anti slaps that she would apply in federal court but in this particular case o c p a conflict with numerous rules of civil procedure under the federal to begin with hasn't oklahoma court of appeals ruled that the standard that under the review under the state's statute the court is not supposed to resolve conflicting evidence is not correct the evidence so that finding by the oklahoma court regarding the oklahoma summary judgment standard is not controlling as to whether or not it conflicts with the federal but if in this case  the record showed that a summary judgment under the federal standard would have been appropriate and there's no real conflict in this case is there well the problem is there is that would be true if if there was a developed record d if there was summary judgment if we'd been able to conduct discovery take depositions d all of those things that's normally when you didn't request any further discovery before the court r so you knew that the federal district court was going to conduct essentially a summary judgment type review not based on the pleadings but based on the evidence before and you did not request additional discovery at that point and the judge essentially granted summary judgment against you so what difference does it make whether that was under the state the state statute or not the difference it makes i right to request a hearing and the courts are supposed to provide in every entry hearing so as we can provide an evidentiary hearing we would been able to or even even conduct limited discovery we would be able to take their position attached to numerous pleadings as an exhibit and in those transcripts or statements made by attorneys or officers of the court specifically saying that my client had made a threat upon the court and upon c the case on those transcripts they were attached as an exhibit and later on it was determined that the allegations against my client that he made a threat to the court was not true the allegation that i made a threat to the counsel in the case was not true also d to the extent that whether or not it's substantive or procedural applies and is pertinent oklahoma courts have called it know gives a limited right of discovery it also forces the plaintiffs to have a bench trial what when the defendant has the evidence has most of the that yes yes when it was dismissed the rules clearly provide that leave two men and st off the lead two men should be provided if the defects can be cured in this particular case the judge  ruled that they couldn't he dismissed it with prejudice and that was obviously fatal to the case that the other issues that we had is after he dismissed the federal claims there was a summary judgment there was an extensive briefing there wasn't discovery the case was in its infancy so there was no reason why this case couldn't have been remanded back to state court and that that concern is also high and when you're talking about a novel statute as a matter of common the important questions of state law should be determined by the states rather than federal and the oklahoma citizens participations act most of the cases early on dealt with whether it applies retroactively or not there really still has not been a lot of guidance from the people's court in the supreme court and by by dismissing it with prejudice and not remanding it not do that he one had group and ruled on it secondarily i said if the court doesn't want to remand it they can at least dismissed it without prejudice in this particular case i always think remand is a better option because you don't have to start all over again you just go back to where you were and you kind of pick up from there but but by ruling on the merits of the state claims he deprived my client of the right of the state court decide these important issues  courts and then they turn around and say there's no jurisdiction because those e p a defeats the claims so d in the least in the context of sovereign immunity the courts upheld if a pardon removes the case from sta court in federal court they have to accept the consequences of their action in the can then turn around and say the court lacks jurisdiction the mayor they're the ones who have asserted jurisdiction of the courts to begin with so for those reasons we argue that o c t a should not even apply to these offenders and that is also conflicts with some state constitution provisions primarily article two section to the court and made a threat to council really serious accusation it turned out that that's not true because they made a false report of a threat they are responsible for abuse of their rights retaliated against for his conduct his speech my client blog he said things that were inflammatory but it's protected speech and they retaliated against him for that by making the th report of a threat  ok thank you thank you  you don't need to swell up you need to stand there to want to watch the proceedings you don't need to stand at the podium coun joint cross appeal and response mr richards is going to be prepared to present on the issue of the cross appeal and the denial of attorneys fees cost reasonable expenses and sanctions under the o c disposes of the federal claims federal law claims early in the case which happened here if you look at a action has been well you're going to say they're both in the same judgment they are in the same but very early in the case and in fact where you look at this posed of the federal law claims and we have a pretty consistent practice they are saying that the district court in that circumstance should dismiss without prejudice the state law tell we can we can hear now thank you thank sorry as your honor well knows the th circuit has articulated that test for retaining supplemental jurisdiction and it's that that your versus cash county court back from we should not every time but ordinarily when it's disposed when the federal claims are disposed of early in the case go ahead and as your honor correctly points out judge turn in this case dismissed the o c p a claims either simultaneously or if you actually read his order from the signs on twelve the motion or the twelve the motion to only apply to the federal claims because he has already dismissed the state law playing so within the concept of the fatter test what discretion should be exercised in terms of i agree with your honor that it was early in the case but the other test within that that are i think weighs in favor of church current having supplemental jurisdiction and not abusing his discretion in finding that the o c p applied or had he found that it didn't apply the ruling on the state law claims also under the twelve b six motion that the university of tulsa also filed on the includes you raise an important issue under the that one by the oklahoma court of appeals which i understand was a published opinion which makes it then the rule where they talk about being mandatory determination and then and that was the night it was the year before the oklahoma scream court and spoke and they talk in terms of it being discretionary now that in of itself gives me pause that that did that issue has got to be determined and i don't understand why oklahoma shouldn't be the one who decides that issue as to whether it is mandatory or is it discretionary in the fees and i believe that we've got three cases from courts that speak directly to that you've got the state the one which is the oakland court of civil appeals case i don't care what the oklahoma court of appeal says if the oklahoma supreme court has said indicating that it might be discretionary prevails and that it is mandatory in its application when i see says but the oklahoma supreme court stated in its motion to dismiss under the