good morning your honour's marion kelly and together with dennis chong we represent the plaintiff below in this title seven action jacqueline rice in a nutshell the issue before the court this morning is did the state court lose jurisdiction over miss rice's title seven action before the defendants removed it to federal court such that it arrived that it was dead on arrival in the district court we submit that the answer to that question is resoundingly no the state court did not lose jurisdiction and indeed there is nothing in the state court record no order no notation not even a motion from the defense suggesting that the state had lost jurisdiction defendant's challenge to miss rice's case filed in the federal district court relies on for ginia as rule of procedure three cohen five which rule of procedure was codified at eight point zero one two seventy five one but in the federal district court the federal rules of civil procedure apply and federal law applies as the united states supreme court explained in the case of green ink use which we cited in our reply brief so federal clear that in the federal district court the federal rules of civil procedure apply and the grinning goose case cites that and this says that federal law and federal civil procedure apply after removal accordingly for defendants to move based on state procedure is inappropriate they really have waived their opportunity to seek dismissal in the federal court based on a state rule of procedure you don't mean to suggest to you that post removal a defendant couldn't move for insufficient process or insufficiency of service a process you they can move for that but it it then in that instance if the district court finds that there was deficient service the plaintiff would have a right under twenty eight u s c fourteen forty eight them of course so my point is simply that i guess i'm focused on what i regard as something of an overbroad statement by you just to the effect as i understand it that once removal occurs state rules of procedure are irrelevant because in the case that i put to you whether there was effective service would be determined under state rules for service of process right that's true your honor but but to apply the federal for the federal court to apply the the virginia rules of procedure as was done in this case i think is is what i'm taking issue with ok well i'm trying to write understand the difference between what you agree to namely that a challenge to sufficiency of service post removal would lie for defendant relying on state law as opposed to what you contend here if i understand it is that once the case was removed again  don't mean to suggest you absolutely mean this but it's almost like you're saying rules under the under virginia practice are irrelevant i don't think they're irrelevant you know i don't think you're really saying that they're not entirely irrelevant your a second when you say lacked jurisdiction i take it you're using that term as a shorthand for this rather curious term of jurisprudential  other words there was there was nothing there was nothing there to remove in effect that that's what the defense is arguing that the virginia court last jurisdiction ok and that could only be well let us jurisdiction again i'm sorry you didn't lose jurisdiction no sir they did not always have jurisdiction over this kind of action question is whether the case came to an end isn't that really the question but whether the commonwealth lost jurisdiction whether the case ended well there's no question the case didn't end the state court speaks for itself that the joint appendix on page eight in its final order when it says that this case is quote removed and order is dated september nineteenth and it is the final order noticing that the notice of removal had been filed so it is the final word of the state court that o the cause of the removal and only because of the the the date of remove all was september thirteenth it arrived in the year twenty twelve and i think judge davis you're really hitting on this there's nothing in the record to suggest that the virginia state court lost jurisdiction the court never even squeak the possibility of that the defense we submit to deprive us from among other things the opportunity to file a new non student and the opportunity to have a hearing had we so chosen where in which the state court would have exercise discretion they the worst possible situation for the plaintiff in the state court is the defense would make a motion to dismiss based on a ferry to serve within one year of the discretion is based upon a due diligence on your part  i don't understand there to be any kind of claim that you diligence was axis it is not black based just on due diligence in the fry case your honor squarely addresses that in that case the plaintiff waited until the three hundred sixty fifth day to appear at the courthouse and request a summons finding the courthouse closed and even though there was no showing at all from that plaintiff that there was a single attempt before the three hundred sixty fifth day the virginia supreme court read the one year service rule in conjunction with the computation of time and said the plaintiff should have the three hundred sixty five after the court vacated after the court enter the non suit but before twenty one days had expired defense counsel called and made an argument to me that were we to refile our statute of limitations would be we had only a few days left so we vacated and upon consideration standing here today that was probably unnecessary it was unnecessary because we could could nonstate but in the heat of  decided that it was the best treaty chicle moon maneuver because we wanted to have an opportunity to look at the defendant's argument a little bit more and we still have the answer we haven't really lost anything so  you as i'm explaining the court would have lost jurisdiction within twenty one days we wanted to vacate the non so so that we could have a little time to do some more research upon further reflection it was unnecessary we could have non student and refiled but in what precise way cleaner procedure it would have been and i submit that that's exactly why the defendant removed us because they didn't want us to be able to do that i mean we were very i think judge davis is right on the point i don't think state law becomes irrelevant at this point because the whole procedural question was was born and growing to maturity i think it was sure that federal rules of of service of process this takeover i think that that the procedural history of the case in state court can't be ignored i think the federal rules do take over and but they too for many purposes they would a summary judgment they would for a good many purposes but here the whole case was litigated extensively under