t to address the question that was presented to us and then an order from this court about jurisdiction briefly and then i would prefer to reserve the rest of my time for rebuttal on the on the merits of the appeal itself with respect to your stiction the correct question that was asked us is whether the district court ever made any determination as to the amount in controversy the seventy five thousand dollars and the simple answer that question is  the district court never made any there was never a judicial determination as to whether or not the amount of controversy was not in this case the petition for  amount exceed seventy five thousand dollars and every person of the complaint in the complaint we have one count for bad faith we don't have a count for breach of contract because the contract benefits were all paid eventually after forcing our clients to go t made in that situation you understand the law to be that we referred back to the district court to make a determination as to whether or not there is jurisdiction and if the district court finds there is not it would be remanded a court that's one way to proceed i noticed in the goss case that was referred to in the order you did that the other way you actually this court simply remanded it back to the district court with instructions to remain out of the state court and i think that's probably i mean i don't think the district court will have anything statement of claim indicating that you are seeking more than seventy five thousand dollars worth of damage and then and then removal goes up like that and i state that what's going to happen here well we don't i don't know in arizona we don't have a statement of claim procedure the jury trial i mean i stood in front of yours and told them give me what's reasonable not suggested amount and there's no no procedural rule in state court that requires you to set forth an amount that you're that you're seeking and i wouldn't intend to in this case so  in our removal petition about the amounts and controversy was today i don't blame him i don't this court would be the last place i would want to find but i would like to suggest a couple of things george wallace number one the complaint in the state court said as to the compensatory damages this party was going to seek in excess of fifty thousand dollars that much is true the complaint also se damages and we know from a fairly long line of authority if the amount in controversy analysis may consider the future to be images at stake we also know that there were financial loss of alleged in the complaint although unspecified including the obligation by this claimant to pay additional attorney's fees and also i would assume the opportunity cost that she lost with the money of the it rather rather modest and finally they do seek statutory attorney's fees i know they're not and then if i did they could be two dollars or two hundred in that looks like two hundred thousand it looks like a suspect what's your best case that's we could say that that would not by our eyes ever be more than twenty five thousand dollars in terms of the attorney's fees exposure would always be more than twenty five dollars twenty five have to get up for seventy five for us to have jurisdiction to rule or the first thing that i was just judge i don't want to interrupt you but i was just asking for your best case what case do you have that we can just guessed that it would be over twenty five thousand dollars in terms of punitive damages exposure either one or both well i can give you a couple of different cases number one village which is one of the cases closest to the facts in this case the images that are approximately four hundred fifty thousand dollars you know i'm i'm not saying that i'm saying what cases are the rules in making our ascertainment in other words we have cases it's a term in excess of fifty thousand dollars isn't enough that's speculation and we won't allow that what case do we had to have that in addition to the in actually in excess of could tell us that we really have jurisdiction in this case i don't think i can damages what they're seeking for attorney's fees if i remember right it's rule ten of our civil rules the purpose of that rule is to avoid the kind of grandstanding complain for they can say in excess of seventy five thousand dollars instead of in and excess of fifty thousand dollars i would suggest they cannot in this case they did judge but consistent with our state court rules as a defendant the only way that i can come to court under diversity is to ask for some kind of assumptions and it's done routinely if it shouldn't be them we're making mistakes and the reason why i say i understand why one poses the question for this court and the other just not if you accept for the moment there are already telling this court we want in excess of fifty thousand dollars for the compensatory damages then the inquiry goes to the punitive damages and attorney fees exposure that we started to talk about we know that although campbell versus state farm has put some rules down to try and put some boundaries on the extent of punitive damages which may be awarded there are still multiples contemplated by that evaluated the jurisdictional amount and controversy at this stage in the proceedings that no one knows for sure of the total amount at stake for exam well you know from the state law he says that one hundred thousand dollars in emotional distress damages have been awarded in bad faith cases arguably with facts more severe than this but we could be at the end of discovery in this case rather than at the jurisdictional analysis stage and i still couldn't tell this court other than to point to the claimant harm and ask this court to quantify it for you attempting to do that with your petition to remove by saying upon information and belief plaintiff's admits that it's in excess of seventy five thousand dollars submit this court would meaningfully guide the trial court the disc recording the amount in controversy i did not have proof for example the benefit of any discovery requests i would suggest that if there was the settlement demand and i don't think there was but if there's a settlement demand that's not an appropriate kind of document you played it on the basis of information belief what's the information that led you to the belief well first it's a relatively long line of experience there isn't a bad case that my client has been sued for in which a plaintiff has been willing to say and today they weren't willing to say either that my case will never be worth more than seventy five thousand dollars that's why there was no remain and motion here because the plaintiffs did not want to get found and they're still trying to avoid getting bound here today with the admission that the amount at stake including attorney's fees and punitive damages will never exceed seventy five thousand dollars but i submit to you judge that even if i had finished discovery i would still be doing a little more than giving you my professional opinion about the amount at stake because it's not knowable in a lot of ways for the very reasons we described you don't ask about it because you won't get told there's   what case do you have that says it's sufficient to say information and belief i don't judge but i would i don't have a case that supports information and belief but i want to suggest to you that that is about the only thing that anyone on the defen of the court in good faith when intangible harmison stink it would be a lot easier if it was liquidated damages and with a hundred thousand dollar house that citizens of different states were just using you don't have thank you and this is almost purely intangible