thank you may please the court my name's thomas michelle and i'm here this morning on behalf of diane weaver the two issues presented to the court are whether the trial court improperly failed to remind remand this matter back to the state court about as much for the for the people behind as i apologize or there's the st issue is whether the district court failed to properly improperly failed to remand this matter back to state court and the nd issue is whether the district court properly granted summary judgment on behalf of the met life defendants and perry i know this court is very familiar with the facts and so i will jump in quite quickly i believe  had faced almost and then the situation what to do with in this case where in the state court action the plaintiff head alleged a claim against the met life parties but did not know the they were faced very much with the similar situation in our case your honor under looking at one thousand four hundred and forty one a to see that you whether you can consider a fictitious defendant or not this court in its prior opinion given facts very similar to this case held that you do look at those that unnamed defendant and i will say our case is even more striking because this was not some no allegations of fraudulent joinder no allegations of at any rate of various in the sundry different type of defendants it was a particular individual who we were trying to identify and would have sued had we known the name had already brought him into the food metlife brought perry by name into the suit the day after perry i'm sorry metlife the move the case you know the citizen of dr no i don't think anybody disputes he's a citizen of texas we were we're trying to find out who he was we alleged that he had but that we think somebody has been receiving it because what all we knew at that time was that mr hickey had passed away matter if you don't look you don't don't know where you can exercise supplemental jurisdiction that has significant problems and where you can get the supplemental jurisdiction if for some reason you're going to disregard you've got to make the the initial determination whether you are going to disregard the unknown payee and this court says no you don't you consider him in our case and as i said is extremely strong because it is a specific individual we're not making we're not doing a kind of shotgun pleadings we're just trying to find out who that person was that's why we didn't name the we didn't know who it was obviously met knife had known who he was for years they were distributing the money out to him and so they won't tell us we file suit unknown payee and then we get removed in the day after they add him in their answer allege he's a citizen of the state of texas undisputed my consciousness in the state of texas we've got we do not have complete diversity it seems like a harsh rule but it is a bright line rule so so what aspect of you they didn't you want contending they had no obligation to tell you what in the text itself seems straight so is the argument did that in fact he was pacifically identified he was the only one is that it helps i think it makes our stronger even stronger than the dollar that case because here this court was faced with that following the st circuits opinion could include an under it's under one thousand four hundred and forty seven dollars he concluding that applies also to the identification  fictitious defendants after removal and that's what this court held specifically saying we hold that one thousand four hundred and forty one dollars applies only to john doe defendants asked such not to subsequently named pardons identifying fictitious defendants and therefore the court very almost exactly on point as our case that the only nuance and i'll get to it a nd your honor is i think the only slight twist is the inner pleader action which i think is also misleading but lack based on costs and the cases cited in this case is on all fours now they're going to lead we in our original petition we didn't allege pacifically enough a cause of action against the fictitious defendant but we in our original petition we clearly believed to be a resident of the state of texas but the met defendants won't disclose the name of the person so we wouldn't be here if i had known the person was we would have had that person named soup now to answer your question judge davis about the interplay does not create jurisdiction and it's not appeared all the parties are in the case so in a plea was improper weaver perry and the met live defendants so in or pleaders not proper and further they're not an innocent stakeholder because we have a claim against them for further breach of the agreements for the one hundred and twelve thousand dollars they had already distributed so that's not an innocent stakeholder if we still have our breach of contract and we cited the case to the to the lemon versus scott stringfellow case in our deal that you can't do and in a plea to try to create jurisdiction and get supplemental jurisdiction that way so we believe in this case the da way is extra is exactly on point it's one thousand four hundred and forty seven he that allows you to in our case we're not even they discuss the nuances between adding parties are they an added party or they have substituted party and this case that this court held it doesn't really matter they were a fictitious defendant specifically identified with the conduct that was happening which they received benefits the day after we found out it we fought without him motion to amend our pleading it was granted by the district court so perry was our amended pleading against them destroys diversity jurisdiction where the district court made a mistake was looking at the supplemental jurisdiction  forty one b one s has any court that is improper that it would have been improper for metlife to remove the federal court despite knowing perry's identity would be if you rely on the party of rope and metlife versus your client and pair yet if we if you want to i don't think we need to rely on parties i think were the plaintiff against the metlife defendants and perr valid claim even if you accept the truth and you even accept that they could do this in or pleader action the district court is absolutely silent about our claim for the one hundred and twelve thousand dollars for breach of the agreements that were already distributed that's not an pleader that's a direct claim against met life and a direct claim against perry those are classic state law claims you know we wouldn't be here today at all if we had just been given the cases that have followed the dollar case of this court's opinion