o c p is granted quote the court may award costs sanctions and attorneys fees to the moving party and that's the singer case i believe that you just quoted that right what i  and i don't have that in from your honor so i apologize for not being well heard i'm just saying that's what's really bothering me so if you can overcome that with another almost bream court where they say it's mandatory versus being may then  i'm willing to go that route but right now i'm of the opinion that the oklahoma supreme court has said it's when they use that terminology that it's discretionary to award it and i think that there is a distinction even though your honour's are correct that it's all wrapped up in this issue of whether the law applies in federal court or not i think the issue of whether the fees themselves are mandatory versus discretionary is an issue that only can be reached by this court if it finds that the law applies in federal court and so the question is mr mchugh in his argument this morning made is whether that is the last option of a procedural it doesn't conflict or is the federal occupied feel dependent on the different supreme court cases you want to look at all of those need to be determined to decide that whether judge kern in dismissing under the o c p a and then to not fees because sanctions additional expenses was abusing his discretion in that denial or whether he should not have even reached that dismissal to begin with is that another reason for us to this dismiss the state law claims without prejudice because we get into this  messy shady grove since you and that's totally unnecessary not only are we i think used to some extent violating comedy by deciding oklahoma law that appears to be undecided but we'd also be getting into a very messy area of the law i think you'd agree on that it just i think a much  police excuse me believe that the district court's decision in the case was proper regardless of which of the different laws that he used to reach that decision certainly as your honour's are all well aware you can reach the same conclusion if for different reasons if supported by the record that's in play and obviously a pelleas would assert that dismissal under twelve b was appropriate of the entirety of the case based on those same has as judge turn and as your honors are well aware from the different anti slapp laws especially the new mexico one that you wrote a couple of years ago your honor additional avenues for defendants in free speech cases or right to petition cases that they may then reach and the motion to dismiss as oklahoma has defined it operates as as you indicated earlier this morning it quasar summary judgment motion i think it is substantively different then rule fifty six because it has a burden shifting that does not exist in rule fifty six however it is in fact what differences the burden shifting make if there's as court of appeals has said as long as the court doesn't weigh evidence what difference does it make whether there's a burden shifting is that a is that a burden maybe there's a burden of production or burden pleading i don't want to get into it's not a mcdonnell douglas burden shifting argument right but at the same time it requires in this case a pelleas holist of the fenice university of tulsa have a burden of production of evidence before the court can then determine whether in this case mr barnett has met his what would be the quasar summary judgment evidentiary standard of pleading evidence to support the facts of the elements of the claim so different from summary judgment where the defendant says you haven't put on any evidence to show the elements of the claim so you actually use it actually adds a burden on the moving party to present evidence prior to even being allowed to seek judgment or in this case the nonmoving part is required to present evidence to show that there is a material fact in question the o c a requires the moving party to present evidence of its own before in this case judge turn could then reach whether mr barnett had himself then presented evidence to overcome that o c p a motion to dismiss i think counsel for mr barnett jump the step when you talk about whether this is substantive or procedural i know judge paul docu in los lobos said it was clear that the statute was procedural you had new mexico cases cordoba i think it was the new mexico supreme court that had called that statute procedural and in fact if then relied on a different statute to provide the substantive protections under that we have a different situation here we have multiple state courts who have found it to include bot substantive immunity defenses and again i understand that you didn't exactly love that terminology back in those logos but the over the supreme court in appellate courts have found that is in fact what the o c p a does it also provides as we discussed in our brief and i think even judge kern notes that it provides damages in the form of sanctions fees costs reasonable expenses that are not available under any of the other federal rules so i think that there is a difference here than in most lobos or even in some of the other sectors excuse me state statutes or d c circuit statutes at play and as you noted in your los lobos opinion judge the the individual state statute and the definition of fifty six so i think that you have to look at what has happened in oklahoma over the last couple of years with regard to the o c and find that it's a substantive law and then you get into the question of whether the rules cover the same area where they are if you take just now justice kavanagh's opinion that rule eight hundred and twelve and fifty six or so broad they basically cover anything that might happen and rely on the shady grove plurality at least for that decision that basically we were never going to invalidate a twelve or fifty six well that are present in this circuit is contrary to the way judge kavanagh interpreted shady grove and and we've got to deal with that problem too don't we i do agree and i would at least argue that we have the walker vs armco steel court case which is supreme court case from one thousand nine hundred and eighty that say substantive law and federal procedural laws unless they directly collide you ply the state substantive law and that the two can exist side by side with each controlling its own intended sphere of coverage and that's ensued in this case what judge kern found was that they occupy different purposes and pieces within the pretrial setting and he then cites the specific purpose of the o c p a compared to the purpose of rule eight rule twelve rule fifty six dollars rule eleven to show that those are not intended to be occupying the same sphere and then in fact it's the rate your case from i think it's twenty forget the date from this circuit that says that you apply state something substantive law when it is in fact a substantive law and so i think that the fact that oklahoma has declared the substantive and your honors are not supposed to substitute your judgment for the appellate court's judgment from the state in which the law is being applied to determine that question requires you and i say require understanding that you're not required to do anything i tell you to find that the o c a did in fact apply to this case because there is nothing that prevents and in fact we move on to rule twelve as well as the o c p a and there's nothing that would require if we were to lose an o c p a motion not being able after discovery's over to rule under to move  r rule fifty six to dispose of the case on down to ten seconds i don't know that i'm going to be able to provide much time for mr richards i apologize thank you counsel thank you cases submitted