under the local controversy exception if so remand is required and as the federal railroad administration issued a regulation order substantially subsuming the federal hours of service laws if not there's no preemption of california's hours of service laws because that's what congress expressly instructed in the federal railroad safety act all dressed for man first under the class action federal under the class action fairness act federal courts must remand local controversies when there's not a complete diversity when you have local defendants and significant relief is sought from those local defen this is a case about california law californians are on both sides of the v four out of the five defendants here are californians you need specific argues that those californians aren't that significant because the plaintiff would at most recover only four thousand dollars per violation from them whereas union pacific would be subject to five thousand dollars per violation or thousand dollars versus five thousand dollars is significant union pacific also argues that because there may be other railroad employees at other locations that the local defendants here don't constitute enough of the damages that are alleged here to w you're assuming on behalf of all of the employees of your pacific how is this how is the claims against these two these two these four rather individuals significant either in one and that's the only know of but the railroad travels throughout the state there was a taxi cab company in los angeles i could allege that i had taxi cabs are out this the county of los angeles but it might only have one location where those cabs are par which lists something like forty eight i'm not sure of the exact number of rail yards in california that the union pacific maintains including a map of where all of these  are throughout california i can read them to you but is about a document that we could take judicial notice of well not under s t s not under the ninth circuit's ruling you're bound by the pleadings however even under that  were i just asked you before i told you this were you agreed that we could take judicial notice the we in terms of looking at the complaint just as we can normally on a motion to dismiss consider facts of which we could take judicial notice and you said yes yes you can and what not under sections a and b b which is what the yes if this is and you can take traditional notice of citizenship you can take just some initial notice of certain things that the that's true but they did deal with extrinsic evidence and that's what i believe judicial notice you're referring to you're looking on like i don't understand why not if in the ordinary case if we were looking at a motion to dismiss the complaint we would be bound by the four corners of the complaining plus different kinds of real world locations some do repair some do switching but intermodal operations i'm only aware at this point of one and union pacific that's provided no such details and this case only concerns freight  intermodal operations in morrow's and rant managers and i'm not aware that they exist in any location other than the one that we've alleged however in addition to that it's not just the mathematical analysis that would be based on in numbers you can't say x plus two equals five unless you know for sure what x is and so taking judicial notice of different railroad locations doesn't provide you enough information to do the math and it's union pacific suburban but in addition to that california has specifically made railroad agents liable for violations of its safety road safety laws and that in itself is significant the fact that union pacific is also liable maybe for a whole bunch of other violations at other locations distress and are going to collect five million dollars from these four individual employees i think that that means that this court is being placed in the position of the clearing that california doesn't have a significant interest in holding individuals liable for violations opinion there's nothing in the complaint to suggest that as this west is a nominal defendant and now getting to the critical part or that estes west has so few assets that komen is not seeking significant monetary relief from it and you're basically saying you basically put in for low level employees of the union pacific and the reality is that the money is going to be paid anything close to five million dollars which is what you're you're asking and essential that we have to presume you're asking for is not going to be paid by them well i would disagree with that why not if they're individually liable they should well it's one thing to be individually why but it's another thing to have a twenty percent or five million dollars for example which is what you say each of these people are going to pay so what coleman said shouldn't be looked at and i'm time drink you from coleman and so there's nothing in the complaint to suggest that these west are so few assets that coleman is not seeking significant monetary relief from disagree they had authority over the scheduling and had they followed the law there would be no safety violation and the four of them can pay he could pay four million dollars and before a million dollar judgment i haven't seen their bank accounts and i don't think that this court should decide to ignore coleman b s t statement that what's sauce is important not what's what maybe we're covered because we assume that these low level employees who in fact aren't they have authority over scheduling operations can't pay a judgment recovered and if this court wishes to overrule coleman vs ti's of course that's your prerogative but coleman vs these is clear that what's sought is important not what's recovered and california felt that imposing a five  dollar provider lation fine on the railroad company versus a one thousand dollar fine on the individuals was enough to enforce the labor code and they conclude well that's just too much for an individual to pay i wish i could do that if the highway patrol pulled me over for speeding i'd say you know i'm kind of broke you know let me go i don't know anything that's not what the statute says i don't know if these individuals have the ability to pay but this isn't the tort violation this is a safety violation and it's a fine it's not damages it's a fine for work at this particular railroad against people who are allegedly responsible for the proper way should or california war i'm afraid that's not correct just no more than we're bringing in a private attorney general act on behalf of the state of california and seventy five percent of these proceeds go to the state of california and the reason that the private attorney general act exists is to encourage and force one of the labor code through private attorney generals like mr christmas that's significant in and of itself regardless of the of the financial