explain why this court should reverse i'll provide a brief summary of the case the appellate oil caribbean knew a major hurricane was going to hit the galveston area in the days leading up to the scheduled cruise the passengers wanted to cancel and get a refund but boy wouldn't allow it and will miss len perspective passengers to travel to the galveston area where the prospective passengers including children and the elderly were subject to catastrophic flooding category four win injuries potential loss of life all in a foreign area thousands of miles away from their home as they had to wait through flooding waters with downed power lines in order to search for food and water to stay alive these prospective passengers ten thousand dollars to go a vacation with the oil and oil subjected them to a traumatic experience miss mcintosh filed the original complaint as a class action on behalf of herself and all other similar situated perspective passengers alleging three causes of lower court failed to allow the plaintiffs an opportunity to prove that their claims met the amount of controversy requirement for diversity jurisdiction which the district court was required to do to the th circuit court case in morris of emotional distress claims when the court should have applied the zone of danger test had they have applied is under danger test they would have certainly found that the amount of controversy was sufficient to that point and analyzing the amount of controversy the district court applied the wrong test it didn't properly apply the supreme court rule in st paul mercury where the  the amount of controversy is not made in good faith only if the district court is legally certain that the point if absolutely cannot exceed the amount of controversy nowhere in the district court order doesn't analyze this supreme court precedent rule for analyzing the amount of controversy the appellee did not contest this arguments or briefs and cannot this is a case of your honor i reiterate that these points were misled into a major hurricane zone and trapped there for days to two weeks is a very traumatic event and a lot of them had very significant damages and trauma related to it so when the st paul mercury test is followed the lower court will find the amount of controversy is made in good  there are we do put we did pled that the amount of controversy exceed seventy five thousand dollars we did plead that and again i reiterate that the decision of whether or not there was sufficient amount controversy was made to respond to it so we never had an opportunity to present any evidence of such and you know there is due process concerns in doing so you know this is the st time we've had an opportunity to be heard on this issue is on a ahead did you did you plead generally that each plaintiffs had suffered damages of over seventy five thousand dollars yes your honor ok go ahead complaint we're asking the same here on the court remand the case with lead to a man and we're going to follow the heinen decision that the th circuit recently issued and we're going to put we if we agree with you that the district court heard in finding a lack of subject matter jurisdiction do we need to address any other issues or do we just send it back waiver it just simply does not apply it is clear that if you read the ticket contract and you know the fact that a plane has never traveled on the cruise they never embarked on the cruise much less never went to the pier to checking those the contract was not exactly did and is lacking usual sat reading but actually wait wait hold on hold on one second assume there had been no hurricane and assume that when everybody showed up to the port royal caribbean told everybody sorry there isn't going to be a cruise and we're not refunding any money would you have been able to file a class action for it's not i know it's not it's a different case that i'm asking you about but i want to find out whether or not the class action waiver would have applied to that breach of contract case for simply canceling the cruise i believe that the class action waiver would not apply reading the well reading a class action where it says quote passenger may bring claims against carrier only and passengers individual capacity because the sentence alone does not explain what claims will be subject to the class action waiver we must turn to the definition portions of the contract passenger means all persons traveling under this ticket contract the plaintiff had not begun travelling on the cruise and never embarke same definition of passenger with the same appellee was analyzed by the st circuit court of appeals and rams versus royal caribbean cruise lines and a very similar factual posture in the court held there that the provision in the passenger  contract did not apply to an injury suffered by a passenger while short on hotel property owned by the same entity royal as the owner operator of the cruise or the contract definition of passenger as one travelling under this ticket passengers will have a right to a full refund of the cruise fare if the cruise is cancelled so that strongly suggests that passengers include customers before embarkation on the cruise doesn't it the problem with that hypothetical that since jordan was was pointing to and i understand the problem is that the days leading up to the cruise one will was misleading these passengers into believing that the cruise would still go on and that no refund would be administered so this misled them to go to the area and wait because they can't just a lot of these passengers live thousands of miles away they can't just travel on the date of the subject that people are passengers even if the cruise is before before they're actually travelling on the cruise it seems to me that contradicts your explanation of what the provision means what the definition of passenger mean sticky country they were travelling on the cruise yet the refund provision is a separate division entirety and this is this is subject to what you know what has to do with a class action waiver whether it's a political or not and  and there is no further questions i will save the remainder of my time for rebuttal all right thank you very much mr bork yes this is sandy berger  represent the f l iraq caribbean cruises limited initially i'd like to just say what this lawsuit is it's not a law suit by a number of people ms mackintosh was given leave to amend her complaint to fix certain deficiencies in two prior complaints she never asked for or was given leave to add one hundred and thirty one additional plaintiffs but she did this is a lawsuit by a woman with no discernible physical who claims but doesn't actually describe a host of physical emotional economic injuries none of which are recoverable as a matter of law and asks for compensation in addition to the complete refund that she did get  cruise ticket because of the cancellation i keep hearing the word misled there is no fraud claim and i think it's clear even from their complaint that royal caribbean simply went back and forth on whether they thought they could get that ship out into the gulf away from the hurricane  the fact is true as counsel said the jurisdiction issue did not come up until judge cheyne brought it up it wasn't brought up by us in any of our motion to dismiss and  he just decided that there wasn't a jurisdiction that he focused on diversity jurisdiction our our reading of hunting although it's just one line is that the court in heinen said there's admiral teacher stiction this case is exactly the same as heine in the lawyers chose to file two lawsuits instead of one the district court to chose not to consolidate the cases and so they traveled separately however there's one very very common thing and counsel is talking about what they have a right to prove things in hind in the court made a special emphasis on the fact that the the only support for the appellant their allegations of harm comes in a combined paragraph listing what seems to be every possible injury imaginable to the coral recall that's exactly what