good morning your honor evan marshall for telling charlotte tipton one thing that is absolutely clear in this case is that mike zimmer mike turner was not a fictitious defendant he was not somebody who was dragged in  simply for purposes of trying to defeat diverse lines why was he never served i think the reason he was never served i'm speculating a little here is because this case got removed to federal court from state court and once it got removed what we were doing is trying to get it back into state court and head gone back to state court we would have at that point served him at what point did you learn his identity his actual name when we got the medical records from zimmer and which is it discloses that mike turner is the when trial counsel no i wasn't but i bill i think i do know the answer to that question it was part of the rule twenty five disclosure they turned over medical records which in fact contained mike turner's real name and his real consultation with dr killen for so it would have been just after the case was removed i guess if you want to do that you want to fight that  have been another idea to serve him well it probably would have been a good idea on the other hand given the burden of proof on a motion of rematch the burden of proof of showing fraudulent jointer you would have thought that zimmer would have put produced a declaration their employee mike attesting that he didn't have anything to do with this going on councilman the point is that your client filed a lawsuit and included mike yes in the lawsuit and yet as far as i can tell took absolutely no steps to serve mike and under rule four m if a defendant is not serve the ninety days after complaints filed the court must dismiss the action without prejudice against that defendant that never happened here well i think  the rule for him would come into play if the removal were valid on the other hand if the removal was not valid then the case should have or should have been remanded and the state court should have followed its rules but i would here you guys and this guy's include in the lawsuit and maybe i'm not suggesting he should have been but no effort is taken to actually include him in a lawsuit i think we've cited authority in the briefs to the effect that service is not  really on the defendant if the defendant has been validly joined in service on them or their actual appearance in the action is not critical to the question of whether removal was valid or really to the motion for remained but you know all i can say this factual matter our position was we should get this back into state court and then we'll proceed against everybody show why not i mean this is kind of an odd case because mike was never served but as far as i can tell the other side didn't really make an issue of that either would it make sense for us simply to remain in this case to listen closely not mass in state court right away to the district court and to conduct a hearing to determine whether under four  service was was either didn't happen the right way if that was cause for dismissal because i don't think anyone's ever analyzed the question this for em question and we're not in position to collect tech to conduct a factual hearing to do that it seems to me that could be crucial to this whole case well i would just disagree again based upon the authorities that say the issue of fraudulent joined or miss joined or whatever kind of wrongful joined you have doesn't turn upon whether the individual has been served or not what case is that you know i can't i can't tell you as i stand here i pray this got to miscounted and i write it with my briefs but i know it has been made it is in the briefs  but we're really putting the cart before the horse here and i think more particularly what happened here is is the district court decided that notwithstanding that there's a real person with a real involvement in the case well maybe maybe not i guess we don't know well we know from we know from zimmer has never denied that there was a real mike turner and that he was the agent the sales agent who we know from dr cav fars declaration that there was a real person and that he came to him and consult a doctor to have done far about using about the use of this particular device so i don't think there's any question about that at this point in time in there was somebody out there who was definitely involved in the doctor cavan for relied upon him the court decided that because there were these two parts and one of the part didn't have a manufacturing defect and the other one did that i guess there was no causation causal relationship so in effect that was an adjudication on the merits of the district judge disagreed with the surgeon on this and when there's a  disagreement between the surgeon and the district judge i think on matters of medical decision which is what this case depends upon the question of whether the surgeon would have proceeded as he did had he had the issue of defect been fully disclosed the tie goes to the surgeon so that's another reason why this was really defective because in effect it became as i said and there sat summary judgment and it and the decision of the of the district court to remain and really depends upon  her view of a particular causation issue unless the court has any further questions and when we hear from the other side a new seemed quite a bit of time provided in connection with its rule twenty six disclosures which provided the full name of mike turner happened on december tenth two thousand and fifteen ok so a couple months after the you notice of removal the motion to remain was filed eleven months after the removal only when mr hempton saw as dimmers summary judgment motion with credible expert witness testimony that you need to defeat these sorts of prescription medical implantable devices and park liability claims miss to admittedly had no expert witness willing to opine