to wear of the basis for to by the united states or britain how deluded to establish by the united states supreme court in following cases like morrison versus national australia bank and what that case says is you can't allow you can't allow a statute extra application unless it expressly says it will so apply there is absolutely nothing in the magnusson mohs act your honor that would allow it to reach a product sold and distributed in spain you have to have an answer to the question counsel on the other side about whether anybody else has raised this type of i'm not i'm not aware of it judgement and i don't believe it's been raised in any other case these cases are resolved on strict product liability and negligence theories below result revolves around what doctors knew and so you know one of the grounds and i understand i'm slipping into the form not conventions argument but you know one of the reasons why these cases belong in spain is the inquiry of what spanish doctors knew what they received in terms of and so it sets up a certain set of procedures and priorities to try to deal with and manage a very complex docket and what the court will do as it did here case management order for is say will allow short form compliance and we'll stay in practice on those complaints now it will allow occasional filings right but what the district court is doing something similar to what this court does when it decides when it's going to publish an opinion it's looking for a case where it can issue a ruling that could potentially have bro applicability so that parties plaintiff's counsel leadership and defense counsel leadership will understand the court's position on a particular issue here that particular issue happened to be formed on convenience and if you look at the docket this moat we asked for leave to amend to file that motion in two thousand and eleven when there is about two thousand eight hundred cases pending well fast forward to you know when these cases were filed in two thousand and twelve that was in the middle of a huge ramp up in the end of the two thousand and eleven presque status conference alluded two  twenty cases being filed today as we know from the district courts by november two thousand and thirteen there were over eight thousand five hundred cases involving over twelve thousand plaintiffs during that time if you look at the january two thousand and twelve status conference there was about eleven i think eighteen million documents produced we know from the district court's order seventy seven million documents were ultimately produce so there are sixty million documents being produced over that period of time also there are cases being identified by plaintiffs leadership and defense counsel to be worked up for trials and we know there were two trials held and remember this is a coordinated proceeding not just with the m d o but with four separate states there was a trial held in california and there was a trial held in illinois and so all that work was going on at the same time and the district court we do not believe would have even allowed us to entertain starting to file serry out of motions on some of these procedural issues while we were dealing with all this stuff you know recall the settlement occurred and the district work amended the parties for the year efficiency and bringing the litigation to do as much of a resolution as it could reach right with the ability of a big and individual players to opt in opt out for those plaintiffs whose hips were revised within the united states and so that's the reason why it wasn't filed sooner it was filed frankly when things had proceeded to a point in the m d o and with the opt in the opt outs where the parties could reach back and start dealing with some of these dokken packet cleanup issues that have been standing out there and in fairness we did send a letter advising them that we believe their claim should proceed in spain there just wasn't an opportunity at that time with everything that was going on in the m d o to take up these issues because if you take up these issues you've got to deal with other procedural issues and so on and so forth and eventually the m t l bogs down and we don't get the efficiency and the resolution that we were able to achieve in this case the other side mentions some of the discovery of your position that that discovery was just the standard for complaint submission is that what happened in every case about the background of the particular point that's right your honor its self executing there is a case management order that established that once you file the short form complaint if you were a patient who had experienced a revision that is a nd surgery to remove it you had to you had to complete a person to person often a point of fact sheet and submit other information and that's all that happened here and in fact some of the plaintiffs who submitted a play to fact sheets didn't actually have a revision and so that was a voluntary submission on their part and that's fine under the case management order but it wasn't even compelled in any event it was nothing we did to try to go out and seek that information before we file the form no inconvenience motion it was simply  done by virtue of the fact that they filed in the m d o and triggered those on themselves and so on the merits i do think the court should affirm i think the court can reach it without reaching subject matter jurisdiction and i would urge the court to uphold the four dollars and one dollar convenience dismissals these cases have been pending a while i think if we go back and we have to do form one convenience all over again it's going to be a waste of judicial resources will end up in the same place these cases belong in spain under dallying they belong in spain under half or in both of those cases a stablish that when an injury occurs in a foreign country based on a product sold used and regulated in a foreign country it is that country that has a strong and her friends were probably insurmountable interest in the claim that's certainly the case here the we have agreed to submit to the jurisdiction of spanish courts spanish there are known issues with spanish courts this court has a multiple occasions approved sending cases to spain there are other courts i mean it's even clear that your waiver of the statute of limitations defense would be acceptable in spain i mean i have a very smart law clerk who tells me that perhaps in spain your waiver would be ineffective because it would just be a blanket dismissal i there's no affidavit on that point your honor so what we have is we have our waiver and we have a history of cases from this court and other courts that condition dismissal based on a waiver of the statute of limitations i don't read their affidavit from the other side is saying a waiver is ineffective  u know that's and so and so that's i think that's where we are and i would well if i may briefly say you know i would urge not to impose too many more additional hurdles when it comes to issues like these i think you know we we submitted an affidavit showing subject matter restriction in spanish courts and showing that we were i mean about the service a process that's really what piper aircraft requires and i think the more additional hurdles hume pose the more difficult it becomes to try to track down all these issues in a foreign forum which really was what piper aircraft was getting at when i was trying to say every state case needs to be decided on its facts without a series of rigid rules thank you may i want to begin essentially where counsel left off and use as my jumping off point the statute of limitations question which is really what is driving almost the entire of the in the fact the matter is that the stachel mutations is run in spain and so where does that leave us that leaves us with the dismissal on for not convenience grounds which is conditional upon the waiver of the statute of limitations and so we reach that and  specifically the waiver and whether it be effective in spain and also the delay the delay in bringing the offense emotion is significantly prejudicial to opponents for the reasons that the court's already aware and what we just heard from a council is what they essentially put in their papers which is we got to it when we got to it and that can't be the legal standard for bringing  in blocking with the point from israel they can bring it in two thousand and twelve when they're open session of all the facts for the spanish point us and there was nothing that prevented them from doing that the next thing is ineffective the effect that has to be legally meaningful and when you put that in context of the chuang case i believe from the th circuit which holds that not only do you have to have a waiver of the statute of limitations has to be acceptable to the foreign court and if the waiver of statute of limitations in this case is not acceptable to the foreign court then them saying that there are meaningful to service in spain is not legally meaningful under the associate case and that's the that is the hurdle that they cannot get over because in their burden to establish that they didn't establish it in their affidavit and i think we just heard a concession to that effect  so the proper way to go through this and that's where i kind of want to spend the remainder of my time counsel mentioned that as to the jurisdictional issue you kind of have to play that string out and i couldn't agree with him more i think that the jurisdictional issue has to be decided st either by this court through the six hundred and fifty three motion or what we have done in the district court which is follow a motion under say sixty one dollars for an indicative statement and what the court can do and sixty one dollars motion even though it lacks jurisdiction because this court has it it can indicate how it would rule on a essential hypothetical rule fifteen motion and that can be litigated the court below and we can play this jurisdictional question out so this court can be satisfied as to subject matter jurisdiction before we go into the f and c motion i would acknowledge that another avenue that this court y subject matter jurisdiction issue  in the minute that i have left i want to address the question that you raised judge murphy about the discovery that was done one thing that was done in addition to just the pro forma statements of the plaintiffs below was the request for and the production of the plaintiff's medical records the opponent's medical records and that's important because that's one of the things that they raise in their private interest argument as to balance is that well wait we'd have to go to spain and get all these medical records those have been produced so it's not like there's been no case specific discovery done in this case and i see that my time is within ten seconds of being up so i