want to do is get bogged down in arguing the removal issue and much of my fifteen minutes of arguing that because i strongly suspect i'm going to lose i really want us to move another party still in the case and i just want to make sure i haven't missed something here is is there an order dismissing megan bubbler thirty to my knowledge there is not i do not believe that has been done i removed case and we don't have pelletier stiction to decide that anyway and then there's the question of what do we do when it was if it was improperly removed  like fifteen days have gone by and then within the twenty days following removal but the fact is they did that they they removed very close to twenty eight days i took to the thirty purpose of dismissing that defendant who has not been served with one hundred and eighty days and then either starting over the court brings it back just for argument on the  have happened there's still a question about whether the removal was proper and what i was saying earlier is removal was improper regardless of what the removals that provided or service of parties there still wasn't jurisdiction because there was never original jurisdiction the district court does not have jurisdiction over a case when there is not complete diversity and at the time of the removal there was incomplete diversity in fact there still isn't complete diversity because you have a plaintiff and a defendant from the same who are citizens of the same sta y in that circumstance we've got a problem now the supreme court and caterpillar that that in that circumstance if the case is already disposed of the fargo summary judgment or in that case it was a jury verdict then it's if the court by the time and energy judgment did have jurisdiction there was complete diversity under oklahoma tort law then the remedy would be to send it back to the district court and have the district court send it back to state court this circuit did that was  because if it's raining they ended we have wait if the district court the opportunity to enter a final judgment in this case by dismissing without prejudice served defendant at that point there is diversity and the court has already and if at that point the judge enters a judgment in favor of defendant ross dress for less heard caterpillar we would not send it back to the state court if we agree that the judgment was correctly entered in favor of ross dress for less if however we do what you want and reverse the summary judgment then we would not send it back to the federal court for it to decide the case the trial or whatever further proceedings  conducted at that point we would say this case was improperly removed it was objected to at the time removal of the proper remedy at that point is this then the case back to state court but that's only if we agree with you that summary judgment was improper notice by the district court the district court can dismiss that defendant without prejudice but there was a motion by defended to dismiss their weapons notice by the district court of an intent to dismiss and most importantly there's defect which would preclude recovery by the point of when you get the even beyond that to the point of the court actually observers in it order that in the seven and fifty eight dollars people passed it and did not trip on it but it also shows not filmed us that three people tripped on it in the next seven or eight minutes fortunately two of them  was filed in state court against ross and butler who we've discussed was alleged to be an oklahoma resident status and at no time summons ever been issued for butler she's never been served she was deposed there was never any attempt to serve the district court's order granting or denying the motion to remand does not have any language saying that she was dismissed by operational law rather the court addressed the issues more than a nominal party we're getting kind of back in the fraudulent jointer argument at this point there's been no dismissal of her with or without prejudice is that correct that is correct and that was going to be my next comment that i realize that this leads us right back into your discussion on your court appellate jurisdiction but the court's ruling on the issue of remain and did not say that there was that she was dismissed by operational rather just the fact that she should with that i'm going to address quickly as i can the summary judgment there is no per se rule that the defense of open obvious be determined by jury it's measured by an objective standard and mr travis if it still applies it still applies the case of the talks about would be made clear that it still it was not abrogating that defense the facts in this matter are largely undisputed the store had placed a large blue and white sign out front indicating it was hiring a plaintiff admits she was paying attention and tripped over it and also remains undisputed that ross had no actual or constructive knowledge of the sign and following the rather what plaintiff is trying to do is trying to align this case applying an exception to the open obvious defense and would would even recognize that it was a narrow exception and in a typical case where even if the condition is open and obvious the property owner cases involving foreseeability specifically if it was foreseeable that the plaintiff invitee would be proceeding through the danger in further inside his or her employment would it was a caterer who had to go inside a car dealership and go over it accumulated because i'm so broken sprinklers our case exception doesn't apply i mean we have the standard case where you've got just a sign out front a plaintiff walking out to admit she wasn't paying attention and she trips over it and provided that was undisputed was when she was asked why she didn't see it the only thing she said that was preventing it was she was looking up to see where the entrance was that's the only thing that she could say she wasn't looking down she was looking up she'd also include the testimony suggesting she was a window shopping but again we've got a big blue and white sign that's out front that you know we didn't have any issue and again even if we're talking about a distraction we don't have strict liability i mean there's got to be some reasonable time for the store owner to have notice of the say you know the only time we don't really get into that issue is when you're talking did you argue that causation the negligence absence of negligence issue in district court at the district court resolve that issue on the issue as you say even if it was not even if there was a distraction court i'm just saying that the that the district court just relied on the fact that it was open obvious and that the evidence presented in the case was undisputed that it was open and obvious ok and did you argue in your briefs in this court an alternative grounds for firm it would be absence of negligence i believe we had mentioned the fact that the evidence below had supported that there was no actual or constructive knowledge on behalf of ross and i think