about fictitious defend its fourteen oil yes being joined absolutely it destroys diversity and what about their argument that the claim against him wasn't one until the state will claim wasn't one that involved jointer correct it's that subtlety they're trying to discuss is the difference between substitution parties because ours is a very isolated where you have other parties like maybe there's other unknow allows us that's it's not it's not a tough question this is a state court jurisdiction case through and through except for these procedural perhaps creativity on the defendant's part to the problem in case we do decide that the church is properly probably want to get to your nd issue i do and i am running out of time on that i think the documentation the breach of contract is i want to point out to the request for change of beneficiary now the biggest thing is that a settlement agreement it's undisputed marquardt her husband was my client was the wife he was injured they had claims they sued she had claims he had claims they they settled they ed is the context is very important it says quote if where hickey dies before receiving all payments set forth in this paragraph such payments shall be made as due to diane hickey waiver today and it says such payments sh  she shall if living get those then after that if not her to the estate of him i think that's the end of the day i think that's then there is a paragraph at the end claimant says the word claim it reserves the right to request to change the beneficiary a future period of payments the problem is i don't think that that was clearly meant and my brain is not a it is not a picture of great rassmann ship and i think both sides will agree to  that but clearly if you read in the context that should be after miss hickey if if di and miss weaver were to pass away they could change the beneficiary that makes sense that is a holistic comprehensive of the it is it is singular and it could it would make sense that she negotiate for the lump sum and then he's going to get the stream and if exactly like what happened there's a divorce and someone else has begun to take care for them it would mean that hers was contingent in not respect none of it none of that same in the document i will but the singularity of the word claimant isn't the dr but it's a capital c and it's not a defined term and if you look at the document signed by mr hickey on the change of beneficiary he signs as a pay and it also says that the change of beneficial use effective if it's signed by the sign or and is not signed by the sign or and if you read it or record for fifty six this change will not be effective until the assign r has agreed before your time runs out you have a good any texas law case that suggests the nischelle beneficiary has standing to challenge or or after the sort of the right of vested for the claimant yeah i think this is a this is pure texas contract law which we cited in our briefs she she is it a bargain for exchange she gave up her claims in exchange for the settlement agreement which provides that i think this there's three sentences in a row right there on the end of the statute i mean of the agreement however it's as if if if if larry hickey dies before receiving all payments set forth in such payments shall be made as due to diane weaver his wife is living at that they want to take it away with this vague sense of the end this dangling clause that says to read that context in the whole when you look at the settlement agreements the release the lawsuit the release the settlement document that she agreed he could have them while he lived which makes sense but after he dies it's mine and it makes sense to m you thank you thank you thank you very much on the substantive issues of i'm prepared to address and substantive issue the court would like to raise that said we believe the judge means got both the procedural ruling and all of the merits rulings correct in his decision should be affirmed in their entirety we think it's appropriate here to look at the events that occurred on a step by step basis st step was the notice of removal when met life that moves this case that removal was indisputable proper because there were only two parties at that time we had a texas resident on one hand a new york resident on the one hand the requisite amount of controversy all of those facts are in dispute now there was a reference in the complaint to an unknown page he's in the style and entirely disregarded that is a fictitious defend that who shall be disregarded for removal purposes i got they didn't press the one thousand four hundred and forty one question today in argument but but it is your position that the language in their brief you would accept that it does allow someone like your client to live by the log their ups well i guess i not fond of the lie behind the log characterization but yes and that's what supreme court held in the roast case  thousand and five where the other day where the the name defendant was a parent company and it and it was a real estate related dispute like a property out of dallas and there was a it had an affiliate in virginia that actually controlled the property the the supreme court is actually the th circuit held that remained was required because the removing defendant the parent company knew about the local affiliate who was the diversity and i didn't hear them press that there's the with this case but that goes along with the step by step ok so we remove the case that's proper up the fictitious pay using the word that's what one thousand four hundred and forty one dollars b one says then we assert a claim against mr perry we bring him in under rule twenty two dollars which allows the assertion of a claim like that and the rules in the statutes are incredibly deferential to the assertion of inner pleader type claims i want to know who to pay absolutely and there has to be someplace for that to happen and so that's why i look under statutory in a player which in the play here but i think it's instructive if you have minimal diversity folks from two different states and five hundred dollars in controversy you get federal court and that's got to be the lowest or sectional threshold but i think it recognizes the fact that there has to be someplace to have a stakeholders paper graded ok so when we join under rule twenty two he has a party to the case at that point when he was not previously a party to that case within twenty days we get mr purdie served and he enters in the parents and he comes in and he says i want i want to keep the money that i've got so far and i want to get the money in the future then after that miss weaver