should vacate the stay in this case and hold that it was improper for two primary reasons the first reason is because the land a state is improper for two separate and distinct reasons the first reason is that the district call made an error of law and lucky a tells us then whether has been an area error of law and granting a stay it's per se improper and the error of law here is that at this stage you're on it you have three diff separate reasons for jurisdiction in this case the first is that my client find itself effectively out of cult there is a long running president in the ninth circuit because of the concurrent running state court action the column pagar action which continues but that's the cases you cite for the effectively out of court reason does not apply here because the district court here explicitly declined to stay the case pending the outcome in column he's waiting for a decision and another state court case and frankly might help resolve this case sooner rather than later you're right court may have said i'm going to stay the case pending dynamics and not pending the state court case the practical effect of it is we really do have a colorado river stay and not allowed to stay aren't you so perhaps going to be getting the case back on track for you because dynamix was argued before the california supreme court and fair words six and under their rules you should have a decision and three months you're on it and so maybe you should wait till that decision comes down see what the district court does with that before crying foul several aspects first of all the state in this case will not automatically be lifted when the dynamics decision comes down the state decision specifically said we can then apply to have the state lifted and so unless and until the stay is lifted the wrong shall continue and so we would ask that this court issue a decision holding that the landa stay was incorrect when i'm suggesting is maybe the wrong doesn't apply until after you were someone makes the motion for the court might have an argument your good argument you wanted two responses so that the first is the obvious which is it's taken eighteen months to get here and then a period of time before we get a decision so if we follow joel proposal we might be seeing you in two years from now at which point it be too late because the state court decision would have resolved an important issue which my out of state client has got a right to have a federal jury decide not a state court judge decide which is where we're headed right now the second issue is that's effectively to say well the land to stay in place right now is improper but let's just leave it because we'll see what happens and see if there's another area there's a present error that should be resolved by they scoffed which is that the land the state is a problem for choose distinct reasons the first reason is that because dynamics does not apply to this case dynamics only applies to wage audit claims that is no way georgia clay and mentioned all pled in this case the second reason is that the londis factors are not satisfied very specifically the suppliant of a stay must make out a clear case of hardship or an equity in being required to go forward that didn't happen here and in fact we have the and usual circumstance where because of the state court action the plaintiff has already in the pleading in the state colt said that they would be prejudiced if there was a stay and so by definition the londis fact is requiring plaintiff to make out a clear case of harm cannot possibly be satisfied and frankly that's the reason we're here this issue never got briefed the district court at the end of a scheduling conference said he was going to stay the case pending dynamics and if we'd had the opportunity we would have been a show that eight dynamics is not relevant and b the hardship factors are not satisfied did you ask the court to reconsider and or did you support apply motion citing landis and say wait a minute judge you've run off the real here despite your good intentions your honor in this case there was not a reconsideration motion there's actually three pla the column state court action each of whom have individual cases and another individual case came before the federal courts shortly thereafter which was also stayed pending dynamics it was very clear the direction that the federal court was going and we wanted  is that this state violated colorado river and the extension doctrine essentially what we're dealing with is while the court said well i'm issuing a standalone decide not colorado river you can't just put your head in the sand and ignore the practical impact the practical impact is that in fact it stays cold case will continue will run towards a decision and in particular the very important issue of employment cost of occasion and  a state court judge will decide that decision whereas in the federal case my client has the right to a federal jury trial decide that issue and so we would ask that this court issue an order which directs district courts both this one and in the future that if stay but the circumstances of a concurrent pending state court action exist that you have to actually look at the colorado river factors as well and not ignore the practical effect of the stay and rely solely on a technical procedural and that's consistent with all of the cases dealing with status if you want to reserve the balance of your time yes thank you please the court ellen graves on behalf of michael george as we talk today i'd like to first address jurisdiction and then address the contention that the court abused its discretion with regard to jurisdiction the argument fails on both the facts and the law and there's two ways in which the company's argument fails on the facts the first the court has already identified and that's when the world argument on the sixth of february an opinion will be forthcoming in less than eight weeks unless the writers write very very quickly that means the dynamics opinion will be out before this court's ruling is out if not they'll be very close to contemporaneous but your opponent says dynamix has nothing to do with his case and this is all been alarmed waste of time so there's two important points about that first is that they wrong and second is if they are right then that defeats their argument for prejudice so let me address each of those defendants theory is that they can know how the california supreme court will write the dynamics opinion and they believe that the california supreme court will write an opinion under which there was one standard for being an employee for purposes of the wage order and a separate standard for being an employee for purposes of the labor code contract claims are common law claims and i'm not saying that's impossible but it's both speculative been highly unlikely imagine if you lived under a regime where your gardener was a wage order employee but not a labor code employee and your housekeeper