and for my tenth it's ms brown who represents mr ashford will address certain aspects of the summary judgment ruling we reserve five minutes for rebuttal because there is no settlement agreement between the plaintive ashford and the non diverse defendant airframe the motions to remain and should have been granted and the case should have been remanded to state court to explain i want to address two principle issues in consideration for the court to consider and it's to nova view about first the district court erred in using a theory of realignment of the parties after removal in order to create diversity jurisdiction where it did not exist doing so under the circumstances of this case in particular ignores the well established tests and safeguards that the court has developed for analyzing whether in nanda first party is present soley to to prevent federal jurisdiction second the district court's decision here to realign hinged upon legal error in concluding through assumptions that asked for the point and the nanda first defendant had settled ashford's client when under louisiana law and based on the record evidence there was no settlement if there were a settlement we wouldn't need to you would need realignment dr caterpillar would say that that any problem has been cured right well that correct john i've had there been a settlement and actual settlement a dismissal right which you would expect in a voluntary settlement that would fit cleanly within one of the two fundamental tests that we have for testing whether someone is present for the sole purpose of destroying federal jurisdiction in this case the voluntary involuntary rule clearly had there been a settlement and there's no case law that extends caterpillar to say the functional equivalent of so could you could could party settle but just not submit that to get that final dismissal so as to maintain jurisdiction well had that happened which there's no record record evidence here that it happened i guess that would  settlement and that the non diverse party was out in the court had jurisdiction he says in his opinion that he had lingering concerns as to whether the fact there was a settlement but the record evidence was that there was not a binding enforceable settlement on the easy end of law and if i have the right case in mind i believe it walked through so called arcos thirty seven wanted thirty seventy t to say you know into louisiana law you need a written binding enforceable agreement or stated in open court and said look i have a sense that this thing may have settled but i don't have it in front of me and i'm not going to what about this is somewhat convincing explanation that under the ultimate interest tests realignment we would be appropriate here well the reason why reference the intrusion on or of ignoring of our traditional rules would be if you had  realignment in the in the sense that this court has discussed it which typically is in a case filed in federal court where the court of course says it's the obligation in the authority to always question it suggested realign it would be appropriate on the move i've seen nine where the analysis deals with subsequent case developments in other words sure you you assess the field of play at the time the suit is filed you may not do that assessment until down the road when somebody files of motion but you look back and say ok when you filed suit you had a bona fide dispute with that first defendant now things have happened over the course of a case as happened here where roger porter my client was not a party at all he gives third party in there become cross climbs and counter claims and all of a sudden a says well wait a minute here we are seven months down the line we haven't depositions and that the louder the law allows it does allow within one year if there has been some act that from which you can ascertain that the matter has become remove that e mail is certainly is what they were a lot upon your honor but we don't think parties who now have been made targets of another party in this case a ts are somehow code looting because they're actively dealing with the h s claim but at the same time the pla the third appeal was the result of a summary judgment that my client order was not involved in but it was certified under fifty four b and the parties took the peel and it's consolidated now with this appeal which might point directly to so i would i would urge the court to consider that that's not it's for appeals in the in from the case but it's not a sanctionable or greed just appeals to courts to assess complete assessment was made as of the time of filing it involved a coalesce or it's a very short opinion as you know so it's hard to tell the facts but my gleaning from it is it's a mineral less or oil and also her coalesce or it's almost as if it's a nominal party situation that she needs to name that coalesce or because she's looking to cancel the lease in that sense on the day the filed one could say comfortably well the claim against mr lindsey i think is what name was in that case is really it's a nominal party situation that's a test that we are accustomed to it's a party as to whom we don't expect any recovery and we're not really pursuing a claim because we just had to name them pro forma and that's what peter's involved know what's interesting is three years before their nine hundred forty six the texas pacific case that we cited the court addresses in the context of a case filed in federal court and they are the court said facts forming the basis for realignment must exist at the time of filing the original suit your honour's we cannot have  complex ongoing multi party litigation a scenario where we're going to constantly reassess who's on who's siding with who on various issues and so they want to remove the that's ignoring the realities of multiparty litigation i see my time is up for the  is not the typical way that we get to you guys and they are not you guys i am willing to accept a lot of colloquialisms but for the court we are the court or your honor and i apologize yes  as far as the discretionary