the honors i'd like to begin before getting into the particular issues under catherine by correcting a mistake they really over arches the entire appeal the apple e's begin and end their brief with the suggestion that there is a presumption in this case in favor of remained and it's an understandable mistake because they're taking that from a long line of cases both from this circuit and others which do in fact say that if the courts  doubt it should remain and and the run of the mill case but this is not the one of the mill case it's a case under castle and dart cherokee the united states supreme court just last year made clear that in view of congress i clearly expressed desire that these types of cases proceed in federal court that that presumption no longer stands it said it page five fifty four of the opinion and i paraphrasing whether or not that presumption exists and  cite dart cherokee you find that the circuit courts of appeal that have discussed it have now begun to take this into account and have pointed out that there is no presumption in favor of  ninth circuit in particular has specifically said that all of its precedents to that effect no longer hold with respect to catholic aces so let's address the specific issues in this appeal i'm going to address first the amount of controversy and then move on to the single event exclusion time permitting i may talk very briefly about the local controversy exception and the home state exception but if i run out of time i'm comfortable relying upon the briefs for those i think it's clear that the plaintiffs don't carry their burden under those exceptions so to begin with a mountain of controversy the district court remain and it's solely on this basis that recognize that the criteria for a mass action or otherwise present that is we have the claims for one hundred or more plaintiffs they seek a joint trial and they do so on the grounds that their claims involve common questions of law or fact the court now it is true that the individual claims that comprise that mass action still must meet the seventy five thousand dollars requisite and if the plaintiffs identify any organ didn't make a finding on the aggregate right she just she made her final ruling on the individual that's correct your honor it's kind of it's no lowery dispute in this case everyone's agreeing one plaintiff is sufficient as far as i can tell she her opinion begins that way was there attorney argument in front of her on this issue was there any hearing at all the there was and i don't remember specifically on this issue but i think giving her the benefit of the doubt what she was saying was she didn't find any of the plaintiffs not the seventy five thousand  so she said if none of them meet the seventy five thousand requisite there can't be jurisdiction over a mass auction and i guess i'm in a big hurry to get to what evidence there that that leads you to conclude that a plaintiff anything plain means that seventy five thousand dollars and judge graves there is evidence and i think it's also clear from the face of the pleadings i want to discuss both so from the face of the pleadings some of these plaintiffs claim very serious diseases cancer and so on claim serious is your claim risk no claim serious diseases can actually claim that they have cancer as a result on the face on the face of the complaint you know that's actually in the you know in the discovery facially and i appreciate the correction facially what we have are the allegations i think there are allegations generally of cancer and other serious disease there are certainly allegations as to cancer or only risk or fear of but not an actual played cancer prostate leukemia anything i thought that there were even allegations of cancer but i think it becomes kind of a red herring because when we get to the evidence there are very clearly aren't specific claims for specific plaintiffs if we were to look at it just racially we would have to do some divisibility right in order that about the seventy five thousand since the claimant the pleading was just collective and what's what cases ever done that sort of divisibility well i think that what you would do is you  you have to consider by divisibility i think what you're saying and tell me if i'm wrong is that we're trying to get to a five million dollar aggregate we have one hundred eighty nine claim aside the five million entirely i'm just looking for any one plaintiff at seventy five if the pleading is collective entirely which seemed to be her concern the only way we could hypothesize about seventy five would be if we establish collective number and then divided am i right i think you could do it either way i think you could either approach it that way from the collective number and go down to the individual or you could go up from the individual to the collective number and i mean to talk and i want to move on to the evidence because i think it's makes that makes it  very plain that the amount of controversy is met but before i do that it we have a track record in these cases and the lester versus exxon mobil case a remarkably similar case with plaintiffs making the same claims and i'm not talking about cancer i'm talking about the claims of all the plain of sav on the face of the pleadings to the workers themselves that they were the workers but all they didn't they weren't claiming disease they were only claiming fear of cancer increased appeal and then because it split we went to a five judge panel that five judge panel awarded damages to those eight planets ranging from one hundred thousand dollars alone to one point one million dollars the high and that included that's your argument by analogy we can we can analyse this case to those and determine that the amount must be at least seventy five thousand dollars if they're right and just