on her behalf on any theory of defect that was admitted to us and i mean confer process that is in the record and at that point decided to remain  opinion the judge denied that motion plan defense filed a motion for a new trial which the judge deemed a second motion for reconsideration and that is when we saw the doctor declaration and i'd like to clear up one issue on d declaration and this issue that the court disagree with the surgeon the recall issue is very simple first of all this was a two thousand and ten recall of one lot of one hundred ninety two components this was publicly declaration that accompanied the motion for a new trial did not do so and most importantly the district court found a finding of fact that this recall this six year prior one lot recall of one hundred ninety two components had nothing to do with the actual implant that missteps in received ok the femoral component that is the same type of product admittedly but is completely different and the femoral component that was implanted  as far as i know is still in her today and i know for certain at the time of the motion for summary judgment hearing was in her so if you read the doctor in her declaration carefully particularly paragraphs three five and eight you see that he was given bad information he's thinking and when he's writing this declaration i would have said done something differently he's thinking well the product that i put into my patient was recall and the district court found a finding of fact that not to be the case so the district court in no way was practicing medicine or second guessing the doctor she simply said and i do want to read from this the district court simply said so individual individual defendant turner cannot be held liable for failing to inform dr kevin far of a recall when there was no relevant recall of which to inform dr kevin far in the first place so that's even if you know all your young makes perfectly good common sense having lived with questions of subject matter jurisdiction in the federal courts for most of my professional life i have to see that not all of our jurisprudence in this area makes good common sense the question is at the time of removal was the joinder of the only first at that stage it is at least plausible that there's a cause of action against him we know just because we know these things that when sophisticated medical devices are implanted the representative of the company for whom this is supplied the device consults with the doctors who are going to allegation to that effect this is perfectly plausible we have no idea at this point what mike might or might not have said but i can't dismiss it out of hand as frivolous well i'll concede this i could see this your honor if if plaintiffs had filed a timely notice of re mand i think why we would have lost is because it minutely zimmer did not include fraudulent joiner in its room i don't think she's wrong and we can talk about that but but you know and i would say i would say one thing that we haven't talked about yet is the c hoppe prado potential right this was not a holding in the case but the discussion about the possible diversity exception to this general rule that subject matter jurisdiction you know can be looked at any time and i think if there's a poster child of a case for adopting the proposed diversity exception  see how prado court discusses it's this one and i just i'd like to actually just go back to the basics for a second and look at a case that was tipped inside which is the mohamed case and now granted that is a form defending case but what they talk about in that case is that if you look back to when this goes to the whole service issue if you look back to when fourteen forty one b was amended to include the words all parties properly joined and served and i understand there's a split in the district courts and the circuits as to how strictly to construe that language that the court looked back and said why was that language at it was added to address a problem at the time of plaintiffs suing non first defendants to stay in state or you know with removal for that if the plaintiffs have a meaningful chance to serve people that's just not fair that's what nobody is thinking about that forty fifty years ago when they met at the statute but you also can't have gamesmanship on the plaintiff's part and the exact concern that the fourteen forty one amendment addressed is what we have in this case the best evidence that there is no color will claim against mike turner is the actions of plaintiff and her counsel and how she litigated this case when we removed no notice of remained th litigated the case for eleven months they noticed no deposition they never served turner they never attempted to get me discover for discovery from him they didn't attempt to take a deposition of his him or one of the witness to talk about mr turner and in the three treating doctor deposition that zimmer noticed it became clear that none of them relied on zimmer for on turn or for selection of the press the device that doesn't happen that's the practice of medicine the rats show up with the proper components in the proper sizes based on directions from the doctor and it just and tensions council was present at those depositions she didn't ask you know a ton of questions about what it might tell you what should might have told you if my kid told you about this recall would you have you know done something differently none of that was asked there the evidence the evidence in this case that there's no collateral claim against mike turner is that the the way that they litigated the case i mean surely if counsel thought they had a colorable claim against mike turner would they have an obligation to their client to serve that defendant and pursue discovery against him asking you to back away from that at all but no and i know you don't want this case going back to just a court so i'm not