calculations under bingo we don't give federal courts the authority to decide that california has interests in its own safety laws as in signal that's not the you sure you could bring an action against individuals on behalf of those particular employee use who are actually affected by the misconduct that's not an issue here we do want to do was bring a class action on behalf of every employee of union pacific  sorry every employee yes it was affected in the state of california do a rail yard that's right and they're saying there really aren't any other places i'm not saying there really aren't any of those are saying two things one we don't know how many other places have ramp managers or in my o's and therefore the numerical analysis is exploits to equals an unknown number and that's union pacific spurgeon to show not ours and the second thing is that the miracle analysis really shouldn't even apply because this is a safety violation and it's a fine for breaking the law it's not tort damages and that's what being it was about this is different this is the private attorney general act and california is seeking to enforce its own laws and if we could then get into preemption california is not prevented from seeking enforcement of its own laws because congress said so the federal railroad administration also said there's no hours of safety regulation and the only can't of the federal road safety act of a later congress so eerie which was decided in world war one the supreme court says and i think it's a coburn case that what was in effect up until nineteen didn't change the preemptive effect of other laws but the express preemption vision provision in the federal road safety act does apply to the laws in the federal road safety act if it didn't it's a nobody the marshall case statured i don't know if it is a real desire as opinion in the supreme court's opinion and couldn't be clearer i think it's very clear that the express intent of congress in the federal safety act was to allow states to enforce their own laws because that's what the express preemption clause as it says it in the safety clause that didn't exist when erie was decided it also doesn't exist in the locomotive inspection act or the boiler inspection act therefore that express preemption clause doesn't apply to other laws but absolutely does apply the federal road safety act otherwise you're no applying the express intent of congress congress meant what it said it wanted to encourage states to enforce their own laws and we know this because it said so it hadn't said so in one nine hundred fourteen but it did say so when they first it was passed and first it doesn't change the preemptive effect of other laws but it does certainly affect first otherwise it's and already therefore there has to be a regulation here if there's no regulation or order there's no preemption that's what congress said and to say that the supreme court can and quietly overrule the express intent of congress creates a super legislature and that's not what courts are decided to do it's very clear t every case i've ever read that the express intent of congress comes first and if that's made clear judicial inquiry is done first the has an extension preemption call your time now so thank you i'll give you some t the core idea is that you cannot satisfy the local controversy exception by naming local employees who are merely responsible for applying or enforcing the corporate policies of an out of state company now what the plaintiff has something to do here is to say well i can do that if i'm sufficiently vague in my complaint about exactly what these individuals did who they were responsible for so  that's the pattern the false route his complaint he says for example mr davis is responsible for scheduling hours and days of work but he never says the hours of  is at the individuals at this one rail yard is it all am i go throughout the state is that all employees of unit the said think we don't know moreover we have no idea based on this complaint what their relationship was to this policy are they responsible for it did they come up with it or the implementing something that was handed down from corporate headquarters in omaha that they have discretion to change it or there are other managers who have a role in this policy none of this is is laid out so at best at best his complaint is ambiguous about whether these are just minor role players and forcing the policies of an  company or they have some central role in this scheme and he says that's our problem it's our burke we didn't come up with evidence about how many facilities will this court has said repeatedly that is not some local representative of an out of state company that does business in california remain vague and ambiguous about what exactly their role was and then just from there on just talk about the defendants in the aggregate which is what mr christmas is done here this is supposed to be a narrow exception and his approach the exception swallows the rule let me briefly address the two specific prongs of the  controversy exception beginning with significant relief he says in his reply that's forty four percent of the total and he gets that by aggregating the eleven percent that he calculates each individual would  today you put it in terms of four thousand versus five thousand there's two problems with that number one he's aggregating the potential liability of the four individual defen then comparing it to only one of the two out of state company defendants and i think it's highly debatable whether it's proper to aggregate the claims against the four individuals in the first place i think the better approach und kathy would be to focus on the individual liability beach walk versus the out of state defense but the bigger problem is that he's only focusing on the  pocket claim is count three in his complaint it's the only one where he's seeking money damages against both the companies and the individuals the far more significant claim monetary only in his complaint is count want which is the unfair business practices plan which is made only against union pacific now the unfair business practices claim is far more significant because that claim under california law has a four year statute of limitations versus one year for coffee it has a twenty five hundred dollars per violation penalty and so if you assume one hundred class members as he alleges and let's just pick one hundred shifts per year multiply it out that's one hundred million dollars in liability just for union pacific used the same assumptions and same number class number same number shifts and multiply out the paga claim it would be five million dollars for union pacific and one million dollars for each of these individuals so it's one hundred five million against one it's less than one percent so you don't even need to reach the question of whether these individuals are