was a labor code employee not a wage order of boy for employers and employees that would be a really tough standard to actually have be the law could be the way that the company builds this theory is they point to some language from the district court case and say look them actual either accept or reject this language that's not how courts of appeal work it turns out you all right stuff you don't just have a button that says approve or reverse defendants theory that it knows exactly how dynamics will be written is fundamentally false defendant's theory also fails because it conflicts with their theory of how they have prejudice here remember defendants prejudice theory they just told you that they are prejudiced because there's this paga action in state court which will be subject to dynamics and which they think might get resolved before the federal court case set aside that we're now only eight weeks away from dynamix and it's not even a trial date in the paga case but imagine that happened under defendants theory dynamics will control the state court paga action but they'll be a completely different standard applied to this action from mr george individually that means they can't suffer prejudice because if in fact dynamics is written the way defendant says it will be they'll be two different standards if dynamix is irrelevant here and the party case is going to be driven by dynamics whereas defendants prejudice they'll get to relive again the issue of employment status on whatever the other standard is that applies to labor code claims contract claims and common law claims while the pocket case is governed by what they hope will be a very litigating that same issue under the principles of collateral stop it depends on what the standard is for employee defendant has told you no because they've said dynam x is going to provide two different standards now if defend it was wrong i dynamix is controlling and that case is decided on the exact same standard then yes there could be preclusion but we don't know how dynamics is going to be decided which brings us back to the wisdom of waiting for didymus right so the answer is you can't tell until dynamix comes out  importantly if dynamics comes out the way defendant says it will then the answer would be no because there wouldn't they be two different standards and that this would be really good out of curiosity are you aware of with the briefs or early arguments and dynamics might lead to guess that the decision that the court might be coming down with i followed dynamics very closely and hesitate to ever guess about what the california supreme court might do my belief is that you're going to see a movement away from the roe standard i don't think we'll see a two tier standard just historically really really think about what it would be like if a building full of workers fell into multiple cat you have three categories are never going to come a fact probably not  especially justice who for example he doesn't usually go in for something that bet fancified hard to work with right i don't see those i don't see this bench making life as complicated as defendant thinks it will but that's really not the point here the point here is you can't build your alleged prejudice on speculation and their prejudice is completely incompatible with their jurisdiction argument right so so the answer is they can't possibly have both but there's another reason that their argument fails and that is that the law does not require a stay pending another opinion to be based on exactly the same rules in fact it's sufficient if that's if the law is just generally informative so because of that the company's argument fails there was never a requirement dynamix be directly on point to begin with you're allowed to stay a case because it might be informative and there's no doubt it will be informative the supreme court is going to write up an entire decision on what is and isn't an employee even if it's control even if not controlling the federal court reasonably could expect that it might have some useful information there to help it untangle california's employment laws with regard to jurisdiction though i'd focus on why defendant really fails there full stop defendant appellant only wins if the standard is that they have a right to be heard in federal court that is inviolate and that any time they're put out of court on any issue that gives this court jurisdiction for an interlocutory reveal review that is not the law here's what moses h cone actually says now and moses h cone it was an arbitration case hosam the contractor had to fight hospital wants to litigate hospital goes to state court he gets litigation going contractor goes to federal court and files a motion for arbitration instead of ruling on the merits the federal court says i'm just going to stay and let the state court litigation continue well that really ended the federal court proceedings the federal court had one issue which is motion to compel arbitration the state end of the whole proceedings mos all right that's going far enough that gives us a right to review but then it's as though they wrote it to defend its argument and here's what the supreme court said we do not hold that in order becomes final merely because it may have the practical effect of allowing a state court to be the first to rule on a common issue that controlling supreme court precedent strikes at the core of defendants of opponents argument remember appellant has said my client has a right to have this issue decided by a federal form and i said supreme court says no you don't in fact we hold that you don't get into law kotori review even if it has the practical effect of letting a state court decide first mckown also stated was quote we hold only that a state order is final when the sole purpose and the fact of the stay is precisely to surrender jurisdiction of a feather of c and quote and clearly this court was not trying to do that i was wise of having us give them updates every thirty days and we now know for certain that can't be the effect we know that we're getting an opinion in eight weeks and we know that the public case doesn't even have a trial date yet there was no physical way that the thing defendant fears could possibly happen it's gone from speculative to impossible so given that we now know that not only was it not the court's purpose but it cannot be the effect there's no way for this court to establish h cone is not the only case to handle this the ninth circuit has gone on to address it in stanley for example there was a state court proceeding regarding competency and living it comes to the federal court and federal court says no you have to go through the entire state court competency proceeding this court the ninth circuit found that there was no jurisdiction and in doing so it said even though requiring defendant to first proceed with state action will likely involve substantial delay in the case of stanley literally years of delay the state