eleven hundred sixty citizens of panama who allege occupational exposure to a pesticide while working in their home country of tampa there are nine defendants including the dow chemical company all of whom are u s citizens has just celebrated its first birthday he was signed into law by the president last february february of two thousand and five kathy marks a shift in the way congress has viewed diversity almost from the moment the team on article three was dry and certainly from the moment the first congress convene after the ratification of the constitution every move made by the courts and by congress has been aimed at limiting diversity jurisdiction we stand here in the two hundredth anniversary of the supreme court announcing its decision in strawbridge which is curtis finding that the first additional act of the language in the first additional acts said that it didn't mean m i would say two things that your are when we end up with this odd dichotomy when we look in try to analyze cap and i describe it as just analyzing at the macro level and the micro level at the macro level we know what congress is trying to mass action itself does that and after the phrase common questions of law in fact or just the definition of mass action also include the except proviso i believe it does include the except proviso i appreciate where your honor is going with that it seems to say that the court's removal jurisdiction puts the question of there are one hundred people and you think it might be five million dollars do you have any other good faith basis to think that some number of those have seventy five thousand dollar what is the obligation on the part of the defendant before removing that issue is not present here for a couple of reasons but i will leave to your question as a practical matter we're not going to see very many hundred two troops and you have to get to you know five million how is it when you get them to federal district court is it to be sorted out whether you have jurisdiction over the plaintiffs his claims are seventy five thousand dollars it can be done a couple of ways obviously the the way that it's often and it is a show cause a winner or a a question to the plaintiffs to stipulate whether they're over seventy five thousand or under seventy five thousand the other way which is one of the remedies we propose is to allow simple discovery simple discovery on the question of the amount in controversy out they kept has created kathy has created a scheme or actions like this when you are going to get worked up and decided in federal court not that some discovery is going to be done in the state court until we certainly amount of controversy is seventy five thousand dollars and then the rest of it in total or traffic creates a scheme where interstate class actions and mass actions are from the get go rule the point worked out to the question of whether or what happens if the number of plaintiffs fall below one hundred in this case what we have is a large group of law much larger than one hundred eleven hundred and sixty pla you supporting that are you saying the same thing would be the case if it were filed a racially in federal court i am supposing that there is something different about this case being reviewed than this thing wasn't the most obvious thing of all we ron are the plaintiffs know how much they are claiming there's no proponent of federal jurisdiction has asserted the mountie the amount of controversy then absolute age legal in possibility that that amount is not in controversy not if they're going to recover something different it is trying to have every decision made in a mass action or class action made in the federal form it is not attempting to create the scheme that your honor suggested a minute ago where go back to sta and start some of this out and then come back and see this if you qualify you know maybe the real question is what is the basis for federal court jurisdiction i mean there's jurisdiction and there's removal and it's a little murky that my question is whether the way this is worded is removable under paragraph two through ten you know as a class action does that in effect sweep then the original jurisdiction subsection two which in effect says you have original jurisdiction of a mass action so long as each person and it's a qualifier i mean and i don't think completely clear because the legislation is and has and other words in a class action each person doesn't have to have seventy five you just need the five million and partial diversity are they saying here you need five million see which ones are and which ones are not so in other words if it's not a class action but it's a mass action meaning well that's a guess another question about whether mass actions also were under rule twenty three or not because they wouldn't have to be i would suggest they are not because they don't otherwise they'd be under number two as a class action so if you don't have to lay out rule twenty three your mass action is is tied to the class action jurisdiction as an underlying original jurisdiction thirteen thirty two is that correct it is you are not a mass action unless you also need sections two through ten of th dismissed and now we have a case that has two people on it and it is it's sitting in federal court under the mass action provision is that your possession that's certainly not our case here is in one part saying i think not very well if those three plaintiffs are those two plaintiffs would remain in federal court but what is really giving us an example is where that seventy five thousand dollar amount in controversy above or below is being determined it is it is very clear that it is the federal district court after removal that makes the determination of which plaintiffs in a mass action are seeking more or less than seventy five thousand dollars and then we come to your honor's question ok we will hear from the other side they please the court howard miller for responding antonio with radio at all i think should resign ask the exact question that the term is this case and that the answer the first answer