maybe it's us in any event the next matter for argument is down versus travelers property casualty company of america may please the court my name is joseph kernan i represent the pellant travelers like to reserve five minutes for a bottle thank you members of the panel seven years ago in the federico vs home depot case this court outlined a test for ca which based on the allegations in the complaint reasonable inferences from those allegations in the clip in the clickable law in those circumstances what the lower court should have done is applied to frederico legal certainty test which have factual findings or uncontested facts and hear what's alleged is it is a range anything at a delta given the five thousand to twenty five thousand of hundreds so we think a fair reading of the damages sought against insurance carriers when you're attempting to reform over two hundred policies to have available up to twenty thousand dollars each that is the amount of risk is  issue for this insurance well let's let's start with first things which is the complex and as you indicate with respect to the numerosity issue here the pleading itself explicitly refers to hundreds and speaking only for myself it's difficult to conceive semantically of any other construction that can be reached other than that it means at least two hundred correct but beyond that i mean we're talking about a cafe case we're going to get a class action con that the aggregation that is necessarily a part of a class action and what has been pleaded here in addition to the hundreds have a class representative who has been damaged or a specific amount in this particular acts that this particular acts but we have nothing more than that from the face of the complaint how is the court doing anything other than speculate as to what that aggregated claim amounts to even with troubled damages we're all we have is this the civic allegation of how this class represented has been damaged in a particular amount of speculation is not necessar did that figure come that came from eighty five hundred dollars would be forty two percent of twenty thousand and forty two percent i did maybe i did wrong about it do the math on it hundred if each of class action and because this is a class representative the typical ality requirement might suggest that all the claims should be within a reasonable range of the amount that she has  sought by the name plate for half of two hundred other class members at least and frankly we think it's many more than that if the definition of hundreds means what we think it means but it's not only it's set up to that and we asked you to be prepared today to talk about the the policy but to the actual damages that the particular insurer would claim in that particular case or underlying case for mr hoffa got sued for at least twenty five hundred dollars for someone who was injured on his property even sued liberty mutual for insurance coverage and he let at least victim is lower in the court had not the faintest idea of the value of the underlying claim in that case this case is different in this particular case the this point is suing for the policy that it's not a separate case where plaintiff assuming nothing to do with the insurance policy in coffin the insurance company raise the issue of the policy limit as an argument to try to attain jurisdiction it's not something that travel is raised it was raised in the first i by judah and with travellers did is rely only on the allegations that point pointed out they're seeking up to twenty thousand dollars and he quickly did much much more conservative math so that just underscore that cannot be said to a legal certainty that the claimant issue is not at least five million dollars and we use that a much lower number we still believe it it's appropriate in the insurance coverage case use that larger number is not necessary here thirty years after col manzi versus state park where the court did agree that the four policy limit was the amount of controversy was an open any claim like we have here for you i am benefits up to fifteen thousand dollars a plaintiff had never demanded less than ten thousand dollars that was the jurisdictional limit and the court said because the policy limit was fifteen thousand dollars the case could result in damages more than ten thousand dollars and therefore the jurisdictional now just met mr kerr and let me ask you a very practical question as opposed to a question about a case why didn't have worse confronted by what appears to be in the first instance a saying that each class members entitle to twenty five thousand dollars if they use the phrase up to which is someone indifferent but class there be available to twenty thousand dollars for the members of the class ranger the way that judo on was injured and will probably dealing with less than five million though with all due respect it's not appropriate to assume th intelligent you of the case and that's exactly what travers attempted to do it has done and that's why we as we quickly went downward from the twenty thousand per with our calculations in our submission to score and opposition to the motion if you're not constrained by that thirty day and thirty days even have referenced would you position then to put the facts before the district court for the district court to make a determination as to the jurisdictional now if we were trying to do that we would certainly you know continue by by jude on to this court they they refer only to the removal petition clearly as the court has referenced at this argument in response to the removal we filed a