court that does not amount to a refusal to proceed to a disposition on the merits rather it was one in which the district court clearly for season intends that will proceeding will resume and that's the real law in this in order for this court has to have jurisdiction i think it was in yan lockyer they said the court has to be attempting to deep six the litigation which is unable to earn from the  but the answer is that the court only establishes jurisdiction of the federal court is acting to literally deep six the litigation and that's not what happened here there's another problem as well with regard to the issue of terror defendant claims that the entirety of the pending california supreme court case will be irrelevant but they said the opposite in open court defendant's argument hinges on their own counsel's representation that led to this day when counsel said there's this dynamix case that's going to set the standard for cases like these so defendants argument is the judge is guilty of of discretion because it listens to believed and followed the statements of their own counsel now we've already briefed the waiver issue that part's clear but even if you didn't accept that there was waiver on the face of this i've  rule that your colleagues can commit error by listening to the attorneys in front of them and acting on the representations of defendant's counsel that is it you mustn't be stuck in the trap where defendant says here comes dynamics it's going to be important you make your ruling and then six weeks later defendant says i didn't mean it that exact in to be important and therefore you committed abuse of discretion it's not it has the discretion to trust it wouldn't that be an issue counsel wouldn't that last point only be an issue we could reach if we had jurisdiction i agree your honor the the the real starting and end of this case is jurisdiction you're right i cover the merits because i think that someone might want to know but you're absolutely correct the case really starts and ends with the controlling language in most states can write the standard is not put out of court and importantly a litigant does not have a right to have a given decide issue decided in federal court defendant's premise confuses a desire for tactical advantage with a vested right moses h cone made explicitly clear no one has a right to a tactical forum choice neither party does  if the ruling was intended to shut down the litigation that would be different but no one thinks this court was driving to shut down the litigation i think we have your arguments well in hand if you have some thank you ana first of all i'd just like to resolve the issue between the two different standards the column paga case of course doesn't only have a wage or to claim it has a live a code claim as well so that for whatever standard is applied in that case it could deciding and as we know of the call was expressly not deciding something at stake that we should in fact look at is the long line of ninth circuit cases including lucky which sees a party will be effectively out of court if there is a substantial possibility that the issues will be limited by the of the case that was followed by suppose clete and also by blue shield and blue shield against it at stake can be appealed simply because it's too  indefinite which is you know id been months and still continuing which will not automatically be raised when dynamics issues i would say that that in itself provides grounds for jurisdiction next you also we these issues but i also want to make sure you've got the chance to ask questions in the event you didn't hold that this was a final order putting us out of call it it is also a core lateral order because the stay has been conclusively determined the issue here is whether the case is going to continue on the state court is going to determine this important issue of employment classification and of course six capel of evading review because as we discussed when i was up here before all if we have to go back down challenge the stay it's not lifted we're not going to be back here for two years in which case by that point it will all be moot because the state called will of we will suffer the very holman that the state court judge will have decided the employment classification we have lost the right to a j now one thing i also noticed that my friend he did not address at all was the fact that the landis fact is we're not satisfied there was no showing of two plaintiff in proceeding with his own case and in fact that contradicted his very representation to state court when he opposed the stay pending dynamics in that case  as to one of the final points that my colleague made about my comment about these cases it's very clear we put it in the brief the context is i was discussing the column packet case and mentioned how dynamics was going or is was going to influence these cases referring to the column column state court case as soon as the court suggested a stay i immediately on the record said we would like it to be briefed and objected and a party is not  hard i don't really have questions except if i go back to the question judges who are a asked at the outset is would you be better off waiting until dynamics is  in then if the court doesn't lift the stay then then make your if you did that couldn't you file some type of emergency motion  our court rather than wait for two years as you say you're on that's sony something that we could try to do but the ordinary course would suggest that we would be waiting eighteen months to two years for a decision on that and if we were to do that we defectively be out of court on the issue of employment classification ok thank you one final issue i did want to address was a question that your honor asked about what dynamics was going to decide  court is considering the issue referred is quote me a class b certified based on the industrial welfare commission's definitions as construed in martina's and coombes and then in fact as recently as december twenty eighth of twenty c test in new jersey and in our case in george there is no dispute that there is nor will georgia claim so in circumstance you have a california supreme court has decided the test under the  appeal is decided the test on the way georgia and then the california supreme court the very issue listed and the issue that it requested in supplemental briefing is certainly about the will ga how can that case impact the j case to require us to have a eighteen month and ongoing story where my client is at the very real risk of losing its statutary right to a federal jury trial on the issue of employment cost of occasion it's not necessarily about the cases being resolved and finally determined it's about that important classification issue and the risk of co appreciate your time thank you thank you for your arguments in this case mr gray mr cow appreciate your presentations the case of michael george vs mannheim investments in my mannheim remark looking is