harm and the liquidated part of the case is easy to look at you know the lost opportunity of the fifteen thousand dollars in benefits but i would suggest to this court that this case is not much different from any other you may be asking for something that is not knowable and arizona state court if we were a man in this case to the district court to find facts fine facts of whether or not he has jurisdiction he would be in a position to  is that an appropriate way to solve the problem i agree it's an appropriate solution first the district court is better not better equipped but it's a better forum to have that kind of factual inquiry than have a  determination i see your problem lies i'm not oblivious to that i was a trial lawyer for fifteen years before i put on the black robe and i can see the difficulty i used to love to get into federal court and it would be unfortunate if local rules interfered with a constitutional right and maybe we should require the district court to make some sort of factual determination ok well that's helpful thank you for you ask you one question and just one question that there's not a dispute in the facts because the only facts that we know are what that lawyer says what happened that he made a mistake what they have to be arguing is you have to accept that it's a disputed inference it's reasonable and i w characterize that there's some kind of conscious knowledgeable wrongdoing by an insurance company because when their agent when their lawyer does something in the insurance company doesn't even know about it there's no proof that they fact of the lawyer fact although he says this was a big mistake if the jury looks a lot of factors and this gives that why wouldn't that be when the for the office and i would just suggest judge kozinski that what the district court was trying to determine was whether all states deliberately consciously active unreasonably that's a whole lot more than a didn't do it it's a big lie you know think of the joy of my vinyl under appropriate facts sure but this record doesn't even remotely support that kind of conclusion on this record first of all this court doesn't know what the investigation was because it made part of the record it wasn't considered apparently important enough or probative enough to beat the summary judgment motion to be submitted by the appellant in this case there's two steps in the investigation  claims for relief is not to demonstrate to the court hears all the facts from the record and we don't think that creates a trouble fact we're entitled as a party opposing affirmative claim for relief to suggest to the district court that there is no proof to support for example an argument that there was a bad faith failure to investigate the burden then shifts to the people who have the affirmative claim for relief to come forward and show the district judge wait a minute not only do we have expert proof examination report from dr stephen ground we know what was done there's no dispute that it was done there's no dispute that it was reasonable there's no dispute that it wasn't based upon the proper medical information there's no dispute that it wasn't submitted to the arbitrator as part of the decision the arbitrator reached we know that he struggled with what the different doctors had to say but i can't tell you just because in ski that all of that is in the record and i have to take the blame for that if the court believes it was my burden to submit all of the information and then tease out the parts that may or may not demonstrated triable issue i just respectfully disagree for but there is definitely other information for example you don't have the claims filed and that's an important part of the investigation who put it i'm sorry judge kozinski what about the evidence that your client had a policy of lowballing crimes first that would be important if in fact this quarter any court could conclude there was any why you keep harping on well judge with respect i would suggest this court not buy that argument that's in their reply brief in the argument by them as we only had a twenty five thousand dollar policy with safeco so that's all we really wanted to get if that was true speak we can get rid of third party bad faith in arizona if we could get the plaintiff's bar to agree that in every case the amount of stake is really only the insurance proceeds what i'm suggesting is wh is the end of the sentence if it was true as they suggest that the amount at stake in a tort litigation in state court is governed by the insurance proceeds first we never have another third party  faith claim and second there's an awful lot of cases where people are speaking more than they should and third the jury would be told how much insurance proceeds are going on under your own a law the collateral source rule absolutely prevent so how can it be that in state court if this remains there the jury wouldn't have known how much the safeco policy was but somehow outside of the relevant issues in that case that's a school policy defines the amount at stake i  to suggest that somehow the insurance policy the liability insurer controls the amount of stake in automobile that occasion it just ignores the reality of what happens there in state court litigation involving to claims if that was true the jury would have to be told how much to live below the insurance what so they could then say ok the dispute is within these boundaries if you accept their argument and we're going to determine how much within filed a motion to remain back to state court because i did not think that the amount in controversy exceeded seventy five thousand dollars in one of those cases i had less than a thousand dollars in contract benefits and an insurance policy that had not request do you think the procedure out of the right now we think there's any doubt about it do you think we ought to just remand it just take or he thinks we ought to remand for here i think you should remain at the state court i think you have everything in front of you that the state court's going to have thousand well i mean you might get more than fifty thousand but every minimum would be fifty thousand right and it's a bit speculative as well in the sense that it's a discretion was hired by allstate to handle the arbitration he says he decided to argue that my client was at fault in the accident even though all stated taken the position on two other occasions that it was none of her fault on our client's part and told the a claimant no we don't think there is i wouldn't fault them for that necessarily there in that the serial position that has to do with liability issues right now right now the issue now as it is a little different issues comes down did you all stay told you that this was entirely the fault of the uninsured driver what why in the world you going to the arbitration arguing that was her fault and all i could say was well i took the deposition of the first driver and i decided to do that well wh i ask and i've asked it in my brief here tell me one fact one new fact that he learned that caused him to reach a different conclusion than allstate had when they investigated one factor just something that that caused him to switch the cases where our supreme court has said this is this is so clearly on one side that summary judgment might be appropriate but whether something is fairly debatable is not not just an issue of did the insurance company believe that was also had an agreement with her lawyer that she would have to pay a greater percentage to her lawyer if the case went to arbitration and so she had additional attorney's fees and additional costs and she had to pay for half of the arbitrator as well and so they were the