review issue we did attempt to get to this court on two separate occasions through that process and we're we're declined the opportunity to do that and so on once we had a judgment in or going in and although that judgment was a denial of summary judgment the district court certified that judgment is final and at that point we had no issue no opportunity other than to take it up or to lose the right to do so and so there was nothing in bad faith about the appeal in any way and we thought that that it was the only action that we could take seems to me that your briefing on appeal and the summary judgment issues for its very scanty with not able to rule on that motion because it was a klein between two louisiana parties and any ruling any substantive ruling would have been a nullity and it would have inherently recognize that  saying that there was a compromise unfortunately does not make it so and there has not been a compromise of any of these kinds and right now mr ashford and more than one hundred of his colleagues whose cases are stay pending the outcome of this appeal they hundred four people came to my office i do not believe they have a claim against mr porter i believe that they had claims for their two weeks of armed but unpaid wages under the louisiana last page of law against their employer and we follow those  started klein's against a t s but i had no way of knowing roger porter was ever going to be brought into this litigation even if even if for this law has been criticised isn't it the law in our circuit that the amount of controversy could be but if the law allows the counterclaim amounts to be included then it would be made that's right and so if you don't are you not pressing we didn't focus on that issue and it's also not the same as a hundred for her cons i think the real issue is with the diversity and so with respect to mr measure for summary judgment i think it is just subsumed by the jurisdictional question with respect to the a t s motion and i'll be quick but the record is replete with references to record evidence sworn testimony by corporate representatives of this company in fact and the district court said that we relied on nothing but conclusory allegations but yet it's a t s his own testimony that proves several things that at a minimum raise a fact question about the unfair trade practices and i just quickly run through a few of those but a t s knew through confidential dealings about airframes dire financial situation they knew about the ability to get to negotiate this large debt down they had two opportunities to do a deal themselves with their friend declined to do so to wait airframe out and then as soon as they knew her friend was doing a deal with someone else they came in behind here a frames back and bought that bit for clothes on and accelerated it by doing so that they decimated the deal between court sees this quite often and that is that cross claims always have a mechanism of aligning in not aligning parties in different phases we can agree on certain issues i don't agree with michael written reason i perceive the summary judgment is inappropriate because that there are equitable defenses the question is why was airframe unable to pay the debts was that were the actions of eighty as part and parcel of the reason that these employees were not paid i think that those are equitable defenses i think you can address the issue of penalties attorney's fees the second part of it is is there is no evidence in the record regarding the financial records of airframe in reference to the money that was actually of teach of these employees let me explain why kalash word filed to offer davidson to the record alleging that he was owed money but the records themselves are contained in computer systems that were seized by a ts so i could not come before your honor's and affirming attest to an amount that i could agree each employee is owed because we are not in possession of those records is it ascertainable with future discovery i believe it absolutely is but i don't have that the other the other part of it is going back into these cases is each one of these different matters i think their frame is in a different position than mr porter i think mr porter has a defensible position on whether or not he is liable for the attorney's fees airframe does not air frame o's whatever that what actually the wages are airframe those whatever wages or do so we need the opportunity to present that so i think in that respect the motion for summ judgment was improper because i think there's an article based there's a dispute of material fact the other issue is i think is brought up by miss browne and that was all of the remaining plaintiffs cases hang in limbo i don't my client does not have a final judgment it says the rulings are that the position relative to jurisdiction is moot and i submit to your honor's that jurisdiction is not moot at the time that the claim was filed michael ashford was a citizen of louisiana and so is airframe and that was at the inception of the lawsuit that's how all this started we got a federal court because a relative to civil court oracle thirty seventy one and thirty seventy two here in louisiana which requires that a settlement agreement relative to apply the theory of realignment has to be in writing and or recited in open court otherwise it's not a binding position and it is fully understandable that airframe wants to pay these employees money they were employees that work for free but they also don't have the money to do it and they're not going to bind themselves to do something until they airframe would like to pay its employees  executive officer yes how many exclusivities agreements and employment  you're out of i'm not familiar with that i don't know candidly i came into this on appeal i read the record i was not trial counsel i did not man i was asked by bray williams and to come in and stand in because they were stuck in a position i had not been paid your honor bray williams is a friend of mine and they filed a motion to withdraw both in a district court and the they