exactly a lot of them did you make that argument below yes or on we did amounts and almost every one of them talks about fear and fright and you have some experience trying to these kinds of cases i have some experience trying cases where people had fewer fight claims where they left millions on the table in the jury found that nobody had claim opportunity to propound discovery is that right as well you limited in that other than the limit was in connection with the question of jurisdiction where the any other limits on the other one why did you propound any requests for production to die i allegations of what damages they had and in response to that we got most importantly a chart and on the chart the plaintiffs actually list of plaintiff by plaintiff what damages each of them were claiming and they did so under a c that they entitled damages we've we've reprinted some of that in our brief but importantly what i would point out your honor is that many of them specifically claim very serious disease  he's what i think is a point for me and point for me if we begin with the complaint unless i accept that i can look facially at the complaint to make a determination everything goes over seventy five thousand dollars what i'm looking at is a situation where all that happened as a result of the enron of the discovery which the judge said you can hand on the issue of jurisdiction all that happened is they got some plaintiff specific in a derogatory and they found responses where they put names next to the categories of damage that that's the only thing i see different from the complaint is they took all the categories and then they stuck some names next to them so unless the company i'm left the complaint gets me to seventy five thousand dollars on its face i don't know how ranting names the categories suddenly gets me to seventy five thousand dollars and regarding the specific point of help me with them so to answer your own or first as far as the face of the pleadings this court has in the past not hesitated to find the requisite jurisdictional amount present in the face of the pleadings an example of that and i don't remember if this case is cited in our brief as luckett versus delta airlines a case where the plaintiff checked her luggage on a  flight she put her heart medication in her suitcase and the luggage was lost and so she ended up having congestive heart failure at her when she arrived and she was taken to a hospital and she was treated not for that long and there was a question whether it met the requisite amount and what this court said is we don't have to look at beyond the complaint beyond the allegations that she she claimed that she had congestive heart failure as a result of the airline's negligence i think the same works here but if we have to move on to the evidence the chart does more than just kind of are a russian roulette mixing names with allegations it has very specific allegations and i i can't recite them verbatim but i invite your honor to look at the the that those discovery responses or you can look at the chart in our brief which quotes them and they are very specific they allege things like a seizure of use birth defects cancer leukemia and these are not just categories of damages that they are saying we are we want to fit into that category this is an individual  i so and so claim that i have leukemia as a result of the exposure to naturally occurring radioactive material now there is no way i mean your honor knows there is no way that a cancer claim is worth less than seventy five thousand dollars there is no way that a claim of seizures or birth defects is worth less than seventy five thousand dollars for each of those claims is worth at least several hundred thousand dollars but they only have to be there are thirty at least thirty such serious claims they can be worth much less than several hundred thousand dollars i believe the number is just if you consider those thirty claims if they were worth only one hundred  sixty five thousand dollars each that would get you to the five million that's disregarding that there are another one hundred fifty nine plaintiffs who claim other damages it's also disregarding that these all of these pla completely separate from their personal injury claims they have a claim for unjust enrichment they claim under a theory of equity that they are entitled to share their gruffness the graph or defendants in this case who earlier won fifty six million dollars that they're entitled to their share of that fifty six million dollars fifty six is what's now after the land remediation fifty six million dollars is what they were awarded at the going to hundred sixty eight and then the quickly leaving and i want i do want to talk for a moment about the single event exclusion why should we if we if we end up agreeing with you on the amount in controversy and we were to reverse on that part why isn't the better course to send these other issues you're about to get into these exclusions and exceptions back to the district where it just seems to me it's highly unusual for a court of appeals to make those determinations in the first instance especially when the local of vent it seems to require a good understanding of what the actual doesn't apply is because this court considered this exact issue and rainbow gun club just two thousand and fourteen and what this court said and it could not have been more clear at page four twelve of the opinion and i  and some the text the legislative history other cases all lead us to a single conclusion and then at the end of that paragraph a pattern of conduct can qualify under this exclusion but only if it leads to a quote single focused event we don't have a single focused event here what we have in the end the complaint is an allegation this is paragraph eighteen of thirty four years