motion to remain and paragraphs eleven twelve thirteen fourteen we disputed the facts relied on for remov limited coverage is for first party medical benefit coverage on policies issued to commercial carriers for vehicles having less than sixteen seats they hands buses with less than sixteen seats so what we're looking at this in this action case our insurance policies issued by travelers to common carriers providing coverage for vehicles with less than sixteen seats with those facts in mind a class of one hundred fifty or two hundred is not an unruly it's really the master of your complaint if you mean a hundred and fifty you can lead a hundred or your honor and we agree we certainly you know we certainly we don't feel that the two hundred is dispositive but what we payment of claims for the class representative francine juga and attaches exhibit c are her outstanding medical expenses above and beyond the five thousand dollars that were paid but have been in asking for up to twenty five thousand for we use that amount as the twenty thousand delta as as the amount that we're were considering for jurisdictional purposes and your honor the twenty five thousand is statutorily mandated the pennsylvania motor vehicle financial responsibility law requires that common carriers with vehicles arms are seats of less than sixteen or provide up to twenty five thousand otherwise you only have to provide five thousand doesn't require you to seek that in them no your honor and in fact are you know your honor you're representation that the state courts can take cognizance of that you under no circumstances can your class recover more than five million dollars including actual damages trouble janitors and attorneys well your honor i believe it would be unlikely that it would exceed  her time and pardon me but there is a little bit of this ingenuity involved on the part of counsel often on both sides cases somebody wants the case one place and somebody wants another and all of a sudden well panel to dispose of this case if we knew that your position was it just ain't going to meet five million dollars and i'm prepared to tell you here's your honor i can certainly set forth a factual basis for why i believe it's unlikely that it will never reach that five million dollar threshold but you're not prepared to amend the complaint to minor to include that perhaps if we completed discovery we don't know the size of the class don't want to be in federal court and you're not willing to stoop to police you are not willing to really concerned about the practicalities of this i mean there's a lot of interesting law here i suppose we could write a presidential opinion that maybe makes a little law but all i've heard from you in opposing counsel with respect is is uncertainty  and i don't understand why this case wasn't handled the way so many cases that judge smith and i were involved in he certainly a lot more than i was he's old a lot but you know this was a very binary thing you command one side said it's worth more than seventy five thousand and the other side says it's less and the party that was desperate to go into a court would sign a simple remit or form conceding that it was worth less than seventy five thousand and there was certainty there was predictability i saw great virtue in that in here i see a lack of virtue i'm not saying you know house was behaving improperly but this lack of certainty and clarity strikes me as a disservice to to the system and why should we just remain in this case and and and urge the trial court to put you both to the test because as just pointed out you know nothing but but but generous of the court i don't believe anyone is trying to hide the ball or trick anyone clearly has set forth in our papers and for the four months of this litigation prather's has been the sole possession of the number of potential class members and the number of potential cases you information indicated that discovery would be necessary it takes it takes one into the merits of the geisha and that that does not take us back to the concept of amount in controversy how is it a workable who'll for the future for class action cases if we are to say that by pleading up to a certain amount even if it's up to twenty million dollars in up to is in the request for declaratory reliefs the request seeking a to say that pursuant to the pennsylvania motor vehicle financial responsibility law that requires twenty five thousand dollars and first party medical benefits for common carriers we request that up to twenty five thousand dollars is in i believe it's the where for clause d and c we're asking for declaratory relief where we seek payment of first party benefits it requests the amount of first party benefits and in our complaint in paragraph thirty we set forth the amount of outstanding medical a first party medical benefits were we're not i think this would be a very different situation if in our where for cause we requested up to trying five thousand dollars for each and every class member what we've requested is a release is twofold number one we need a declaration that the policy issued by travelers provides twenty five thousand dollars pursuant to pence up to twenty five thousand the amount of the actual claims and the case law reference that talks about actual claims that since we're dealing with it says we're dealing with a request for a declaratory judgment what's at issue is the either do or don't have the exposure for twenty five thousand or whatever the actual damages may come in that might only use that is not a much more workable clear test well equipped