files her motion to amend and so she's not joining a party at that point she is seeking to assert a claim against any existing parties and so that's the distinction the judge means recognized and i believe the last footnote of his opinion that including to remain in the entire test because diversity doesn't exist it's just question if the if the threshold is met that the plaintiffs is seeking to join the part and that's not at all what we had here in the party was existing so therefore it's not a is this a joint or situation it is the does supplemental jurisdiction under one thousand three hundred and sixty seven dollars exist over the claims that she wants to assert against mr p defendant was not in the case was not considered part of the case but then later on down the road when the plaintiff not the defendant when the plaintiff seeks leave to join that party then the then the court says ok four so we took those cases had on judge means addressed those cases and found them to be not controlling because we had joined mr perry not not miss weaver so don't we have has nothing to do with underlying claims comic become a new group common nucleus nucleus of operative fact that's an easy question then part b says well we're not going to allow in certain circumstances supplemental jurisdiction over certain categories of claims and the concern that supplemental jurisdiction is aggressing is the sort of the plaintiff who can't get jurisdiction over a plant over a defendant that he wants to sue ok so the plaintiff sues a defendant that he knows will bring in a supplement and does not limit the jointer permitted by rule twenty which is consistent with the overarching notion in both the rules and the code that courts are to be deferential to parties who are facing competing claims there has to be a place to have their paper graded and we believe that that era was in federal court before judge means now with respect so properly analyze each step of the from her client from her lawyer saying you need to pay miss levy you didn't say tell us feel your pain didn't ask about the identity of the new person you just said you need a miss we were we sent a letter back saying we really can't communicate with you because you're not the beneficiary in our records and rest assured the insurance company like met life is subject to privacy issues and things like that where we can a form of lee disclose information to a person who is a rd party in the record ok and he at the time was busy the payee the person receiving the benefits so that's what the blank on that form requires so he signed it we sent it in to us we took a look at it and we reviewed the th grade because we ha a copy of that in our file you know in connection with the issuance of the annuity and when we took a look at somewhat agreement we saw that there were two sections regarding payment there was the lump sum section that referred to mr mr hickey miss for the lump sum payment and then there was a periodic payment section that was quite law that says that the following payments are to be paid to mister and at the very very end of that sentence there was a sentence that said claima reserves the right to request to change the beneficiary that sentence came immediately after the sentence designating miss weaver is the beneficiary and it's no surprise in a situation like this where the benefits under the annuity were set up where the payments were guaranteed for thirty years we were going to pay thirty years no matter what regardless of whether mr weaver passed away or not and then we would continue to pay after that for us on this he lived so in the event he died within thirty years we had to beneficiary change request in two thousand and two we look at the very same settlement agreement and the set last minute says climate reserves the right to request a change and the settlement agreement was signed off on by the insurance company for the defendants in the underlying ca so they had agreed to that power basically so whenever we get the beneficiary change request in april of two thousand and early two thousand and two we look at it and we have a little checklist that's in the record where we check off and say ok so we got on the list it did we receive a change yes the change request yes has this been authorized by the insurer for this you know the settlement sure climate reserves the right so we said yes so  texas law on the initial beneficiaries standing to be able to challenge she has none under the fidelity union versus methane case which we've cited in every brief we filed and which mr weaver has never addressed the supreme court said that but it was in tandem with the analysis that the agreement so so it's contemplating she has standing to dispute well i mean i i mean i don't think he i don't think he put standing at the front of the argument i think he just interpreted the agreement and then he said and by the way she can't complain about this scene method what's your analysis of the correct sequence you know i mean i guess i've i generally consider standing to be  i mean i think the result is the same either way i mean i think that standing is generally thought of as to be a threshold you know issue but i mean here i think the language as judge means found was clear that you know she did not have a vested right  she had a separate why don't you have an argument that you don't well the there are multiple references your honor in the section to the claimant and that tends to be attached to the person who was suffered the primary injury and is giving the periodic payments i mean the it made at least the settlement agreement is not a model of dress and ship i guess that's one thing that mr michel and i will agree about of course met life was not a party to that so any deficiencies in the settlement agreement really can't be imputed to us but i mean i think whenever you you read the placement of that paragraph you know that senate about climate reserving the right it's in a paragraph in a section that applies only to mr hickey but miss weaver also i mean i don't i can't look behind the log on that you know i don't know what that the net importer that was what i do know is that the agreement that she signed off on said that that lump sum is being paid to him her and the lawyers so you know i think that that was more than adequate consideration for the settlement of her claims and of course we've got we raise all kinds of issues about separate property and you know the right to control and things like that in our brief as well that support the notion that this was his because he was the one who was injured and we were entitled under the insurance co the family code