of pipe cleaning we have an allegation of paragraphs nineteen to twenty of long term exposures thank you mr s controversy the seventy five thousand dollar individual mount controversy requirement the district court went through the proper analysis it examined the two areas that you need to examine when looking at a man controversy first examined whether it parent from the petition that the amount of controversy was met and then it moved on to summary judgment type evidence how does one of these eight people who are claiming cancer as a result of these contaminants how is that not a seventy five thousand dollars case reach of those people i would direct the panel to other physical panel cases that have found that just so laundry list of damages in then individual eyes and that laundry list is insufficient because you're making conclusive allegations based on to the plaintiffs just saying these are our injuries there's no after david's there's no medical bills rectus to those case burn yard versus dow chemical or this board said simply to infer that the amount of controversy is met simply because the plaintiff has alleged a lengthy list of damages is insufficient those are focusing on allegations in a in a pleading i take it yes right here we have discovery responses saying that these eight people have cancer claims we're basically saying we shouldn't noted it's just a generalized collective list in the petition there really is no difference but more importantly the district court found that when petitions are in a federal complaint you usually have these laundry list like we're entitled to everything under the sun because the lawyers afraid maybe they're going to forget something in there to be in trouble down the road so when you get you know we're entitled to equitable remedies and damages in punitive and attorney's fees and everything and i mean here you have someone specifically saying what diseases they've contracted as a result of this environmental contamination and you're saying we can't look at that well it's not just the summary judgment type evidence says what the district court found that predatory issues that in that second path that you take in which you evaluate whether or not the amount of controversy is met you need to consider summary judgment type evidence in that was insufficient in the court's eyes to qualify as that and more so the dish a court found that just listing diseases in claims and assigning them to individual mass action members is insufficient because you're taking that less in then you're concluding just from that assertion that the amount controversies met in that is not summary judgment type evidence so i didn't understand her ruling to say she couldn't look at those interrupted tory answers is that your position yes your honor that's the in the court order to remain and she says that the summary of the discovery responses were not considered summary judgment type evidence i believe it is the second to last page that's the supporting authority for that i thought in these jurisdictional amount determinations the district court could look at anything in the record well certainly you can evaluate any evidence of a record but something that's not an affidavit or evidence is not some are judgment type in making a kaffir jurisdictional determination do you have i guess i heard you to say her determination was that those responses weren't sufficient summary judgment type evidence it's not that she couldn't look at them she did look at them and she determined it was insufficient a summ essentially yes you make said determination she found that it was insufficient to establish the amount controversy requirement because another key note that person counsel didn't go into is that there is a burden shifting that takes place in the initial notice increased on the defendants that it's now by binders of the evidence that they have to show so it's that increase burden he made the conclusion they didn't make a proponent's we review this to know you aren't saying it was similar in its focus on severity of injury and multiplicity of plaintiffs with the list being not a laundry list but judge smith called it a  ciro wide variety of harms yes ron i think that the claims are similar but i don't think in that case he was evaluating it as far as any evidence he was just evaluating it from the petition right but if but that was found sufficient a wide variety of forms as to multiple plaintiffs is sufficient yet your opening here laundry list multiple amount in controversy so forget all these technicalities about it's a list it's and maybe they matter maybe they don't but just for the purpose of this question forget that it's an a list let's say these are declarations the perfect evidence of the way you want it and you have a client who was exposed to these radioactive material and as a result got cancer you're going to be asking that jury come trial for a whole lot more than seventy five thousand dollars can be asking for millions of dollars aren't you oh yeah we were so but why isn't that the answer here but that does not mean the defendants kiri their burden of establishing the amount of controversy over us to use our experience with with cases with with common sense and looking at what the allegations are of injuries assessed what the likely amount is why why am i wrong about that well i would direct the court's attention to where a different panel of this court decided that just making this charge us for a variety of declarations that we have these claims are allegations in then for the defendants to use that as definite proof that the amount of controversies met is insufficient in a case like this how could a defendant then words collectively pliant how could a defendant ever ever show that one individual among the what the situation was surrounding the