good morning in may please the court the district court in this case issued a pre filing injunction it did so without notice without a hearing without evidence to support sudden junction without any findings in support of the injunction any of these four issues alone requires voc a tour of the injunction all four of them combined certainly did but there's a threshold question this court must st issue which is whether the from filing other cases in state or federal court without st seeking the dish the court's permission this court in other cases i said that's an injunction that's how we get to heaven jurisdiction here said so that strikes me as a straightforward question the nd question though is a little bit more interesting why you would agree with me i would assume that we do not generally have if there isn't just a denial of a motion to remain and to state court we don't have jurisdiction over that right i agree with that absent the injunction that would be absolutely correct so why does the injunction transform an otherwise unappeal interlocutory appeal and a challenge has been made in the district court to whether the case is properly there the court must st address the issue of whether the court case should be remanded to state court and why is that i think there's probably a couple  good reasons for it st you know extrapolating from cases like your gas and sign a cap and there's some threshold issues you always have to address and before we started dressing on the merits of injunctions there's a we always have to s the threshold issue of was it properly before the district court at all so that would certainly be one route but see that's not normally we would do it right normally we our question would be is there a final decision under one thousand two hundred and ninety one dollars that we can review right and it could be totally wrong that the dial to remain to stay quit could be completely wrong but normally we would just say not a final decision congress has not vested this court with the jurisdiction to reach that question i suppose maybe under mandamus we could do it but junction other federal courts the nd circuit in particular the m t b e case has reached the same result so i would point to both this court's precedent and the present other courts that always mustn't once you're up little easier there was no this allegation of diversity jurisdiction no allegation of federal question jurisdiction no allegation of federal officer in the rock case the sole basis for of the removal there was simply it's related to the tip case that's already in federal court this court has said time and again that factual interdependence is not a gateway to federal court is not a basis for federal jurisdiction the energy management case in particular is quite the best example of a one room without one no one had filed an answer yet and we just non student well care and so they're out so eleven days into federal proceedings there is no longer and a large federal officer so the question then becomes a was there a proper federal law was it a proper federal officer removal at all and then be even if there was and we don't think there was what supplemental jurisdiction properly exercised in this case if i could i'd like to start supplemental jurisdiction because i think it's probably the easier path given where this court is right now in federal officer and the upcoming on bank argument i would suggest that we may not need to reach the federal officers issue here explanation so it has never either and the hearing or anything in writing told us what the reasoning is he just said the motion to recommit is denied and in clear that when the basis for being in federal court is gone very early in the case when nothing of substance has happened when the fact both the statutory and common law factors are met it's an abuse of discretion to keep a case in federal court under in that situation that's where we are ordered the submission of some documents we have done that there is no another hearing set for september th coming up but to date nothing of substance has occurred other than the dish report vacated the t r o that was granted by the state court here once well care was gone even if it was a federal officer there's no basis for so it's an abuse of discretion for supplemental jurisdiction to be exercised here if you disagree with me on that and we have to reach the federal officer is shit well a federal officer or are they acting under a federal officer the answer to that is no the best authority i can give you on that is judge boggs's opinion from the th circuit in ohio state chiropractic association versus humana health plan where he looks medicare they get a lot of freedom in how they handle that business how they do that business the insurers in that case make their money by being able to provide the services for their insured for less and they get paid in a lump sum for that insured by the federal government but the whole purpose of the medicare advantage system under part see of medicare a lot of it part and part b is it's not the insurer providing federal benefits rather it's a private market solution that the government has created on it last week and in st charles it held that blue cross blue shield was a federal officer for purposes of feeding on the federal employee health benefits act because their blue cross was essentially hired by the government to administer federal benefits for federal employees and the else is this court provided was that in that context blue cross is not a risk bearing entity it's not acting as an insurer at all it's simply acting as a claims process or processing claims the way that a federal employee would have to but for the government contracting with blue cross we are not in that situation here so i would submit that under federal officer jurisdiction welfare isn't a federal officer at all if they're on a federal officer the tip lawsuit was never properly  well care and tip of argued that well we had to send you this letter because there are some regulation that said we had to do it first of all the mere fact that they are there's no regulation that said they had to send these letters of issues are the regulations that govern marketing and other guy was sure there are but the mere fact of regulation and federal guidance that's what supreme court and watson said is not enough to become to close a private company or private actor with the adornments a federal officer status that doesn't get there there is nothing in this record that they can show you nothing in this record well a federal officer via communication regulation or otherwise required that this the season desist letters that issue the sent but that really gets more to the nd issue of if there are if will care was a federal officer did they act under color of office in this nexus narrow broad we're not going to get there on these facts but i don't think this court needs to go that far down the road i think under supplemental or the threshold issue a federal officer status at all the prior prong this case can be decided more lawsuits against the same people without coming back to me it sure sounds like an injunction to meet i mean do you think integrity it could have after the order filed claims directly or indirectly in courts or with agencies in the state of texas without the express written permission of judgment use could could they have done that no they could not have your honor in what could they not have done that that they couldn't because of the court's order but the court's order how many more lawsuits they want to file  in paragraph twenty one dollars of their consolidated complaint they specifically referenced