asking you concede anything but i did ask posing counsel a question about the forum question which is really never been addressed by anyone in this court assuming and this is i just say this resort assuming we're not going to go your way and i haven't talked to judge once you were just great about this case what noise are you what would be the any issues with sending it back to the district or could make findings under four i mean for the record it's clear that he was not served ever i mean that's i think that there's been some dispute but there's a good there is a good cause exception to rule for him and i don't think any findings have been made clearly that would not be my preference but i would have a high degree of confidence that they would not be able to put forward any good faith reason why it wasn't served i mean they knew they knew they knew they knew who he was they could've service with discovery immediately and said mike turner give us these documents we give them documents in timely fashion that gave them in his name i do want to make one clarification on something that counsel said though and this might not be in the record but it's actually just an important factual thing he's not our employee ok no excuse here what happened here that defendant is dismissed under rule for him then i think you have what you want in this case i'm trying candidly to think about how that works out procedure i guess are summary judgment motion just stands about point because you  the problem of lack of diverse parties would be gone or caterpiller we can still implement a judgment yeah like again that would not be my preference i should i think that the record establishes you know you've made it very clear what you what you want to have happen which is which is good because sometimes lawyers come up when they argue you have no idea what they want you've made it very clear what you want this i do i do i feel morally bound and i just i think that i would i would just point out in terms of whether there's even any remote chance of a call or will claim against turner putting aside the conduct of how this case was litigated by the other side is just i would reiterate the district the district court's very thoughtful order that that dec doctor which is the only thing that that they can have that in the recall that's the only piece of evidence they can point to in rebuttal to the evidence that we have established that he had really no connection to the case per the three doctors who treated this patient is that the declaration was beyond untimely under any conceivable interpretation of rule fifty nine or local seven eighteen but that the district court in the abundance of caution when they looked at it anyway right interpret it she said it was untimely for sure but then went and looked at it substantively and said you know this is this this is based on a recall that didn't exist which i you know and i made a finding of fact on that point so you know we never got to depose him on that it's really certain either here or there but unless it lets the panel has any other questions all i didn't thank you marshall you saved me just briefly two points one if you look at the complaint this is not a complaint where the guy's name is just thrown in it has some specific allegations if you look at the petition for  nothing at all about this comparable to what you heard from council there's nothing about mike turner being unrelated to this there's no explanation as to as to really why he's not a valid leave name defendant so they didn't so while they fall plaintiff for not joining him or not litigating the case against him or that they brought this case to the district court without making a case for bringing it to the district or  i'm having trouble fitting this into the sort of the prescribed boxes that jurisprudence gives us but it does strike me that there's a common sensical argument that if you had thought that there was any serious possibility of liability for against mike that you would have served well it would have tried to bring him into the case by my best evidence here is date dr k wins for declaration counsel refers to the district court's ruling about relevance and they say this isn't relevant because the the defect is in some other a lot but relevance in this case is in the mind of the medical decision maker  making a different point and that is this case is going along you're doing discovery or you're interviewing doctors you've got michael's name you now know and you display absolutely no interest in mike until it looks as though lumps the summary judgment is going to be a tough one and all of a sudden we want to remain and and you know that doesn't sound like meit was a serious defend well i would just say that there is evidence that he was a serious defended in their own record always you couldn't find the guy he moved to a foreign country i mean what's going on here i frankly i can't answer that question i wasn't involved in that aspect of the case but as we as we are i don't need to tell you that these determinations are made at the outset of the time of remained rather than later on based upon an afterthought now i can say this i think realistically you know you never really expected to get money out of m turner or whoever it is you know who is the deep pockets here in this kind of case and you know that having him in the case isn't really going to add much to it because after all if dr kevin far comes in a trial and testifies mike told me this that or the other thing well that's good enough to show the cause causal causal issue a causal relationship between not being told and that was the gist of the case against mike turner and zimmer not being told that there's a problem that manufacturing problems with these kinds of artifacts so there's a you know a realistic problem sometimes people are liable and you don't bring them in because it isn't as you going after somebody