state procedure and state law and you know that's different from the way the federal rules of evidence get yan and it's different from the way a summary judgment motion is decided and everything this case for whatever reason  was litigated under state rules of procedure and i don't think we're just free to ignore that because that's what you have governed by the time we would absolutely have been governed by state procedures had we stayed in state court i think to answer what i'm hearing as your question judge of all concerned is was it judge lee's job to sit in the shoes of a state court and decide what a state court would have done and our answer is no not to the extent there was any discretion afforded a state judge all if you had its case i'm so glad to hear you say that could you elaborate because that's exactly my question i think you agreed earlier that a state judge would have had a broad discretion whether to dismiss your case or not yes with or without prejudice to the ex that virginia recognizes any such  and yet you just said to judge wilkinson if i'm following you the judge lee though he sits as a state judge on this motion to dismiss doesn't have the discretion that the state judge would have had and i find that very difficult to comprehend i think if i correctly well i have an account of your position here i think in interpret ing and looking applicability of state procedural rules judge lee had the job of deciding whether it was mandatory whether there was no circumstance by which miss rice error and we applied a noble standard of review right and he put but if he if he understood we were persuaded that he understood that he had t discretion whether to to dismiss the case or keep the case in federal court then is do you agree that our standard of review is abuse of discretion no and why not what so so judge lee has less discretion to dismiss the case that a state judge would have had under exactly the same circumstance how can that be because he's well first of all judge lee found that dismissal was mandatory so we'll put that to one side for a because he's in federal court and i think i think judge lee in some parts of his opinion he he said he has to find out whether this state court had to dismiss the case and he found that there there's discretion on the part of the state court judge to find the due diligence but i understand if you haven't raised a due diligence claim here you haven't said something like well we really tried to find these defendants we couldn't exactly starve them or we had problems finding out the address of this all of that person or that we made an  attempt but it didn't work out there was no there was no claim along that you've got to ask you know what would the discretion of hinge on it and normally when you have these with with respect t excusable neglect standard and but it wasn't and that's what this discretion is when you fail to be the time deadline is there some reason but the only reason that you've given us was that the defense counsel said something and you sort of took their word for it and that would have afforded a state judge all the district court in this case the region and the fry case all stand for the proposition that the state court in virginia has discretion to consider factors other than just due diligence that there has to be a hearing to consider all of the facts and circumstances and i submit that it is within the equitable power of the state court in virginia to consider all of what happened here including the seventeen days where the plaintiff by definition could not have obtained a summons and would have been impossible to serve the defendant so that the state court could balance the policies and objectives of the one year service rule with the nonsuch statute and the computation of time statute to say well under the facts here it would be unfair and inappropriate and an absurd conclusion like the frye case found to allow the plaintiffs to perfect service as we did as the defense mister kelly i have one maybe two issues like to focus on and in my time tonight if you run really quick question i really want to ask miss kelly if not i'm talking to counsel sorry if one of her points is that they couldn't obtain a summons during the period of the correct my question and she can answer later if she'd obtain the summons say a week before the nonce would that argument remain the same does the summons abate or die with the folly of a non suit or that we could use could you serve a defendant do a period of non suit if you argument falls back on does the appellant have or should have been afforded one hundred twenty days under fourteen forty eight to make proper service timely service as in an original case and in the district court and that really doesn't matter anymore because the appellant didn't that was never preserved for argument here because the apollo never did try to serve well i don't know if they tried and didn't find us but certainly original service has not been made during that hundred twenty day period there 's no way to fix that unless there's no service been made on the route there's certainly no federal statute that allows for an additional time outside of one hundred twenty days the question  there's no dispute that it's outside of a calendar year i mean there's absolutely none now that helen argues that it should be told for various reasons which i'll leave to our briefing unless you have questions but  what is it retired as a lawyer or times as long as the federal law hundred twenty days is three months that's four times as long and it's not hard thing to do not only was it not hard once the point the plaintiff below decided to serve us they did it in one day one they they came to us in one day and we are resident agents were not available the next day when our residen agents were available they made service but the district court didn't dismiss the case on the basis of one hundred twenty one twenty big federal steps not because in fact there's been coincidence as of the day district court actually heard second set of case was already i call it a letter but a dead case when we got here that seems it just the court is clearly saying that i'm not looking at whether or not i should look at did i believe he said it was dead so but if that's not correct do is it will it's anticipatory it's dead in the sense that they were genya judge who would be given this set of facts would rule that it is outside a calendar year and can't be revived the judge may kill it a then went on to consideration of due diligence as to whether or not there was due diligence in the an exercise of discretion that might have saved the case have no idea what arguments were down at the desk that the court thought that it was something to continue otherwise you wouldn't grant it because the court knew then