given by counsel's actually was a concession in the case there is jurisdiction is broader so the only way to interpret thirteen thirty two the eleventh v is that it's a grant of a regional jurisdiction to which fourteen fifty three the removal statute then applies and the question  exact question which determines removal jurisdiction if a case was brought by a plaintiff and there actually are times where plaintiffs prefer to be in federal court the case were brought by a plaintiff which involved two parties that each had three million dollars claims and ninety nine parties that had one thousand dollars claim would that be within the original jurisdiction of the united states district court can work otherwise i mean it could be otherwise for other reasons but for other reasons you could be for other reasons but would it be for that reason and i don't think there's any rational reading of this as a grant of the original jurisdiction that that is the case let me let me just press them a little because i think that if you have to try to reconcile this to say or at least anyway because i can read about five but a way to read it is to say that under eleven nason action is define n too and that's where you get your original jurisdiction because it has to have it was under stiction of the five thousand or partial diversity and then it adds the hundred people with common question so why doesn't why isn't that i decision meaning that that is original jurisdiction it's not the original jurisdiction like we've known it up to last year but it is now original them that the phrase continues except over those plaintiffs that have over seventy five thousand dollars in claims that's why councils instinct in answer to judge resigns question if a case were brought in federal court originally with one hundred fifty parties and only seventy five of them had damages over seventy five thousand dollars with a b original jurisdictions counsel first instinct was correct the answer is none and that's the answer he gave a precise answer no your honor and so the measure of this is the original jurisdiction question and the original jurisdiction question involves not only numbers it also involves the issue of common question of law in fact you know it was an amended notice to removal filed in this case which is very interesting and which frames why  think you proceed remember these miss actions you're dealing with individual clients the next action is and has action of eleven hundred sixty individual clients if each of those parties have brought a separate action and had simply stated as it did in this complaint within the unlimited jurisdiction the damages above the unlimited jurisdiction of the los angeles superior court that individual case would not be removable on this record it just simply simply damages and it's more than twenty five thousand dollars now do we need to know more than that to know that it's mine seventy five thousand pounds well first i'll point out in this case a very important point with regard to the individual plaintiffs their case in this case would not have been removable under any situation regardless of the original jurisdiction because one of the defendants here is an in state california corporation right so that in this particular case the way the appellant would have the rules operate is to change the material rights of that individual party that's one of the reasons we think each party's got to be gauged on its own estimate that that is precisely isn't that one of the reasons that this changes the diversity it changes the diversity and al so many of the cases in the district court that are cited come up in the class action context really is the first in terms of the mass action the real case that i just apologize for diverting from oh and i'm always surprised when when appellate cite the real case in their brief cited the bill case for the truncated proposition that a dozen district courts have shifted the burden without mentioning that the real case quite decisively said that was an error and that the second circuit is this i simply said following that reference that in fact the burden has california does permit them to ask you in some binding fashion what you're asking for right if you say so at some point we're going to know and at that point presumably they can remove it they can file a removal petition but in that remove petition they would not only have to have the seventy five thousand dollars damages they would have to establish under the thirteen thirty two eleven b standard but this was a case that was proposed to be tried jointly on the ground of common questions of law in fact all that happened in this case and even the removal petition states that they cite one paragraph of the complaint for the proposition that this meets the fundamental requirement of joint try under common questions of law in fact a proposal to try these cases jointly or that there are common questions of law and right then i would think over time however this gets sorted out that the courts would suggest that clever pleading wouldn't be able to forestall a court from taking a statement like was in the complaint and divine being that it falls within here for purposes of movement means more than a question of federal pleading of clever pleading your honor every time plaintiffs in personal injury cases like this and i had the unfortunate experience of arguing this to appellate courts every time a class a sought to be certified for personal injuries like these the defendants always argue and prevail that there are no common questions of law in fact different this case also involves several hundred people who signed releases and the releases are issued and each one of those are separate so the fundamental point the federal jurisdiction which is is there if any proposal to try jointly or comic question simply nothing here about that but the important thing is in terms of the seventy five thousand and the fact that it any time in this process if the plaintiffs propose a joint trial and claim comic questionable or fact if the evidence shows the damage is consistent with