years morning we still in the morning yes we are morning morning runners and please the court my name is brandon woodard of white and case here today on behalf of the respondents king meridian and pfizer  your honour's this proceeding belongs in federal court the petitioner is trying to circumvent the federal rules of civil procedure by employing an otherwise legitimate state law discovery mechanism to obtain a highly confidential settlement agreement that was negotiated at arm's length by parties and patent litigation so that petitioner can file federal claims in federal court the very face of the petition elucidates the federal claims that petitioner intends to file making quite clear that the real case or controversy here falls within the jurisdiction of the federal courts why you're not saying however you're not asserting or maybe you are so please enlighten me that the state court is not competent to decide to protect the very thing that your client wants to protect of course not just a court clearly is competent to do so right now you saw him clear so we're all clear and charged under judge kaplan's decision it's back in the hands of the state court to make that determination which i am sure is being vigorously so certainly and we've been checking the dockets to make sure and otherwise have an up and notify petitioner but our but our position your honour's is that it should be decided the question is the discoverability or whether the federal issue and the stage that it is in in its development your thing your honor i think there's a very very simple answer the very first simple answer is the petition itself makes clear that the claims to be brought upon disclosure of the settlement agreement would be bought in federal court their federal claims the petition makes it very clear repeatedly that it would a ledge violations of the federal  federal jurisdiction exists too that the federal laws apply in terms of whether the discovery what judge mclaughlin knew a thing or two about the c p r and said that in opinion that this is not a civil action in the first place what makes this procedure that new york makes available a civil action which is what can be removed i think justice sotomayor articulated it well in the christian case where is whether it's a petition or a complaint or cause of action is really a distinction without any difference you need to look at the underlying causes of action to be brought so you know cause of action will ever be brought right this is not a case where someone has brought an action in the state court under the antitrust laws and then there's the petition to remove it and someone has brought a petition for any procedural rel that new york state for whatever reasons chooses to make available that's is that a it is that a a civil action which is the only thing that can be removed i don't believe it's a civil action i believe it's a petition it's a special proceeding seeking discovery to bring a figure of a civil action and it might not even and in this case the people from whom the bring a petition to say we want to take this gentleman's deposition because sadly he seems to be ill and we want to get it on the record before we bring our lawsuit and let's say they say we want to bring a lawsuit in federal court but we want to we want to take this person's deposition first the defendant in the case wouldn't even be involved with that in that circumstance no i don't believe so your honor i think how does he get to remove the case to federal court the person who's deposition is being so i would think so i would think so i mean it would again you have to analyze as just as sort of more or said in judge make up said what the perp the purpose of  taking the deposition for example the language itself with our statute our rules were two forty six b says that you have to have a copy of the initial pleadings setting forth the claim for relief this doesn't qualify it's not a pleading it doesn't have a cl for relief doesn't it does it does your honor the petition itself is very substandard and it could easily be cast as a complaint pleading as a pleading it could it is not simply a one page document request or request for production it is a multi page document with allegations and part because the c p r requires rect to be set out so that there's some notice to the side the other side if you will that's correct and what it sets out is that you and does that that if that the potential complainants suffered significant damages in the millions meant multi millions of dollars given the magnitude of the product so it effectively is in one way whether you call it a petition or a complaint or a civil action functions functionally it seems to be the same thing it's not merely a request for a deposition or york law is that the and the the requested relief of this raid you're saying this is one of those exceptions to the well pleaded complaint because the claim for what they're asking the state court to do which is simply to what but of course it wouldn't have to write the new york court could say we're giving this relief because we think that the document that was provided to us states a valid claim under the donnelley act that's right it could do that it could make that determination if it makes that determination and then why would we say that it's essential to the relief that is requested in the state court proceeding that the state court has on a federal crime i think i think the answer to that is not so simple in that this this the release being sought by petitioner here clearly is not available and under the federal rules it's not available where where where pre comp when you have it out this german act from his his petition you wouldn't be here that's not that's not correct da correct your honor no not at all because federal jurisdiction does exist federal question jurisdiction doesn't fact exist that can only be brought in federal court or can be removed by a defendant well there are cases that go both way but for sure because under the donnelly act a violation of an anti trust of a necessary element as this court as the pharmaceutical world that requires a substantial a look at and resolution of a substantial question of federal patent law was that that makes this record it's not the sherman act it's makes those whether it's the sherman sherman act yes your honor it would be a violation of sherman act as the petition states not only a conspiracy with respect to the prepared prospective co defendants that settled the patent litigation but monopolistic conduct under section two of the sherman act damages under the sherman act or the donnelly act and the reason that is is because the claimant must prove that the settlement agreement as the reverse payment allegedly reversed payment a legal payment a legal settlement agreement was the cause of the death of the injury of this new york state proceeding that we have before us does not seek any damages for anything at all it not as not as court seeking damages seeking damages and that is made very clear from the petition that that's