that they were at the one they left point there and that it so a three sixty four wa bit but then that's what the one last day within it is told for seventeen days did they do that one last day because of thirty first would have been that one day would have won the last day it was that the it was the a there is nothing in in virginia law that says filing a nonce to told the time in which a non suit or and then vacating it tolls the time in which a non suit may be served and you could have gotten an answer to that question from a pretender judge if you hadn't removed the case world i'm not suggesting the outcome should be the saying but my point i think you know my point but it's simply that from a strategic tactical perspective i don't know what's going on here i was surprised to hear that there had been conversations between counsel i don't know if that's in the record but i was surprised to hear that this morning but any of it but defend it who chooses to remove a case the federal court has made it option to get a decision from a federal judge reviewed by this court as opposed to a decision pigeon a judge reviewed by the virginia court of appeals and perhaps the virginia supreme court i don't i don't think this issue is is is complicated and require extensive knowledge of virginia professor this is very complicated may have please the court and steve robinson and together with my associate nick sanfilippo we represent budget hotels in waterloo hospitality which for purposes of argument will refer to us as budget motels i think what's important first of all to go back to address some of the concerns the court has is to look at the calendar the counters in the brief and i would like to just give the court three or four days to consider first of all this case was filed on august fifteenth two thousand and eleven the eighty nin under the ninety days from a right to sue letter issued by the e e o c on august third well within the one year period of time in which service could be affected the plaintiff files an unopposed motion in fairfax f gets up and says we're taking a non suit thank you very much so rather than do what frankly i think would be logical to get back to judge davis point if you found a motion for a non suit on august third why aren't you getting a and going and serving i don't know the answer to that but frankly had that happened we would have been here today but what happens instead is judge roush enters the order on august fourteenth i'm not into the order  the plaintiff then realizes and again in all candor with the court it was a conversation with me because i called the plaintiff counsel this is not the record but i'm happy to share because i think there's some interest in it up to find out about the case your honor we monitor the case of she do sure court i mean you know fairfax in those days was in the beginnings of their electronic docking system and frankly we had a paralegal who went by you know probably once a month so you get a lot of business we knew the case of a we got a lot of we your honor we knew the case was coming because we'd represented the defendant in the administrative situation and frankly we were counting the days on the right to sue and frankly we only follow the docket in federal court it never occurred to us until ahead on on the sixteenth or seventeenth day on august thirtieth and again unopposed as judge gregory probably knows calendar control in fairfax eight thirty in morning you walk in your honor i want to order judge signs the order there's the judge doesn't have the file in front of himself or herself under the plaintiff's theory the case is now active on august thirtieth that is the last day to serve if this two thousand and twelve i see one day left so on august thirtieth just holding the fourteen or seventeen days what it doesn't make any definite make and i mean again is and we've argued in our brief and i think the district judge correctly found and again as you all know judge lee had the in the joint plan and i can give you decide if the court wants it you look and you see there's a handwritten note taishan to the court in fairfax at nine thirty am on that day to issue summons and so on the last day that service could be made the do use the plainest phrase it has to be alive and kicking because otherwise they could have gotten a summons but but but it's back on the docket but the date now is if it was all this fourteen i think your honor it would be august fifteenth why because the case was nine suited on the fourteenth it was an active case through the fourteenth i mean theoretically to get back to judge davis epidemic but that's see that would be the same thing if that was her last day if it was her last day she got the n then the day it is baby kate it would be the same day now it's yes the serb of where you have one more day then you have to have one more day after it is baby kate which would be two thirty first how would that not be i think the reason it wouldn't be is because the case was in existence on august fourteenth because it was not dismissed until that day so it was again to go back to the appellants phrase it was alive and kicking on the fourteenth so they had one day left thirtieth then the thirtieth becomes the virtual fourteen and so the thirty first becomes the virtual fifteen right now and frankly we need well it is very much your honor and with all due respect obviously i think that the case can't be a live book that the three hundred sixty fourth day can't be both the fourteenth and the thirtieth which i think with all due respect would be the circumstance under the argument that your honour's are positive correctly found there clearly was an absence no effect for the nonce it because as we cited in our papers and nobody really seems to debate that in fact the appellant in her argument also agrees if you look at her argument you never happen that's correct your honor if you look at page eighty five of the joint appendix in the colloquy with the district court judge lee ask quote tell me what your view is of the word vacate what does vacate mean to miss kelly well that other order doesn't have any a fact and we are just back like we were before and didn't she mean continuing effect i don't know what you meant your honor i'm you know i always tell when this is in depositions they can tell me what other people thought and i'm not about to do title seven case a title seven case that when suit was filed the operative events were now five years old obviously a lengthy period of time witnesses mood they die they forget things serious restrictions on taking out plaited any deposition any deposition so the situation that we had was number one it's a title seven case it's been around for a long time number two with all due respect to the bench in fairfax they don't see many title seven