on the other side of the aisle here so to speak is a pollie who was not a party who was not a nonparty but was as they described themselves as an interested person in the non party of the discovery needs to be determined by this are all bookwork because the basically issue is so simple and clear in our view just back up procedure i'm trying to understand a little bit about the parties relationship here so you the ground that fortress had an interest in it and that was when they alerted portress to this discovery issue we made a motion to compel the production of that document before the raid and and then  all stages leading to where we are today so that is one of the questions one of the aspects of the issue that the court raised about collateral attack is that they are in fact derivative of the solenoid but all those things may get to a subsequent question but just as an as an antecedent matter if the judgment that sought to be enforced is just no longer in a fact then there's circular logic when you're never getting an opportunity to have an appellate right with respect to the underlying decision if that would be the case and that would be an absurdity you always have and i don't understand what you're saying because if it if the other course vacates the judgment then there's nothing to enforce there may be some problem with the vacate or but it doesn't it and then you might be able to say that it because it's on appeal this proceeding hasn't become live i'm just trying to establish the predicate point that if there's no judgment left to be enforced to then there's nothing to be done here again i think that you can't have a subsequent act undoing your right to appeal because that would mean that you were never having a right to appeal in that scenario which would be contrary the way things are done so i don't understand the predicate of it  the concern from this is that third party not our district court and not us but a third party a third entity has taken a staff to get rid of the judgment imagine imagine but the point would be that the subsequent action cannot interfere with that in particular because it's not an independent action is soley derivative it was not a notice it doesn't purport to be a judgment of anything other than based it in this case and if we reversed what judge based did he say yeah it's possible that this record in california would do something different but it is likely that because it did it in the first place on account of what our district  effectively it would mean that a court here by purporting to act in connection with a colleague court in another district just which does not have thirty years on the supervisory court could prevent you from a building  merits if you will be the point here is that the judge bates did the opposite of what he indicated that he should do under the law and that's again part of the oddity of what here if you are understood look at pages ninety three of the record of the court said quote that is not futile from my perspective that lao's me to have factual support for the decision that i'm going to render and quote and that is the point here is that despite having clearly laid out at ninety two or ninety three during the hearing the parameters of his decision he then went  violated the law and did exactly the opposite of what he'd said as his roadmap and it should be just sitting without any factual support to for a finding iraq a question about whether it's arguabl eighty's and particularly collateral attack is allowed in circumstances this is being so far removed from the from the underlines but putting that issue aside the point is that  you need to have an actual you void judgment that is you need to have a fact or a legal posture in which the underlying court had no jurisdiction and there is zero point zero court this case should never been brought in the federal system and at this point it's clear to everybody that there is no diversity between these hard hearted your honor we're not and you asked the question earlier what are we doing  here trust me i will cut this morning and asked myself the same question you know it's a it's a hard posture to be in because my client was someone that's affected by this judgment that has been registered in the district of d c and then they went to enforce it it wasn't until arguing it reached the documents yes it was a subpoena that was issued to the individual the individual had possession of that as a result of his work that he had done out and as you should and as the individual resisting the subpoena  beginning it is very hot right now so how did sixty become into this because sixty b is a motion that's brought by a party to a judgment and the only person here that's a party to the judgment is the one who doesn't want sixty  i don't know what we had how ended up in sixty land to begin with yeah in your honor it's a great question in the i think that we're in that we have a little bit around peg in a square hole of sixty it doesn't fit entirely but that's what judge bates interpreted it  his possession well that's a fight between you guys sorry that's a fight between you guys but he's had nothing to do with this league is so i'm here  regional judgment becomes an enforceable the cloner judgment the register judgment still has a life of its own so usually that comes up in circumstances where you're dealing with things like limitations that prevents you from being able to enforce the original judgment but you might be able to enforce that register judgment it when i started reading those cases judge i came across the in repack ok's which was a decision from this court judge  dependent judgment and the original judgment is vacated or notify for some reason and what that section says is that it's not automatically the dependent judge isn't automatically notified as well but it probably should be  also deal with these issues and essentially the it's the butler versus eaton case at one forty one us two forty two forty four eighteen ninety one that essence says that if you end up in a situation like this where you have the parties in front of you you can do what's right to take care of the case so that the clone case is not dead it's on life support it's not moot you can address the issues to address the court's other issue about the des moines navigation case the door in the des moines navigation case is a classic collateral attack case where you have judgment in case a case b they're trying to use that was everything we just sat in the context of a foreign sovereign immunity case or subject matter jurisdiction it's a different game altogether when diversity jurisdiction is at stake  as for that there's ancient and revered precedent that says as to that the judgment isn't null and old fashioned from a void for purposes of sixty v itself so i see even more old supreme court cases they say since its earliest days of the supreme court they said it has a diversity jurisdiction because diversity doesn't you don't have a right diversity jurisdiction is not a from section twelve that's not what the section different from section twelve of the restated section restated second judgments that deals with contested matters and you know actually if you if you if you look at the way that judge ginsburg has dealt with this issue since she's been on the supreme court she's actually equated the morning and section twelve sided the about somebody making an appearance here a statement and quite a number of cases that a person can decide not to take his chances to lead if he thinks there's no jurisdiction and that he takes the risk that he'll be struck later if he doesn't challenge in another location that's what it says sixty five of the restated when the person knew about the action thank you thank you answer is after that notice we expected a motion for intervention which in my experience is what it does and nonparty does if they're interested as you said in being heard in a court much to our surprise we got back  some document and i do not remember it exactly now from the court indicating that this was all going to be heard we thought that was some kind of either of us so forth right of expense for no purpose that we can invent a fire no constructive purpose because as the court said on page ninety two of the transcript it is mr hines recognized the it is a pregnancy issue either it is diversity or there is not the only party in this court room or elsewhere that has an answer to the question or you should have an answer is sitting right here the nonparty and the fact of the matter is we thought that they would come in one way or the other and either say we didn't have a basis as i've asked you a number of times to say one way or another to show that there is diversity or that there is not and instead we got this sequ respectfully submit in quotes it was from somebody without any knowledge not speaking to the time that's relevant question not giving any indication of anything that would be of evidentiary significance there's not a name given there's not a lot of history or exactly the opposite of what judge the judge who sought their of eight tell us your knowledge and that instead we got a non declaration rather than a declaration and is the judge pointed out in his opinion saying that he didn't no idea about whether there was diversity jurisdiction that the result of that was that the judge was left in exactly the pastor had been it before the declaration that he had no new factual information they bore on the issue of j correct and in getting there would be absolutely no basis for it because there's nobody who with it that i'm aware of within will live in strictures who could say that the judgment was void which is what you need to say under sixty four to have a declaration indicating that and that's never happened here