that in effect removing the one year rule was the savings clause for having to make a decision at this point this is not like the ordinary diversity case where it's now or never and the way these cases are handled that will not list the names of each of the ones who have such and such and you have to and the judge decides you're not going to bifurcate liability and damage and and you have to answer that when they then be able to remove that siphon a little common question dollars then they would have satisfied that last clause thirteen thirty two eleven v i think that's true they would still have to meet the common question of war fact standard in order to remove but simply in terms of the damages if that the amount is but if you are trying to give meaning to these words what does that mean then to say that it's removable i simply think it means that it's within thirty thirty two if it contains that reference to fourteen fifty three but it says for the purposes of this subsection and fourteen fifty three and i read for the purposes of this subsection as meaning the original jurisdiction because thirteen thirty two is an original jurisdiction section removal sections fourteen fifty three and the other sections of follow forty forty one and there's nothing in this that there's nothing in the legislative history there's nothing in any language that indicates that congress intended or didn't create the removal jurisdiction in excess of original jurisdiction so i think it the committee report but i think the real case comments in appropriately in other cases that where there is no ambiguity in the statute i mean this rule and the only things legislative committee what are cited for in the briefs by the way by the thirteen out of eighteen senators is for the burden on the five million dollar number and it can be extrapolated gee if they were shifting the burden on that maybe that comment went to the whole burden but this is not unambiguous that there is no issue about the general rule in federal court and what it is always been for the two hundred years history which is the person asserting jurisdiction has the burden of showing that your state had no ambiguity in the statute congress knew that one thing the legislative committee report demonstrates above all else is that congress intimately know the history of class actions every bit of law involving class actions and they go over endless numbers of cases in a long committee report and with that knowledge the statute was not changed and so we start with the two basic rules original jurisdiction i think there was confusion in the committee report when it talked about that in the removal context and the only way you can finally make what is you know distraction which congress lived up to its normal standards of  clarity the only way you can deal with this is by approaching it as what would be your original jurisdiction and when you approach it as what would be original jurisdiction i get back to the key question being if there were one hundred fifty with only seventy five over seventy five thousand and answer man's action they wanted congress clearly wanted to reform class actions right and then someone said oh these clever plaintiff lawyers what they're going to do is instead of filing under rule twenty three they're going to get the names of ten thousand people and they're going to file this thing so we've got to put in something to prevent disclosure plaintiff lawyers from getting around this control over class actions and that was the intent of the mass action provision and that's why the common question of lore fact is so critical and that alone i think decides this at at this  plaintiffs has an individual case and each of these plaintiffs is entitle to have their case treated as an individual case they had they recognize the problem and are specially saying we don't really want all these people with teeny little claims individually pursuing their claims i think that i think that's right and i think that's why in the end they put in in my mind the only way to look at it was my original jurisdiction in that perspective makes sense if you say if i'm a faction more than one hundred people is filed and filed in federal court  and over a hope of those people all have the seventy five thousand dollars on meet the jurisdictional limit then the federal court has original jurisdiction otherwise as i said talking about plaintiff's lawyers gaming the system it would not be difficult if you had to plaintiffs to find ninety nine others plead under the california rules go into federal court and suddenly that's great i want to be in federal court with my two cases and now i am because i got there by this bootstrap on a bootstrap that simply by alleging i'm in and how i got my two cases in there i got a round of diversity limitations because i use these broader diversity limitations and it's too easy to game on the other side if it's read the way the appellant's are reading thank you  basic statutory interpretation issue now how the hundred person five million dollars interacts with the seventy five thousand dollars jurisdiction and the other is approved probably i mean how do we know whether you've met my over the requirement is and in this instance the same problem exists whether we're talking about one hundred people or one person and terms of how we know even one person has over seventy five thousand dollars for the probe probably exist drafters intended for that proof problem to be solved that is the statute says except that the subject matter jurisdictional only extend to those members of a class action seeking about seventy five at least seventy five thousand dollar a method of proof but we also have to know what the statute means and this i believe the statute means what it says is that as an initial matter you have a threshold a five million dollars amount of controversy and one hundred points and at that juncture as the legislative history says it is the rule district judges responsibility to examine them closely to see which are and which are not seeking at least seventy five thousand dollars thank you we