were left in an untenable position of being granted an alp in the court of appeal but they're still counsel of record in the district court so it's a tough position i've had a lot of cases with mr williams and i was asked if i could step in significant facts number one they want you to ignore the email but i would not call the summer brown correspondence as though it is not evidence and it is evidence that there was a settlement with errol frank they also want you to ignore the bombshell admissions that mr porter made in that tennessee federal court case that we found that completely refute the primary allegations of the claims of all of the plaintiffs that a t s this purchase of the eads note cause the closure of error frame and the loss of mr porter's employment package and thirdly they want you to ignore the simple fact that mr porter is the sole owner and the sole spokesman paraphrasing which is a defunct corporation and once you use your common sense and you pierce through the pleadings and acknowledge as mr porter edited in the tennessee litigation that he voluntarily shut down arrow frying so that he could receive the one point two five million dollar employment package from a a r and the a frame that so called separate and distinct entity received absolutely nothing in return for that shutting down of errol frey and is now totally defunct you can draw on no conclusion other than that arrow frame is totally aligned with the plaintiffs because it's so voice is solely mr poet porter porter it made it in to have federal jurisdiction wouldn't you have to prove that that alignment existed at the time of filing i don't believe so your honor i think that the law in the fifth circuit is upon removal you real n and then you look at diversity to establish diversity jurisdiction last one nine hundred forty nine case that the other side wants to dismiss but it is good fifth circuit law image and it makes sense to you know in ok i mean i'll just quote the case that they cite curry versus prot quote in cases removed from state court diversity of citizenship must exist both at the time of filing and at the time of remov and i don't i don't remember the exact facts of that case your honor but i think realignment is generally an exception to the rule of when do you look at what is the diversity of the parties involved between the realigned parties one of the cases that we cited in our brief where the court realigned the parties there was a claim as between playing of over a million dollars and the court said you look at what is the substantial primary dispute that is that issue not the minor issues to determine whether or not you can realign and so the fact that error frame may have some mr porter admitted in the tennessee litigation the should have sued mr porter mr porter voluntarily shut down this business he closed the doors of merrill frying he was the sole owner he did it for his own personal benefit i think it's really a pretext to argue that these are separate companies you know that really should be treated separately for diversity purposes i think it's very clear you know if you look at the the summer brown correspondence what is represented in the waiver is that mr porter will it any money he receives from our air or frame receives from a t s as a result of this claim then he'll pay that first to the employees so he speaks for errol for a summer ground does say that but then when that was presented to the magistrate the magistrate said that shows there's been alignment as of now but rejected explicitly that the collusion argument back to the data filing so that would come back to my concern if the law is binding that it has to be shown complete diversity and both inception and removal the magistrate made a factual finding that it was hadn't been shown at the outset i think i think the magistrate quite frankly your honor through the plaintiff the the plaintiffs in the early lawyers seems removal chair is quote inception of the case means inception of that case what with the counter claims i think i think that right i mean because that's what triggered the time frame within which removal occurred was on it yes but you know in some instances in realignment the other paper exception you know allows removal based don't punch the fence that happened post or a point which is what was done yes if you're not relying on the caterpillar then exception this is a realignment case and you see a distinction between those restaurant as there is no reliance on capital or yes yes from you know when we remove the case there were us some one side quarter airframe and the employees on the other side in that that point i think the court can say based upon the settlement agreement that arrow frame was a nominal defended and really should be treated as a plaintiff based upon their counter playing against say ts which was you screwed the deal and i lost my you know i want to stand that point and i also see three of us were just discussing whether you would have to have shown that at the inception and the magistrate's bone finding that it didn't exist at that point could be consequential well i mean worst case your honor remained me back it up i'm not asking for that we many back and let me let me do discovery because i think that when you look at the complaint you know use your common sense that mr ashford is i believe an airplane mechanic he knew an awful lot about this case about the business issues that you would not expect an airplane mechanic to be able to tell his lawyer to put into a a petition you know mr porter his initial appearance was pro se the magistrate noted that this was an awfully sophisticated pleading that mr porter presented it it's as though he must have had a lawyer working with him i think if you us concentrate and it could be reopened at this point you are pelley here you are not appealing that mad i say it's both that's right that's right and i want to point out a couple of things that i heard in the arguments of the the three parties that got up here motion to dismiss that terrifying file that caused the third appeal well that