being the focus for the most part with the way that the issue had been framed by appellant was dealt with the open obvious and whether they would exception even applies judge improperly jointer fraudulent fraudulent lee joined that was an argument below yes your honor i understand that but i didn't see anything about that in your appellate brief so are you making that argument to this court it was honor it was i thought we had included that in our brief that particularly that because they had brought it up in terms of she you know when you can name a store manager as and as a party an argument was well there's no point there's no allegations that were presented against her that she was acting outside that you know even if we were to get to trial with both of them you couldn't get a double recovery because there's no allegations that she was outside the scope of employment you know just because she can name ross and there's you know case law suggesting they could name the manager but there's not going to be a double recovery i mean all right i just look at your brief again i just i just wanted to to hear whether you are making that that argument about having her being you know you would say she was fraudulent lee joined that that was one of the arguments that we have presented yes to to this court i don't know that it was as clear in the briefing to this court although that argument is included if that makes sense because there was an argument by appellant in their brief in chief that they can name her and we addressed it saying well  that doesn't matter because you proceed to trial it doesn't matter if you concluded her yes there's a case to say says you can't sue a store manager but you know there's no point in this case because you've named  included argument that she was outside the scope of her employment or that she did something individually rather you're just proceeding on the fact that the store the owner had a sign the put a sign out front that they should have warned about all as a result of as a result of the unserved defendant not being dismissed and i was just wondering if you were aware of any case law in our circuit or any other circuit that would say that you still had a final judgment even if you had an answer defendant remaining at the district court level judge carson i am not aware of any such authority in the circu there's a video showing three people over the side is that correct there is there is a video that was submitted as a supplemental appendix it's seven or eight minutes of minutes of footage aside from the appellant plaintiff in this case there were two others there were not people that you know one person just kind of backed and hit it with the foot neither of them fell wasn't anything nobody really stumbled it's not quite as much of an incident as plaintiff might portray i mean there were two other people one of the kind of hit as they were walking one lady was chasing her son or child out and just kind of backed up and hit another one was a guy was walking out was was doing as he approached can you tell where she's looking as she approaches the fall and not from the video not that clear but you say she did say in part one point that she was she was window shopping you seem to say she she was looking for the entrance of bed and then you said something about evidence of window shopping yes during her deposition and the only thing preventing her from seeing the sign was quote me looking up to see where the entrance was that was the only thing that i could say and then you know shortly thereafter during the deposition when she was asked if anything for her from seeing the sign she testified i wasn't looking down i was looking up and in the last little section on that she further testified that she was window shopping at a lot not looking for the ross door as she this is a freestanding store so i she's approaching from what she says as she's approaching from the parking lot that she one was looking up was looking at the scene with the door is located into she says to him that she was window shopping  look at the windows not be a distraction under oklahoma law i think in looking at the video if it's a kind of a good example because the sign is right in the middle of the between doors that open for  ess and doors open for you grass and so as you're approaching it it's not like it was placed in front of an area where people would be window shopping i just don't think the facts of this case really align it with such as a distraction think it's an objective standard and the open obvious tense is an objective standard under oklahoma law and looking out of the project really just as the district court had noted it's open obvious i mean it's a blue and white sign you know right in front of you know in between the doors th slide open for entering and exiting this door i mean it's locked down it's not it's not standing up where you would notice it as well if it was knocked down that's correct a ramp leading up to the store that is painted also that's correct but there's you know and there's at least if you kind of look at the video there's a least five or more  between where the blue ramp in the white stark white and blue sign is which is close very close to the middle of the entrance right again i think if you look at it from the objective standpoint and especially from the video which i know the district court relied heavily on it's you know it's open and obvious i mean it is there is no doubt there's nothing concealed about it visibility is not an issue is that a fair representation of the video that when she walked out she may have been looking to go in the door used for grass and realized her mistake and then looked up over at the door for and looking at the video i think that would be a fair representation i mean we can't step into her mind but think so judge matheson not here this judge heart i do have one question you keep saying open and obvious and that settles that but does it under the law even if it's am i wrong about that judge you are not there are i think that that oklahoma law would support that there would be two exceptions one of which would be the would case and then a distraction but in looking at it objectively in this case i don't think we can get there and i think that's exactly what the district court correctly held that the evidence would not support a claim of distraction that the evidence presented largely uncontroverted evidence in an object and a video that can be applied as the markings court interpretes would versus mercedes benz says even where the invitee was injured by an open obvious condition the landowner may still have a duty to warn or otherwise protect known about it they put the sign they are and the employee who put the sign there was acting under the direction of the store manager and we've decided in our brief to this court of the apart from the not to me not at all judge your honour's concert look at the video which part of the record and make that determination and i suspect sounds like maybe some of you have but no that's