liable only to a subset of the class or to the class as a whole under any definition less than one percent is not significant relief and it's a comparative analysis this court has said that repeated with respect to the significant basis question we've emphasized the fact that his class definition is state wide and he says well we've never talked about multiple facilities you can't just assume that maybe it is just facility the problem with that your honour's is that it's his burden to clarify this if his complaint is ambiguous you can't just assume that everyone in the class he has a unique ability here to say wait a minute union pacific you're wrong i can't do that under coleman i can't come in with evidence to say look there's actually five going to motile terminals and there's only three people at this facility and this idea that these four individuals are responsibly for the whole class is bunk i can't do that but he could and he didn't do it now with respect to the preemption question  let me start with feel preemption and judge korman your questions with respect to that the current decision by the supreme court is that is exactly where i'd like to go because there's no debate that the supreme court said in one nine hundred fourteen which by the way wasn't that long ago in a railroad law germs that the hours in service act has feel preemptive except his argument is that was changed in the effort to say different analysis well mr christmas is apparently not read the legislative history here because when these three acts the federal service act they're both part of the effort say the original piece of the effort to say that includes the preemption clause became chapter two one the locomotive inspection acts chapter two of seven moreover his position just doesn't make any sense he's saying that there's field preemption for many many years decades and then congress passes this law that says we want uniformity of laws regarding railroad safety but silently over rules eerie and says there's only going to be preemption if the secretary passes a regulation that duplicates in all respects the statute that's already on the books it's just not a rational conception of law now if you don't buy that if you spot some reason thought there wasn't field preemption the alternative basis is the offer of say itself and the issue there is whether you need a regulation or whether a statute might be good enough we point to a one group or a site which is the provision that talks about laws will be uniform while he doesn't like that he skips over that he goes directly to a two which is the provision the savings plans and he al making there wasn't anything else for congress to be talking about and marshal in by this court and kerns by the supreme court both make this very clear now manuals the technical bulletins by f r a and his response is essentially zero what with respect to appendix a that's just a rules not a regulation and he points to the definition and the administrative procedures a so if this is a rule appendix a as a rule well that's good enough for the secretary has acted in this area there's plenty of authority at the federal level with respect to hours of service kind of ask you to go back for a minute you were talking about his burdensome terms of pleading where does that come from well the the courts are all in agreement on this referred you to this court's decision in banco as well as court's decision in calling on both of which state that it is the that it is the defendant's burden to articulate in the first place the bases that the predicate for removal but once that is done the  it is true this court agrees with every circuit in the pantry on that point there's no there's no disagreement as to whose burden it is to establish the bases for the exception unless there are any further questions thank you counsel thank you forgive you tonight as for fun here of a piece of cork the locomotive expects an act as a different preemptive effect than the federal railroad safety act in the world safety act applies to issues of railroad safety the locomotive inspection act does not and that's in the statute and the supreme court said that they have different preemptive affects of the first it doesn't change the preemptive effect of laws that aren't railroad safety laws but it absolutely does affect well road safety laws and as the district court correctly found here we're talking about a we're road safety law here therefore of the expression preemption clause applies the argument that the preemption clause doesn't apply to preexisting laws means that that entire clauses and melody because the act itself only gives the secretary thorny to regulate on laws that were in existence the day first was passed and therefore if it doesn't apply to laws that existed one person of the list passed and also doesn't apply to give the sector authority to issue any regulations afterwards then that expression parisian provision clause doesn't apply to anything and that can't make sense the only way to interpret it is the common sense plain language definition which is federal railroad safety laws don't lead to preemption only regulations and orders and that's what congress said and that's what congress meant and that very same expressed preemption clause it says it uses the term laws in a different section but when it comes to the safety clause it doesn't congress didn't do that by mistake and this court shouldn't conclude that congress did that by mistake if preexisting laws lead to preemption congress would have said so they expressed it in the next thing is as far as the burden of proving the numerical analysis again congress defend it hasn't addressed the issue of the relief sought here isn't money it's that we don't know your so we're going to be over the remember maybe later for every employee well we know they laid off mr christmas and everybody at the yard where he works i don't know if there were any other employees and as far as placing the burden on attorney general act and these are fines it's a private attorney general action and to conclude that we're interested in money losing the capital isn't isn't the basis of our system the purpose of the private attorney general at well is to encourage attorneys like me and clients like mr christmas do you get from the money that you collect everything i'm entitled to under the law you're all right and what is this because suppose you collect five million dollars how much do you get another state of california the state of california gets seventy five percent of it you know so a lot of shame to that that's what the law i'm not saying you should be ashamed of and i'm asking a question i'm pretty sure that the defense counsel isn't here out of the goodness of his heart he's paid i think it's entirely fair that i be paid too but that's not what this case is about this case is about a corporation that ignored a nine hour