here would be as that you did in the original actions you sought to compel arbitration in the state system instead of removing to the federal system which resulted in the stipulation that was filed in the california system which of course it had to be in order to accomplish dismissal and referenced arbitration and in the stipulation knowledged at a minimum that the san bernardino court could enforce an award if any that resulted from the arbitration and only came into the federal system after the case becomes removeable you can do it until there is an education on the merits right so i saw in new york conventions a little less liberal than the normal removal law on that score but waiver can still occur i mean it is put it in slightly less genteel terms rolling the dice isn't a good idea oh i see whether you roll the dice to my true or not laws that have developed that says that you've you know if she reads are you something interesting courting you're stuck with a stake or you can change that doesn't apply in this case because of the strong other policy of having your national arbitration awards enforced by the federal move the case to the federal court if yes then your permission applies piso you agree that one can waive the right to remove under the new york convention by a form selection call ye but you do not think that you can waive their right to remove by conduct by actions taken in the state system part of removal and i got that right up to a point of a final decision by the decor at that point when the court's ready to rule  a final judgment on the matter i'm sorry that you sort of my summary judgment example to maybe you had waived if you made your motion for summary judgment and the state court denies you motion view that as a you know it's a final decision i mean a final decision kids on the merits so you know it's i i don't think the new york mensch would allow you to you know make a losing an argument that you already licensed a court so it's kind of apparent you're not limited to before trial you are limited before due to cation marriage you can move at any time to a piece of paper that shows your removal right so when we have we have a waiver principles number one action number two in effect the same action t we argued that the issues in state court we made contractual agreement in state court and he wording so on i don't what i don't understand is how the clause can be interpreted reasonably as saying that an award can be enforced only in the san bernardino superior court clearly it is or implies that it can be enforced by that core along with thousands of other courts in the united states all of whom are obliged to give full faith and credit to any award coming out of china and why is that wrong well it was in terms of the parties at the time that th this court and if it was the intent of the parties to contract for that i think it would have said further proceedings will be in this court but it doesn't say that does it doesn't it could be very simply and only in court see i don't understand how the clause can be read as distinguishing the san bernardino superior court from any court clause gives full faith in credit to arbitration in any court the united states right but why does they keep somebody from their moving well then there's then it goes back to the issue of waiver well by why we're here at the moment we're talking about waiver in the form selection created outside the record of the record in the district court doesn't include any evidentiary hearing already declarations with regard to the circumstances as i understand it it's just we've got a copy of the stipulation from that the district court concluded there was agreement reading this is a form selection clause but that's simply based on the stipulation not based on extensive governance is that correct all right so the agreements all we got right and the issue for us is whether this i fact a form selection clause that and if with the raise waves the right to remove and i guess the concern that has been expressed if you're going to say jurisdictions only in the san bernardino of court you'd probably use words like jurisdictions only in the san bernardino superior court you wouldn't say this court has to acknowledge full faith and credit so how do we decide this is a clear waiver of the right to remove this isn't the san bernardino superior court within the united states ye you're talking about the kind yes i am ok well starting back it was originally filed in san bernardino court at that time they filed a motion what do you rely on in support of your burden to show that it was clear and unequivocal not merely defensive i mean we've got to be able to say i look at the record and actually i just don't have much question at all i'm firmly convinced that this was not defensive well they had many times to say we want to have it in the u s district court they could have put it in the  because they constantly had choices that i think they need and they need the choices and then when the choice is that they make they regret the decision this decision the judicial a consideration in the center of the waiver what i'm looking for is a clear statement that says we're going to proceed in state court not federal court we are waving our rights to remove the federal court and as i understand it all that they did and you're right they could have removed federal court first but all that they didn't state court was to seek to get the case in arbitration which doesn't suggest a commitment to state court to meet was not a particularly strong commitment to state court and that's all that they did so returning to the language or a cases and sort of judge reimers question what tells us that that was anything other than a defensive action which they're allowed to take what made that offensive what made it a commitment to state court and you're trying to get out of state arbitration it doesn't seem like you're saying this is the this is the room i want to be in because they're trying to get to a different room nice to well they didn't explicitly put it in our agreement for the intent specifically in he in the stipulation for buying arbitration and they also consistently make the parents is in state court  harry in more verses permanente medical group they said that the party may not experience experiment in state court and that's not proper grounds for the move the question here what happens if i understand you file your actions for yes they make a motion for arbitration right ford says no deal i'm not going to give you arbitration rest a trial court right i guess the question is is there saying the state trial court instead of removing we want you to decide whether this case goes to arbitration or not is that sufficient to waive the right to remove the arbitration question to the district  guess it would go by car that's a waiver of by contract because they're participating in a state court action so that removing it and they're saying that the new york convention apply and they're saying that this is an international arbitration and federal courts they had jurisdiction over that right then when you have them proper for them to bring a removal action in state court from the very beginning they have a federal court decide whether or not an arbitration clause would be other than as a state court system to decide whether to send it to arbitration or not right if in fact they're saying that the new york convention applied in the first place so they're there that's actually saying to the state court you have to not knowledge to look at this and decide whether or not an arbitration clause actually applies in the situation in international arbitration a class so pretty clearly they put that issue to the state very court judge very p state superior court in san bernardino and the state's superior court rules and says no dice cracked now i'm hearing you think if they tried to remove it then the district court they'd certainly be out of luck because they're just trying to get a second ruling on the right does it make a difference that they settled the case with you and got it sent to arbitration and now want to remove it does state court the agreement to arbitrate was approved by the state court and now they're saying that the state  compel are binding arbitration which the court tonight and then we may need room to binding arbitration which seems to me is you know is essentially a new arbitration agreement which sort of struck the clock over again so we didn't pass this