the intent here to file a federal lawsuit alleging violations in federal court and so on the face as judges so the maior and rake of held it where the petitions themselves set forth as required by law the elements of the cause of action it's the elements of the cause of action that have to be looked at when determining the question of discoverability and the elements in those cases as pled in the petitions pled or written in the petitions your honour's  nature of those causes of action and the elements of blood the petition itself is removable to federal court and there it was removed and judge ray cough similarly for the same reasons because the petition itself  set forth claims that federal claims the petition on its face was good enough for judge or a cough to remove the federal court we have though that is really the exact situation we have here so  the district courts that have decided this issue pretty well divided which issue i'm sorry your honor decided whether these kinds of procedures are to be read as simple actions for discovery with no federal issue or whether you look to whatever the claim is that they want to bring someday if they get the discovery seems to me a majority actually go against you nationwide well i think that certainly there are the cases can kind of go go go both ways and in this and i'm not saying it should be decided by majority vote and there are twenty cases on both sides and in this circuit it seems to be the east river that divides the  petition like here that's what they have to do and so i think we're doing we're in a different situation and i just i would also add that nationwide never never has a stake what our federal court authorized discovery of this nature the thirty one zero two requirement and a federal complaint are functionally the same thing we submit that they're absolutely not the same thing all we're asking for here is for the disclosure of a document in any attachments to that you're doesn't matter whether it's confidential or not either court whoever gets this is going to apply discovery rules and confidentiality is going to be one of the things going to apply the issue here is whether the  walk into court and ask for a document without any sort of basis what i take it i take it the law is clear in new york that you can't walk into the new york state court and say i need this confidential settlement or non confidential s may not file a case well this is what puzzles me i thought that new york state was to the contrary that is if you come in and say to the new york state court i don't know that i've got a claim or not i need to see this discovery first but then it would be denied because you have to you can't go on a fishing expedition you have to say something like i have a claim and this is going to be helpful to me and formulating it properly or something like that yes your honor and we articulated in the attachment to the the that the courts need not discuss or address the patten issue especially at this stage in order for us to determine whether we get the document that we're seeking i'd also like to bring up in addition on  the i don't think so your honor but again we feel that the federal question issue is very clear there is you don't need to decide patent law or the sherman antitrust act in order to get to decide that the thirty want to see issue in fact which is one question it meets the requirements of thirty to thirty want to see certainly there would be more involved more analysis involved in order to submit a comprehensive complaint wherever we ended up filing that the complaint on that so it's our point it's our position your honour's that that there is no basis to to to be in federal court in addition the fact that there is no federal question there is no jurors there is no diversity the  respondents do even admit at page thirty three of their opening brief that their notice of removal was deficient and then they go on to request that they be able to supplement the record through the citation of internet sites and quotes and websites and such and we notice even though was untimely in fact the defendants admit twice other lawyers about twice and sworn declarations that they were served with a petition on may fifth two thousand and fifteen and the time that they file their notice of removal was forty two days after that date rather than thirty so that's a third basis would you be arguing let's say we up hold the district court the cases remitted they get the discovery then they file a claim which i gather they are not going to do but i pathetically they file a claim and state can they remove it at that point you finally having filed a complaint well it depends on what the allegations are in our complaint as we've said we are in direct purchasers we that petitioners an indirect purchaser of the of the product would have to make the analysis whether we're going to file in state court i got i'm getting all of that but it seems to me as you're arguing you're playing into the other side's hands explain to me why you are not if you are saying they're on timely because what what we filed put them on notice that we've got a claim that is to be removed and your argument is no it's not a complaint yes or no no how is it on timely at all it seems to me it's way premature till you filed a thirty day requirement from that core alternative argument by you that if we were to agree that a timely the removal notice would work because there is federal jurisdiction then you century for four bases here for why we submit that this case should not yes but you have federal have a couple of them right i mean you have said defeat both federal question and diversity jurisdiction yes there is a complicated set of issues here we've been talking mostly about federal question and if there is federal question jurisdiction you have to reach any of the diversity issues form defendant how you determine the citizenship of the trust we have to reach any of that because there's  raise the form and defend that rule untimely himself and that provided he did make a timely objection to the removal correct now is it clear is there any case that says that if you have timely a removal on some other ground then the district court is prohibited from noticing the four defendant rule  raised as a bar to removal timely then it's waived for sure but that would be if there was no objection made to removal and the case starts to hum along and then somebody says i just federal court at all the judge says oh but by the way there is this ground which of course we only get to if we are talking diversity jurisdiction seems to be we don't get there if you're right about the federal question issue if we do get to the diversity jurisdiction we've got a couple of interesting questions some of which come before you get to the form defendant rule like don't you have the totally wrong test for court and there's no reason why the federal courts shouldn't protect that rule provided that a timely objection to removal has been made and nobody's prejudiced because we haven't sort of salvo on the