morning and morning your honor thank you jason blake for appellant being stock innovation inc i'd like to reserve three minutes of my time for a puddle may please the court the issue in this case is whether the district court error when it failed to apply the argue will basis tests to appeal the subject matter stiction challenge the jurisdictional challenge came after the  impact the finale of a judgment in this case a final judgment in this case is the test for now it is whether the post judgement proceeding is collateral to and separate from the decision on the merits but how punitive damages ever be collateral to a class because no matter how the district court ruled on punitive damages the final judgment on the merits which result all the claims as to all the parties the breach of contract claim the  damages that were set specifically with those claims could never be disturbed that's correct but you also have another category of damages that have not been decided by the district court so i don't have a hard time understanding my understanding of collateral would be damages no you are but again that case also was not limited to attorneys fees either in fact that was the cause of the dispute over the circuits in the years following didn't it is what it what it what were the collateral matters in those two cases besides attorneys fees and costs well your honor the those cases dealt with attorneys fees as the collateral matter of the horrid things in those cases are not specifically limited to attorney's fees and fact howard emphasizes the importance of establishing a bright line between final judgments and all the other post judgment proceedings that can occur don't have to occur but that can occur and even provided a non exclusive list of other things besides attorney's fees would you agree that if this was not a final we're i would i would argue that that case came pre calc and that sense how at the supreme court has made it clear that in the interest of of predictability and operational consistency of the federal courts there needs to be a  predict when a final judgment has issued and the test established in that case is whether or not the post doesn't proceed in could alter the order on the merits or moot the order and in this case punitive damages no matter how the district my argument would be that the six circuit cases you're citing came before the supreme court case and how and how it clarified that there was a bright line and that the post just proceeding whatever its context as long as it does not alter or men how talks about a broader picture involving what finale means and how it was was taken up and ruled on by the supreme court to clarify and give the circuit courts guidance on when a final judgment has issued never mended your complaint correct correct so how do we get around how do you get around that isn't that an arguable basis the fact that the pleadings themselves pleads to diversity jurisdiction and it's agreed that there is isn't that an arguable basis i would agree that that is an arguable basis and it is what we're arguing supports one of the many facets that supports the court's arguable basis entered its final judgment disposing of all the claims against all the parties and by the way it's one among many not only did we did we played it they answered it and affirmatively said yesterday versity they didn't raise subject matter jurisdiction as affirmative defense they failed to oppose they failed to raise the subject matter issues or non diversity issues in opposition to the t r o they failed to oppose it in opposition to summary judgment they failed to raise it during any time during the litigation when the court issued the summary judgment order which dispose of all the claims between the parties they failed to file a motion for reconsideration bringing these diversity issues to the court's attention and then they failed to timely appeal on direct appeal the summary judgment issue which they would have had the opportunity to do and for the st time even at that point at that late stage could have brought those facts of this court's attention and one on a direct appeal of the judgment on the merits that really turns on whether punitive damages or collateral that you have any case that's what the district it could have been wrong i mean could have been are only a statement of what the law is well i'm not aware of anything the law that prevents prevents a court from from setting those types of proceedings after judgement or after a final right but that doesn't change the fact that it's still not a final judgment until you've decided damages they mean that's always been my understanding of what a final judgment is and it's our position your honor that that good intention halleck have changed the contours of what a final judgment think everyone can agree based on goodish and how alike at this point there is no question that interest and fees and attorney interest cost and attorney's fees do not impact the final judgment in the same cause for punitive damages and as i arise out of any contractual provision that's buried in the merits of the dispute and halleck the attorney's fees provision at issue there actually did arise out of the very contract that was in dispute it lets the court is is concerned about  any complexity issues involved with a punitive damages term nation the supreme court howard said look we understand that fees and determining these sorts of posters proceedings can be complicated but that doesn't impact the finale either and this court  in the context of j p morgan the we had a very complex fees post judgment proceeding that went on for years so complexity isn't really a factor either of the intricacies of the post just proceeding should impact the  may please the court counsel technology i'll see this case obviously presents a couple of questions we asked the court to affirm the decision of the lower court in granting as our g technologies know there was a dispute and i would be tane if you read it was still is a dispute but there was a dispute about the amount there was i believe if i recall correctly the last payments that was to be made in this contract was i think the beanstalks position is was owed one hundred and nine thousand dollars as our g technologies position was that it was something different the neighborhood of eighteen dollars to twenty thousand dollars should be noted but that amount though the beanstalk believes the amount of final payment to be the one hundred thousand dollars has been sitting in escrow with mr blake's law firm for over a year now so it's not it  really a dispute over whether or not the money was there was a small dispute over how much was owed and every listen the the bottom line was the original dispute arose because my client  actually originally my motion to the corner originally on this issue actually covered both i found a total b six in a sixty four dollars motion automatically the briefing after it was all over with and the district answered and said there was subject matter jurisdiction and you never meant it your answer doesn't that a provide an arguable basis for subject matter jurisdiction i don't believe that it does i think there's a couple of factors that are involved in that number one is that i think that as we all know subject matter jersey stiction is not label i think if we start entering into in arena where the arguable basis test or whatever argument you want to make goes