judge marino said today him and they said no we'll fill it in just like you heard today at oral argument we'll fill it in with all the details of the damage to each person separately and they never did it got dismissed and that's why it got affirmed well we have the exact same situation here paragraph one hundred and nineteen of the nd amended complaint that is the rd complaint in this case has the exact same kitchen sink allegation every one suffered every injury they've had now if you look at it in that way six times these lawyers have had a chance  to allege individual injuries for individual people and they never have i think they've had their chance to do that this is really the same case as heine and it deserves the same result but well let me let me interrupt you for a so the district court said that there was no federal subject matter jurisdiction no federal question jurisdiction so that's incorrect right i think at this point  diversity our view is that after hanging in there several teachers stiction and therefore he was wrong when he said there was no jurisdiction he didn't discuss and real teacher stiction as to diversity i think he's correct i think they had ample opportunity to make palpable a legitimate allegations of she's missing of a mountain controversy and they didn't do it and in the same problem they had in hind end they actually don't allege any any real injury that this is collectible is recoverable under the law that could amount to for ms mcintosh the only legitimate plaintiff in front of judge king at the end to seventy five thousand dollars and we only got the only the only rationale the district court gave on the amount in controversy issue was that the plaintiffs couldn't aggregate but that's an incorrect analysis right because what the district court should have done was determine whether or not as pled for example ms mcintosh had legitimately pled or plausibly pled seventy five thousand dollars in damages no whether or not she could have aggregated with everybody else it just seems to me the district court's analysis is just made maybe at the end of the day it's harmless error but it just seems to me that this trichords analysis is flawed in macintosh's claim and i think that's how we explained it in our brief again we didn't move to dismiss on jurisdictional grounds and you know i know i have to after hi of think it's a moot point because the panel in kind and i know you're on that panel said there's there's adult teachers stiction so our kind of view is that if there is and there was if there dismissed however he never addressed to the things we did move to dismiss which were the negligent infliction of emotional distress claim and the negligence pure negligence claim so at the end of the day what i just my view is i think the case has to go back to judge king and that's this court were to and i'm not sure the court wants to do it look at this and whining and realize it's the exact same thing and there's no purpose in sending it back barring that it would go back judge king could look at the diversity jurisdiction issue again if he so chose but you would be telling him there's admiralty jurisdictions there's  appellate court there you have it then if he had jurisdiction then we would go to which is obviously briefed by the parties the class action waiver which i think was properly enforced  if if it's ok i'd like to before i run myself out of time i'd like to address that as to the contract the the the parties had a contract there is no unilateral contract or whatever it was they wanted to argue it early in the case it was established that ms mackintosh a checked in and accepted the terms of the agreement no one disputes that she accepted all the terms of the contract the definition of passenger as of course pointed out it's much broader than what they have they quoted out of context for whatever purpose they have these arguments one is it's ineffective until she boarded there's no authority for that they say two  s palmer and angel both of those involved tickets purchased by someone else relating to an incident on the ship ms mackintosh bought the ticket she checked and she accepted the terms she paid for it and if as short and pointed out she had shown up at the dock and nice sunny day and no weather problem anything royal caribbean said we decided we're not doing this cruise and we're not giving you a refund it's been nice knowing you she of course would have had a cl and if they did it to everyone she probably would have had a class action claim assuming she could meet the standards for such claims and there weren't a class action waiver but the contract says it covers the entire relationship and that includes payments and refunds it talks about passenger definition talks about when someone's on board or on land their whole basis for the suit although it's not a contract claim is they had to come to houston because royal caribbean wouldn't give them a refund fourteen days in advance under the contract so they had to come to houston and be ready to board if they were forced to because they couldn't get a refund under the contract they have two other reasons section th the united states code is a statute that relates to limitations on liability but a class action waiver doesn't do that and it's never been held to do that a form selection causes have been attacked under this too and they've never been held to be invalid because although they make it difficult for a pay plaintiffs to prove their claim if you live in michigan and you have to come to florida still the form selection clauses have been found not to violate th and you can see from the quote on page thirty three of our brief in that in that regard a couple other quick points the the the point about the zone of protection you have to have an objective physical manifestation of emotional distress and that gets back to what's wrong with this entire lawsuit and what's wrong really with sending it back for a useless purpose these lawyers have had six times now between two physical injury did they fall off the balcony at the holiday inn while they were waiting to board the ship but he was making a joke but he he got an absolute assurance that they would fill it all and they didn't and as a result the hine in dismissal was  have here now they're promising after three complaints and i think three is enough in this case that they'll abandon this one size fits all and every plaintiff suffered every piece of damage i think it's really kind of time to put this to rest however i can understand the other way of looking at it if you look at it the other way there was adam of the jurisdiction judge king could be questioned for how we approached the diversity jurisdiction issue although i don't think it matters if there is recognized and we just don't see it that way but if that is one way of looking at it we think this court should look at it as a practical matter and say under hind end there was maritime jurisdiction and under hei they just don't have any claims and there's no purpose in sending it back for a futile exercise by judge king and then a nd appeal where this court just affirms and say time if there are no other questions i don't have anything to add posture of these cases saying that we had six times to amend the complaint and fix damages that's just simply not true specifically with the macintosh matter the court dismissed the st time  for the intentional infliction of emotional distress going with prejudice then it was dismissed the class action allegations were dismissed soley the hostile action allegations no other issue was addressed and then the rd was the su and brought before the judge dismissed pursue a sponsor and a poly is also said that jurisdiction is a moot point that's just not true here it is certainly not a moot point it's not harmless  people were deprived of their day in court and it would be improper to overlook whether diversity jurisdiction is lacking just because the court finds the jurisdiction because doing so would take away the plaintiff's constitutional right to a jury trial