that's not exactly accurate because mr porter filed an affidavit in support of the motion ashford who slaw firm represents mr porter as well as the employees they attacked this deporter affidavit i mean that's you know that's creating a split tease that i think really defines common sits that you should treat era frame in puerto as separate parties here i think that whole claim it gets airframe was put in the original petition to defeat diversity it was designed to defeat diversity and i think that if we had never come across this email you know we would we wouldn't be standing here i was kind of surprised by mr a kind of unclear from the complaint and that's why we said jurisdictional amount was met they asked for damages under louisiana civil code article you talk about all the employees i mean it must be a lot of money that they can get out of  i believe serve i mean it's at a bare minimum it's two weeks of salary and who knows how much in terms of future salary because some of the some of these employees did not get hired by the new owner and so they were out of work for a longer period of time and so they they also besides lose in civil code article twenty three fifteen they sought damages under intentional interference with contract and under the louisiana unfair trade practices act and under that statute they're entitled to legal fees and i just want to make make it clear the fact that their argument has been made well the plaintiff's lawyer had contingency fee contract in that in some way caps you know the amount that can be recovered under legal for legal fees that's just not correct i mean you could say you know they you know look we spent seven hundred thousand dollars to be standing here today i don't know what they've spent although one of these i may have misheard i thought they were virtually conceded the amount of controversy today saying that porter's counterclaim account where you're you're over seventy five hurt i heard that too but that's not what the  but i was going to say i was kind of surprised by errol frames council argument because they didn't appeal the summary judgment and leave and he stood up here in argued that you know the summary judgment was wrongly decided and that frame recovered they would have assets to in term pay the employees well they didn't peel it and the reason they didn't appeal it is that because they clearly waived it and mr porter was the person who signed the strict foreclosure agreement that waived anything with respect to the purchase of the note the foreclosure on the property the deal the hoa deal and you know quite frankly if you use you come since you would say porter has also waived any kind of claim against a ts but you know if you look ahead counsel's one thousand page brief you know of seventeen pages or are taking the side been the source of this jersey dictionary question and this was drafted really after we consulted with ethics council and you know i say in artful it was written to as mr vance pointed out a bunch of airplane mechanics it wasn't intended to be and they scrutinize from a legal standpoint but nowhere does it say anything about a settlement what it does say and what the waivers and what mr porter's agreement with my office say is that roger has agreed to stipulate in writing that a frame will pay as they stated here is the legal question just that does realignment allow for an assessment in federal jurisdiction at time of removal or does it also have to bring turn back and i believe that it's because when you can have the defendant years into the case and if there is diversity the defendant can remove right yes the problem is when a defendant is allowed to assert klein's to manipulate diversity which has been done here incidental demands and things of that nature us claims which it seems to me under the circumstances were not surprising and they should not have been and  wasn't dissipated quite frankly that roger porter would be brought in and he we had no way to know that they were going to individually third party and what happened in tennessee and perhaps that is the case but but we have never hidden the fact that we talked to roger obviously an airplane mechanic didn't know all the facts that are in the petition we live in a small town we picked up the phone and said you know we're going to be suing you that's your time the notion that the summer brown e mail reflects a voluntary act that would make a case removable i believe is incorrect as a matter of law in the end that it is not a settlement agreement under louisiana law it's not even a communication between the plaintiffs or the plaintiff's counsel and opposing counsel this is an e mail as she indicated to her clients for the purpose of obtaining a conflict waiver that would facilitate not not in execution of a settlement and a dismissal of claims of error but would facilitate the firm's representation of mr porter adverse to a t s and subordinate one of the condition that the firm it's been said that arrow frame and border are one in the same measure a judge specifically rejected that in her opinion i think that was correct but she did say that the e mail suggests that there's an agreement sufficient to align parties we suggest you honors that that is too loose of a connection that what we have developed a case law in the fifth circuit throughout the country your client admitted it and that it was his to say well i believe that that the what was said in tennessee is not inconsistent with the position in the louisiana litigation in that this is a problem underlying the summary judgment decision by the court to love its ignoring the time the time sequence at the time that mr porter entered into his agreement with a or the other company which in the tennessee litigation is his suit against that company for breach of employment he signed the agreement in louisiana with a r after don't want to be is the privilege to speak for herself but if it there was a different deal a less lucrative deal that yes he did end up signing on with a your own but it's not inconsistent the position he's taken in tennessee