climate but here we do have specificity right plaintive jones he claims he got prostate cancer correct yes yes this ashley claims she got she engaged in the analysis of looking at though that document right what not just the pleading but she didn't go individual by individual did she address mr jones's claim or she looked at the discovery evidence whenever she moved to the next path remind me what is it that she determined the plate of jones's claim wasn't in excess of seventy five thousand what was her assessment individualized as to what was an individual i says to him it was just saying that just because the discovery responses assigned cancer in fizzy meant to specific person does not mean that it one qualifies as summary judgment type evidence or two is more then a conclusion based off of the to prove that the amount of controversy exists and they did not do that they had a month to take any deposition any sort of clarity any sort of medical bills anything like that and they simply failed to do so and because of that this case needs to return to state court where many cases like it had been proceeding and because this isn't here only a local matter soon here only local pace that affects local citizens of louisiana and should be dealt with accordingly in state court because of that and that's where you get to the exclusion yes s where we get to the exclusion now the exclusion is interesting just because of the burden on the exclusion now there was a lot of briefing about this and i don't think wall i know it's never been addressed explicitly by this court or the supreme court and it's been touched on a little bit by other courts in other states and essentially there is no conclusion as to who bears the burden of proof of showing that include exclusion applies or does not apply so one that we're talking about in this case is the local so the plaintiffs would say that the defendants bear the burden of proof because whenever you came in the statutory language it's pacifically says under the mass action required means that a mass action shall not include in list for scenarios and so plain as would point point the court to that and say that that is excluding these scenarios from the definition of mass action so whenever you produce katha and you say this is a mass action and a cattle those four scenarios are not included in that statement and because of that defendant must show that this is not one of those type of scenarios that you do have kaffir jurisdiction because you are dealing with a mass action because otherwise it would just be the play news showing that there is jurisdiction it would shift the burden so plaintiffs would correctly assign that burden to the defendants and if you establish jurisdiction under the class section fairness act just like the one hundred plaintiffs minimum is just like the minimal diversity is just like the two a mountain controversy requirements are that defendant must make that requirement just because defendant alleges that once established that one plane is attains a seventy five thousand dollar amount of controversy requirement then the burden actually shifts to the plaintiff to show which other plane is don't meet that requirement in then those pointers can go back to state court and are released we would contend that that is abundantly incorrect because that would be going against any traditional notion of removal in federal court is not the plaintiff's duty to show whether or not a player in individual play meets a specific amount of controversy requirement it is the defendant's there is no burden shifting analysis and amount of controversy there is simply the defendant has a burden to prove that an individual plaintive attains the seventy five thousand dollar man controversy requirement if they make this  would contend that it would be reasonable to find that just because of the collective nature of the petition it would be yes yes if your focus is on what the district court found which is one plaintiff can't you can establish that one plane up to seventy five our focus is is on the individual eyes plane is but even with the five million dollar requirement the defense have to make that showing have to meet that burden of proof and and so it's not jurisdiction over the action what happens to the remaining points that you would get into well saying what would happen in connection with those remaining plaintiffs and whether or not they will come requirement to establish that the seventy five thousand dollars was made as regards remain in place with what happened to me that's that's kind of the ridiculous set up of of the class action fairness act is that it divides a mass action or even a classic  and let's say that's all they did mr joseph says in federal court the rest go back to state court that's what the plaintiffs contend because we don't have the burden of proof to show that they don't meet the seventy five thousand dollars amount controversy requirement is an affirmative proof on the defense to do that so based on what you tell me what they're asking us to do is make a determination about individual point us and then we got a pick at least i think  k we could conclude that as regard to at least the one the seventy five thousand dollars is meant we could decide i guess two three four five but we need to be specific in our ruling if we make that determination and then as regards all the other plaintiffs they go back to state court all the ones we don't identify and say the seventy five thousand dollars is made is that right that's what at least that's our argument and that's essentially the implication of how the class action fairness act is set up now the difference between our position in the senate says that they think that they contend that there's a shifting in that bar that once you find that mr joseph meets it then it's