to be administered in this case or in future cases your honor we would believe that the language in  excess of the jurisdictional limit well in here i mean if we multiply two hundred by up to twenty five thousand then we get to four million dollars we get the differences twenty thousand is judge cross or else we're four million already before we even talk about to to do the following ascertain the extent practicable how many people are in the punitive class and what the the potential damages would not be the prudent thing to do you're right but that's certainly the printing  do i believe that the court i would just i would just posit that for now four months are we raise our objection some four months ago arguing that the the the defendants position at twenty thousand dollars that the the total available excess first party benefits coverage and the two hundred people we didn't think they had a solid foundation and in those four months the defendant who is in complete control of all of this information has by its own admission not moved forward to to do that discovery and not move forward their counsel said when he was up here if he thought he had to do that he would have moved forward i'm not sure what prevented him from doing that previously and i'm not sure you know what why my client should be you know her access to a state court should be denied by the federal complaint filed tomorrow that says in this personal injury action where the parties are from disparate states the the plaintiff probably requests more than seventy five thousand dollars and you're saying that federal the complaint plead six years in trouble there with his and it doesn't say there's more than seventy five thousand dollars it's probably or possibly you think that's enough whether they're or not they say more than seventy five thousand dollars not dispositive would not contest context where they're seeking to reform hundreds of insurance policies e mail controversy and drug cross you're exactly right this is an insurance company hill hilly versus massachusetts mutual eastern district  pennsylvania where the validity of an insurance contract is an issue the full value of the contract including any future payments that may possibly become payable to the insured may be taken into account computing the amount of controversy make no mistake there as in the five given that you maurice alleging entitlement to as much as two hundred thousand dollars in under insured benefits that those are cafe cases it's not a cafe case it's an individual case but the point is we look at what the number is that each pla all right what is it up to twenty thousand dollars per class and what we have to clean the revenue let's assume one third of that and that's what we're trying to do in order to keep us away from the fringes we're assuming that he's glad we could even get into the fringes because we're in the clouds we why not send it back same question that i asked your adversary because we ought not there's more work to be done here and it's pretty simple you go back e q look at your computer system how many vehicles fit the profile that miss tie just described do the math for the present a little discovery to the trial judge then the trial judge can can make a more certain determination as far as i can tell from reading this record the trial judge punish you for not doing your work but why should we send it back and make you do your work that way we know exactly what whether you should be in federal or state court we think the law in this district in the circuit is clear that when the well pled allegations indicates reasonable intelligent review by the defendant you want to hear wrong on the what if we disagree well that's that's what i think what this is about whether whether a reasonable intelligent review of the allegations in the complaint inferences from the clickable law we can say that aggregate up to five million dollars and it's not an answer i don't think with all due respect to suggest the plaintiff stipulate that she is seeking less than that under the recent u s supreme court case standard fire i don't was seeking jurisdiction that had had the burden to prove jurisdictional not by proponents had done so it remanded with instructions to dismiss what about this situation it is there some lack of clarity in our law or some other justification you would put forward so that if we don't agree with you on the merits that we should be reminding for you to have what's in effect the second bite at the different types of tissues and pointing out that home depot relied on the allegations in its removal titian just like travelers pointing out that the plaintiff is not submitted any new facts they played their cards close to the so since you've used up all of your time i suggest you to clarify my misapprehension or you can stand on that as if if were directed to take a second you know directed i'm asking you might be damaged and you're not admitting liability me right by listing with jude ons of the world and listing their their putative claims as twenty five hundred or eleven hundred or twelve thousand in no way are you missing admitting that there's a period of plaintiff out there with a punitive claim and we know that you think that you're not liable rider you're resisting that enterprise so much well anyways i don't want to get into business right if you tell me we have important business reasons for not getting into of the case which at least from my perspective could be more useful and was all in it rather than dealing with the legal aspects of it if we don't win under frederico and