cases we wanted a judge who was familiar with the case law number three we would have been severely procedurally handled or hampered rather by the lack of ability to take broader discovery and frankly fourth and it's it's a part of every cent one lost it wasn't done until after year after filing in virginia it wasn't done until i was done within one hundred twenty days in federal court and there's no not as no attempt here to establish one of these procedural tripwires or to have plaintiff's case thrown out of court on as a result of being blindsided by some kind of rule or to be a matter of second nature to step they start process and give the opposing party you look at the extraordinary delay that took place there the question is you know should we bend over backwards or or try to work things around to salvage something that i don't think was litigated in the way that it really should have been and it almost encourage an absence of some kind of precision or due diligence in courts below when we when we do it this all of that could have been avoided difficulty is oh statutes and rules make it clear that no judgment can be entered and a case in which the complaint has not been served in a year absent an order from the court finding the due diligence occurred there's not even attempt to argue the due diligence occurred here and my time's running out i'll be happy to answer any questions but you are going to that if you are with in one year be three hundred sixty fourth day due diligence has nothing to do wit argument is that there was there was a tolling and that was time their argument is premised on the seventeen or sixteen days depending on how you count exactly not having any impact which would mean the order vacating the nonstate was a novelty which again i'm out of time and i don't want to press my luck with the court but i think we've cited the pay the decisions in our brief and the rest on our brief on that issue i'll be happy to answer any other questions that the and like to just address a couple of the points that seem to be of concern to judge wilkinson i understand that you are concerned about the long period of time that a plane of have served in until december to change his mind so we wouldn't serve if their motion had been denied and there was no need fourteen forty eight says if service has been found defective we have the right to research as a matter of fact judge lee had denied their motions but i think the real fundamental issue is was the case alive when it arrived and you don't have to accept any towing argument to find that it was fairfax record says it was and the very fact that we could have taken a non stude if the non student order was vacated then by definition we still had it on see it as a matter of right and there is no question that under control in virginia supreme court law we could take a non suit even after the expiration of the one year even after the one year for service expires is generous that is that is that that the holiday situation you're with no i'm not relying on waterman versus how person and berry versus fs financial marketing the virginia supreme court cases where the the court rejected defendants argument that had by virtue of the vacation of that order and we may have additional ones in the discretion of the court right right that's really all that that we have to show to prove under virginia law this case was alive but you're on a project under virginia law under controlling unquestionable virginia law we could get lost into he can give you all kinds of time to think it was the defendant's choice to remove and they really should not be heard to complain about that the plaintiff's right if service was found  don't control here if you know that the plane is in federal court and and is even if you did it only as a protective matter you would think that you would serve within one hundred served processed within a hundred and twenty days i'm just not convinced that any of these problems needed to arrive it has been made vastly more complicated by the fact that someone didn't even  eleven i've explained why we moved to vacate the non suit and it was probably unnecessary but we still have our nonfood as a matter of right which means the case was alive as the virginia legislature must have anticipated sometimes things happen in the course of a year ninety days is a quick statute of limitations we met that everybody concedes that i was local counsel and there are a number of events that just took place and and i was doing an amended motion for judgment i'm allowed to  rely just as the defense judge wilkinson completely respect and agree i understand i believe your point the defense has a right to remove what we have a right to wait an entire year if we want to we have a right to take a non student we want to we still have that right to take there are the two cases on which you rely well carla collins and roger show that the state court has discretion and fry that it's not just due diligence that there's the balancing of virginia statute is but my point is didn't count because the first one didn't count it was vacated it didn't exist anymore we could also even if it didn't count have possibly gotten a second one as a matter of discretion but we still had one is a matter of right and we still could have taken  even after the expiration of the one year service area and water and all the benefits that you don't want to accept any of the drawbacks what we'd like the benefit of either the state as it stands here with defense wins we are denied all our basic powerful procedural options as a matter of right that we had in fact in state court and now we're left with none in federal court because they chose to remove us quickly without asking to the state court to defendants have to ask for this court ruling or that's a court ruling before they really you don't have to do that you can remove the cases that happen sometimes within a day you don't have to sit there and i asked the state  why did judge league get it so wrong if it's so obvious just let me finish if it's so obvious as you say it is and now it appears that you're right that you could you could have taken a non suit  had the case remained in in in state court regardless of whether and when you served process how to judge league it that's all wrong i can't speak for judge lee when you say about his opinion is conflicting literally in different parts of it in one part of his opinion he says the vacation of the non suit order brings it back exactly to the status quo ante and then later he seems to have some doubt as to whether the plaintiff could take the non so wow how that doubt came about what he's talking about he cited no statute he cited no law and i don't know why he had any doubt ok that was part of the reason we appealed it we think it really is plain wrong