to a place where individual still looking at the same factors from the perspective of you know do we have citizens of different states there's always some is a case of diversity jurisdiction there is no rob it was a contract case there's no federal question jurisdiction here so we're look at it twenty eight of massachusetts that alone would defeat diversity jurisdiction and interesting enough i mean those things you know obviously jurisdiction is to be reviewed nobody raised that question one hundred percent sure but that i can tell you from my perspective a little bit of background on that i entered my appearance in this case in december of two thousand and eighteen the motion for summary judgment  that the sixty before motion asked to overturn it it was entered in september two thousand and eighteen i don't have a clearer picture on why that issue had never been raise prior what i can tell you is that when i was asked to take a look at this and i looked at it you know as i always do if federal court case i look at issues o because as we all know the federal courts are courts of limited as we reviewed dad and analyze that you know peek came obvious to me that subject matter jurisdiction did not exist at the time the complaint was filed which of course is the time of it's not that i think anything is well necessarily that the arguable basis test what concerns me is two things one of the application of the or your basis toast to these facts because i think it creates a deeper woosh an of subject matter jurisdiction we're talking about a set of facts or circumstances where if you go back to the time the filing a complaint you can create a set of facts or look at a set of facts that need to be interpreted where one could conclude that there actually were a subject matter jurisdiction from the very beginning there didn't it deborah existed because of the fact that technology has members that are citizens of massachusetts so in my view the facts of this case provide a very good opportunity to expand your doctrine because i think it takes us down a path there is these just not the right direction to go but look at it from this perspective correction in justice game right after several years you got in the case ran down as a problem i suspect that's a possibility yes possibility it's a fact conclusion at the end of the day looking at a register of the members of this i'll see and knowing the principal place of business of the place i mean it was a fairly simple argument for me to make at that point in time which obviously we chose to do by filing the motion that i was talking to judge earlier in terms of i actually originally approached this kind of in a bold suspenders from if i replay so there was no ruling based on twelve it was not ok there was not so i would i'm happy to go back and look at that again but i'm pretty confident that the ruling came out of the district court under rule sixty know united students aid for yes it's say is quote federal courts considering rule sixty before motions that us or judgment effect generally have reserved relief only for the exceptional case in which the court that render judgment lacked even arguable basis for jurisdiction right well as normal basis for jurisdiction near there no i don't think so because in my view and ordered you were basis let's take a look at the facts of what was in existence at the moment in time that this complaint was filed those members of the clients all see that are citizens of massachusetts or citizens of massachusetts if we're talking about a situation and i'm trying to come up with with an example that makes sense but let's know these individuals that were citizens of massachusetts you know there was actually an argument about whether or not they were citizens of massachusetts maybe they have two homes and they have a massachusetts driver's license but they really live in a home in florida and their kids go to school in florida and they're registered to vote in florida and there's some confusion over that and there's a debate in an argument over whether or not they're citizens of one state or the other and a clear rules in favor one way or the other i think you could make an argument that point truth of matter is here there's only one fact in play and that is this parents were citizens of massachusetts there's been no evidence to refute that and so therefore i think that it's hard to make the statement there is an arguable basis for jurisdiction just simply based on the fact that my client answer agreed there was and it wasn't raised again because i think been your st thing them to waive were able in to me i go back to that subject matter jurisdiction is not we will work and everything that is discussed will to the answer and to my client not filing a motion to this effect sooner than they did all points then waiving subject matters i want to get back to whether or not there was a final judgment or yes so the order said the court was reserving judgment on attorneys fees cost and punitive damages that right through force or subsequently any order issued by the court as to any of those categories those not been yet ok so the answer is there has not been any order there was no order entered regarding attorney's fees though because if i recall correctly there is still outstanding briefing add another layer to this these companies are a florida will see a massachusetts slash delaware corporation they were doing business relative to the hamilton county educational service center here in cincinnati and i think that they were the contract between the two parties applies to the law again tested my memory i'm pretty confident that big stock has actually filed a motion asking for those damages my client has not responded because when i got in the case and i looked at the case my reaction was road the i got summary judgment summary judgment with the punitive damages be decided before a jury or before the court i think in this case it would have been decided before the court ok and you're and you believe that there is a motion pending here are counsel for us or g misconstrues the group basis tested if we were to adopt the rule he's proposing which is to take the facts that as we know now as we now know them and apply them to what the court did in the past that would swallow the argument bases test and he said that application of the test to this circumstance of this case would drastically expand the rule that's simply not true the the best way to illustrate a situation almost identical to this one jurisdiction finding that the district court's assertion of jurisdiction easily satisfy the article basis test where the litigant failed to raise the issue during the litigation lost on the merits and then failed to raise the jurisdictional issue on appeal based on that parrot applied the ardent basis test denied the jurisdictional challenge and parents not alone and that analysis either in fact circuit that's ever looked at a case where a little utterly fail given the full circuit and there's no question but i will basis test applies in this circumstance judge perry you asked how many years it's a good question the litigation of this matter was a about a year and a half between relinquishment a relinquishment of a known right by a party this is a decision by a court at the time would assert its jurisdiction and that decision going back to still be gotten the implicit or explicit or otherwise is a determination of the court