morning may please the court then teenie from the front of letter memo sent on behalf of defendant and appellant bring some security question for the court this morning is whether the district court of use its discretion in granting the plaintiff's leave to a abuse of discretion right right or be happy to address the jurisdictional issue first the question is exactly as you have phrased it and it's raised by the plaintiffs in terms of an argument that this appeal is barred by section four hundred forty seven  indicates that although the literal language of the party would indicate that all orders from any cases are unappealable that the literal language does not apply that in fact the  jurisdiction in this case there clearly was proper removal and clearly was subject matter jurisdiction we properly remove this case based on diversity jurisdiction there was complete complete diversity at the time of removal there is no question about the  controversy being satisfied so clearly this was a case where jurisdiction was appropriate and removal procedures were properly followed as such based on hoth and other previous  papers which draws that distinction that where you have a policeman or a decision made by the district court that is analytically distinct from the rematch itself but that results in a rematch and that appeal of that plaintiffs in asking the court at the same time grant the amendment of the non diverse parties and remand so that address is i believe the the issue of  set out in the ninth circuit primarily in the desert empire bank case which properly recognized that when congress allow it for move all jurisdiction that it granted a valuable right to defendants and that once a defendant has avail itself of the right to the federal form properly under the removal jurisdiction statute that plaintive should not be able to come in and solely for strategic purposes  can lead to only one reasonable conclusion and that is that the motive of the plaintiffs in seeking to add these non diverse defendants was to destroy diversity and obtain a remained to state court and we believe that is so for three reasons first the timing relief from the corporate defendant the claims are claims of failure to pay wages based on the state wage in our statutes twenty days after we remove the case plaintiffs advantage to them in adding these into an individual defendants the theories in which they've sued the individual defendants are that the individual defendants were acting as managing agents of the corporation and therefore they should also be liable in addition to the matter not me and i can likely recall my little personal injury practice we would sometimes leave out the truck driver and only sue the corporate to stand down because we didn't want the jury to speak for craft i was going to have to pay the judgment so there's good reason not to include individuals and i just wonder if indeed there are good reasons not to include individual defendants which i presume were the reasons why plaintiffs initially left them out of the case which brings me to what the third point of  that that they have something to do with it how could you know that you know it might have something to do with evidence that they wanted to get in and the only way they would be able to get the evidence and would be if you know i mean how would a court ever know i mean you're saying well we have to decide that these are bad hearing you say this i could think that someone at going away or might have certain tactical they might have reasons of how they're going to present their evidence and we're not talking about parties we're not talking about you know joining reasonable mind could conclude other than an intent to defeat diversity which is that in the briefing on the motion to remain and the plaintiffs never set forth are never articulated a statement of what benefit they got in pursuing that litigation from adding these individual defendants as parties the only statement they ever made was they did it because they wanted to have full relief for their state law claims but the evidence was undisputed that they could obtain full relief from the corporate defendant they never even stated in a hypothetical fashion that having these parties as plaintiffs would assist them in their discovery or assist them in their preparation of evidence at trial circuit in the desert empire bank recognized the fact that we properly got to the federal form is a valuable right the congress of the stowed on parties who properly avail themselves of that and as such when the plaintiffs come in and seek to obtain arena and through this kind of mechanism the court is required to look with a callous eye at those motives and make that judgment of what the motives of the plaintiffs were good morning mate please the court my name is martin garfunkel and i represent the plaintiffs first on the jurisdictional issue we think that's a insurmountable burden for the defendants in this case the u s supreme court has held that under for twenty eight u s c fourteen forty seven d there is no appellate review of any order remanding a case the state court as long as the remain and order is authorized by a federal statute this is stated in a number of cases  specifically in that exception the exception is where it's not authorized by statute and all of the cases cited by defendant involve cases where there was a remain and under some non statutory basis in fact the primary case the ninth circuit case they rely on this case called teleport investors where the court remained under the reform selection clause in a contract and what the court said there in the one circuit said is that in these circuit case relied on by the defendant was enough stench in case in fact the primary the leading supreme court case on it is firm tron from one nine hundred seventy six and in that case the district court remained it based on a heavy docket and  supreme court case five sixteen u s one twenty four in which there was an issue of whether you could review a green man from a bankruptcy court proceeding and it was statutorily based but not in the general removal statue fourteen forty seven it was under fourteen fifty two twenty eight u s c fourteen fifty two the supreme court said section fourteen forty seven b applies not only to remain under orders made institutes removed under the general  removal statute but the orders of re man made in cases removed under any other statutes as well so the supreme court said not that doesn't have to be a remount just based on fourteen forty seven but it has to be based a remained based on a statute in which case fourteen forty seven be absolutely applies if you have a reading and based on something other than a statute then you get to his other issues collateral order and those sorts of doctrines over appellate jurisdiction and federal state jurisdiction and never getting to the merits and this isn't a good example of such a case where the complaint was filed to fail of two thousand and two and here we are more than here year and a half order because i've been thinking in terms of jurisdiction and if we just had the one order that was being appealed to remain and order we probably would and we had non verse parties we have no difficulty saying this is a non  then to answer your opponent's argument you say it's really not the order permitting amendment that's being appealed independently but even if it were a final order well and actually the way we come to that what has been your argument i don't know but that's exactly takes me to the argument which is it comes back to fourteen forty seven he isn't which is the we made a motion under fourteen forty seven easy to amend to do a number of things we added nine diverse defendants we also added a plaintive and we added a cause of action and that was brought under fourteen forty seven easy which and the order that is being appealed is an order that allows us to amend the complaint to do these things including adding the non diverse defendants and remaining it's a single order and one of the arguments the defendant has as well and the supreme court authority they say fourteen forty seven d only applies to remains brought  florida wire and the fourth circuit in washington sanitation both recognize that when you have a amount an order adding on to first defendant and remaining to state court under fourteen forty seven  get there but if we do one of the kit the case they rely on principle or for that is a fifth circuit case called only ak and only ak had subtly different facts in terms of how the parties got added they were actually john doe defendants there was a motion to amend  congress intended the bar in fourteen forty seven d to turn an otherwise known collateral on reviewable interlocutory order into a collateral appealable order we conclude this amendment does not meet the requirements of the third klunk of the clatter order exception to conclude otherwise would recreate an exception that swallows the rule because of granting a motion to men and then that destroys diversity fell within the collateral order doctrine the very purpose of section fourteen forty seven d would be frustrated if not destroyed so in other words you don't get it and run around fourteen forty seventy by raising the collateral order doctoring and  have discretion and it's an abuse of discretion standard that has to be applied and we don't think the discretion was abused frank says the so motive for plaintive was to detroit diversity and what they ignore is what the case it's a balancing test mode it is one of the factors but it's not the only factor even if you can find them both and what we have here are valid indisputably valid causes of action against these managers involving relies on where of course it is likely to find improper motive they almost always look to the impropriety of the claim they say well this isn't a very strong claim anyway so we're going to win further in a proper motive you