on you say that's what do you have one do you have any case for that proposition and two are you saying that that's a mechanism that would occur in this court are you saying if you lost as to any individual it would be an argument you would make back before judge moore i would i would say that we would of course make that argument if that is remanded for further discovery on the other point is but you haven't made that argument to us if you lose as to one this court should be deciding as to others the record establishes that they don't well i think that in the briefs we outlined the fact that katherine it's text says that the federal court only maintains sure stiction i see them running out of t that meet the individual wise man controversy requirement of seventy five thousand dollars and so for all those that don't they need to be remanded back to state court now the real question is who's burden is it to prove that and so contend that it's their burden because to do the opposite would go against any notion of of federal removal or jurisdiction we thank you for your time the same two questions i just asked you besides saying it's in the text what case do you have for that proposition and the second question was even if you're right wouldn't that be an argument you'd be making in the first instance to the district court decided to remand it because of the interview visualise requirement we're not going to address minimal diversity we're not going to dress the aggregate amount she didn't address anything so we did make that make that argument this suggestion that that we have to prove five million by looking plaintiff by plaintiff and simply wrong the five million dollar amount of controversy a requirement is a requirement both for class actions and mass actions the same requirement in a class action all you have is a proposed was his argument i think he's saying that you met your five million aggregate but you would still have to particularize each individual well that's if that's the argument it's also simply wrong the only requirement the only jurisdictional amount requirement for jurisdiction over a mass auction is five million dollars period end of story now it's also true that if there are individual plaintiffs who don't need seventy five thousand dollars they're not subject to the court's jurisdiction how do you say that should i think the i think lowery makes clear that it's up to the plaintiff to identify any we didn't hear the plaintiff this was standard practice within within this field of medicine that kind of say he would meet it with an affidavit or you could have a deposition which counted the claims made by the plaintiffs you take depositions offer up those de somebody says they got it meant that they had medical expenses in the amount of hundred thousand dollars and us for all your medical bills and the only one they produce is ten thousand and i guess now the question is you had an opportunity to do any s all of that as a result of this order for discovery on the question of jurisdiction and for whatever reason it was determined not to do any of it your honor once it's clear that discovery responses are summary judgment it's not always been clear i'm not saying they're not i'm just saying what i think when it's a summary judgment type evidence you're not limited to just discover we're not live that we could have done in iraq or tories could have done more to put there was no reason to do more we have responses sworn responses from individual plaintiffs and frankly i mean it to be to be fair part of the problem is likely this because of this kaffir requirement you have a situation where in order to have a case in a federal court under kaffir jurisdiction you put the defendant in the position of arguing against the really their own interest because the defendant has to say their claims  council opposite sides recognises this and what it says it is it's not the burden on the removing party to show what the plaintiff is going to win or even that he's going to recover all the damages that he's asked for or rather the burden on the moving party is only to show what the plaintiffs seek and this is the amount and controversy and this can be shown through discovery responses and these discovery responses that i just heard opposing counsel try to walk away from a little bit they could not be more specific let me just give you an example evelyn anderson claims cancer loss of hair skin rash breathing problems miscarriage allergies swollen glands headaches dizziness seizures numbness muscle and joint aches from exposure to radiation she's not just picking categories these are very specific claims in fact i don't think they're repeated as do any other plaintiffs now how does this plaintiff not have several hundred controversy is at least for these thirty plaintiff several hundred thousand dollars and that's just thirty plaintiffs there are one hundred fifty nine more plaintiffs there's just no way the amount of controversy isn't satisfied the if i can just say one last thing i  book but it needs to be the last that it will be the last thing i cited what i like about bernie are they cited what they liked about barnyard what they don't they don't say is that bernie yard was a class action it wasn't a mouse action so there were no individual plaintiffs before the court what the defendants did was they relied on census data guessing as to who would be in a class then they extrapolated what those claims might be worth that's what the court was criticizing we don't have that problem we have to allow for oral argument in this case it's a little and i'm sure you know it's a little bit unusual that we would have oral argument but it's a very important issue it's a very important case we take it very seriously and so we do appreciate your agreement to do that in this case we're