to rely on whatever instructions we got from him so say that amount of time thank you my name is chris lystra and i represent james perry who was the subsequently named beneficiary under this thing the court is pointed out and and brought to their buddies attention the  the one thing that i think this case really turns on is for us the merits and that is the language from the settlement agreement which says claimant reserves the right to request a change or request to change the beneficiary of future periodic the claimant in this case there's not much dispute was mr hickey and following his divorce he did exactly that as i was listening to mr michel make his argument he pointed to the language as he called it mandatory recess such payments shall be made shall be due to diane hickey if larry does well i think i would agree with that if there had not been a beneficiary change such payments should be made to diane hickey if or if mr hickey had in fact passed but because he reserves the right to make the beneficiary change in the settlement agreement to which diane hickey was a part that's binding on her that's binding on him that's binding on at the time wausau met last predecessor so that felt acutely should have changed if she had brought her clean the state law a claim against your client at the outset instead of an employee if if she would have brought her case against my client initially and my client is a citizen a resident of the state of texas the jurisdictional issue would be change we would not be here i agree with that but that was not the case and in fact when she filed her original petition or complaint i no i don't think she even made a claim against the unknown pay she just named him as someone who is receiving money she didn't make a claim suit subject only made a claim but at the end of the day  keep was the claimant mr he had the right to change the beneficiary pursuant to the language from the settlement agreement and that is supported by multiple references that means is opinion were any kind of gave common sense use of the term claimant to the fact that he was the one receiving inquiry out of payments he was the one who had the right to change the beneficiary designat threw out the documentation had the designation as being the party receiving the periodic payments he was the one who had the ability to make request of met life change the beneficiary the fact that the payments were to be made slowly the periodic payments were made solely to mr hickey is support for the fact that he was a claim but not once not ever with these payments to be made to icke despite her claims to have some sort of beneficiaries that at this point time i'd like to address briefly a couple of the other arguments that she makes and that she was some sort of a rd party beneficiary i don't think she can be a rd party beneficiary in this situation because she was actually a party to the agreement she's actually a party to the to the settlement agreement she does not have status to make that make that claim she did receive consideration for the release of her claims which is the position she takes and some of the papers that she files because of the if you will the bifurcation between the way the settlement was split three one hundred thousand dollars to the hickeys and their lawyers and then the five hundred and fifty thousand dollar so claim being asserted against my client is the common law claim for money hadn't received in texas you know money which in equity in good conscience belongs to somebody other than the party that's receiving it in order to get to that claim  and both met life parties and their brief set forth the fact that when they went through their divorce proceeding if if there was that while this particular set of periodic payments the annuity payments were not addressed specifically they were addressed generally in the divorce decree and and generally payments and monies coming to the husband in this case mr hickey continued to remain his separate property they were frankly coming out of a personal injury damage are it should have probably said claimants but it is a capital c and both parties were claimants he got the payments while he is the claimant while he is alive she has the climate after he passes away they rely on for the exact transfer does not list him as a claimant list him as a pay if he was in fact to have an option down here right down here at the bottom claimant if different than pay i think it's a bit of a travesty that you can divest somebody that this ruined their marriage that's in the record obviously this ruined their marriage she gave up they gave up their young married life in this tragic accident happened and those are the type of things that happened of the things that would be her separate property her purse her personal claims would be her separate property his personal injuries or his separate property i agree he got those payments as his separate property after the divorce she got her separate property after the divorce which is good for either one of them is the same way claimant is not defined it is no where we both sides have scoured it to find any indication of what that could be but i think that both claimants and and judge davis i agree with you that dealt with and then used sometimes it's nomenclature your honor but if you're adding a party joining a party or identifying a party the st circuit chose to just discuss it post the amendment they looked at the legislative directive of the code and says congress has indicated that federal diversity jurisdiction is defeated so long after as after removal fictitious defendants are replaced with non divorced named briefs for three or four pages i invite the court to read those three or four pages and i say they does not distinguish doli accor casa unless it creates a little mr rection i mean if it's the frontal central point below and then dollars therefore the st circuit concluded diversity jurisdiction was lost when the court allowed the plaintiffs to identify the fictitious defendants that's exactly what we did the nd we to john doe defendants as such not to subsequently named parties identifying one of those fictitious defendants that's exactly what we did in your honor is that not common sense said we would not be here today spending all of this time and money and resources if we had literally just known name of the i don't think the court will reach the substantive issue i think remained as dictated by this court's precedent and one thousand four hundred and forty one and fictitious defendants and as i said there's a direct line between not knowing the name of the person alleging in our original petition a