the fact that while he and this is only discussing case two only the consolidated case two only against mr roth that says that while he was employed at integrity that he was forming this other entity tip to the detriment of integrity that they brought the exact same fact pattern with no change into case two and then what they did was that we had some discovery some state court discovery in case two and they decided that they would list as potential was explained in my motion in my notice of removal and my motion to consolidate laid it out for the judge and it's in the record of appeal so i felt like these were the same cases they're looking at the not specifically about this issue we've had three lengthy hearings in the case and we have another one scheduled at the end of this month in what would be the federal judicial power to join a party not to file suit in the state court the where would that come from yes your honor that comes from in the consolidation that comes from the same fact patterns that they also alleged against well care what before they dismissed the case and the judge and that they all they all conspired together and they all committed grievous harm together for the same exact facts so i'm sorry i'm asking for sources law what would be the  constitutional provision the obviously didn't ask for it there was no motion in front of the district court so where would the judicial power come to enjoying a private party against filing suits in sta i'm not sure where there would be a federal power for that but the case was removed based on the same fact and then subsequent to that the these courts have made it clear including the current supreme court case of carlsb and this court's opinion in sibley vs lemaire that the state district court can maintain jurisdiction over us a case after every single federal cause of action has been dismissed and this is sort of axiomatic federal law present been any further i mean there have been numerous cases discussing this for these cases too and the court decided when it was removed that there was because under rule forty two and under the powers of consolidation for purposes of judicial economy and comity and the same facts the same witness the same issue the courts said it would make more sense to bring them all together in one in one case and that's one judge used it and that's also the consolidation is an abus discretion standard and as a result of the abuse of discretion standard he exercised his jurisdiction exercised supplemental jurisdiction at the very beginning of the case he exercised his versus whole case and that's a very recent us supreme court case and in the whole case they've and we know that nothing of the supreme court writes is pure but they did pull out one sentence from a ten page opinion but the holding of that case makes it clear and that patient volved consolidation in the holding in that case makes it clear that they expressed no view on any issue prior the consolidation and they also made it clear that courts enjoy why discretion in determining whether to consolidate wide discretion in keeping a case after all the federal claims dismiss well care was brought into the case as a medicare advantage entity and it was brought in well care the sided that it wanted to terminate its dealings its contract with integrity its entitle to do that under that regulation it is encouraged to give notice to all the physicians and it is mandated to give notice to all patient enroll leave is primary care physicians and many of the many of the opposition to primary care physician officer jurisdiction to a medical advantage i cite another opinion by judge moore whom granting federal officer jurisdiction to a medicare advantage the cases are all over the top but there was plenty of opportunity for more jurisdiction for both and there was that there was acting under they were acting under medica don't also like to bring up the case of hoover vs morale us in this court in which a district courts this isn't to grant or deny an injunction is also reviewed under an abuse of discretion stan for the same causes a baksh and over and over again and that is also an abuse of discretion to be here in a somewhat unusual position you didn't ask for the injunction the granting of the injunction allowed you know side potentially to bring this case before sentence time and now you're here defending it is it or you indeed defending this injunction at this point yes your honor we were in several court we've had three lengthy hearings the last hear two and a half hours in which we discussed a number of issues we have another hearing set at the end of this month judge hughes is intimately familiar with the facts and the law involved in this case so we believe it's proper and appropriate to keep the case in federal court at this time we don't see a reason to remember there is supplemental terrorist action that's also not abused discretion standard we don't believe that he's  discretionary standards the there are a number of cases that talk about consolidation in which there are common questions of law allegations now in discovery against topical ashes and tipper and i had i really had no alternative i only have thirty days from that point to remove or not remove because discovery is construed as other papers for purposes of removal that's the the mad case and what happens when you when you remove and when you consolidate consulted for purposes of judicial economy it makes perfect sense to put these cases together since they have chosen to conflate the facts against this manhattan and state of ohio versus montgomery versus ruth trail can determine whether consolidation of the proprium the court balance of the value of time and effort saved by consolidation against the inconvenience of the labor expense increased by consolidation is particularly appropriate when the actions are likely to involve the same witnesses and arise from the same set of facts and that's unhandsome versus district of columbia your st with respect to the intersection between hall the hall and will forty two the supreme court in two thousand and eighteen in the hall was crystal clear before consolidation can occur under rule forty two the court must st assess where there is an independent jurisdictional basis for each of the two cases to be consolidated that was the holding call while holding not go on and then decide whether the jurisdiction existed in the two cases it left that for the lower courts on remand hall was crystal clear on this point it no matter how fa factual case as please counsel suggests the tip case in which roth is a defendant to be sure involved our claims that rauf when he left our employ took confidential information with him and then sometime in late seventeen or early two thousand and eighteen use that confidential information to try to lure doctors out of our network and into the network that run by dr plushest that doctor mr all that works with that was going on there as a trade secret to that dr plushest and his company have nothing to do with that nd case or they're certainly not involved in that case it may well be that mr roth knew he was leaving to go join them he may have had some motives related to his new business venture but that involved his conduct while he was still our executive in failing to seek the monies we are owed from a universally this is not the same case in two different case complaints these are different cases which mr roth to be that we did under the texas rules civil procedure for initial disclosures there's been no discovery in federal court no depositions no in a rocket tori's no document quest to date the dish according sort of kept a tight reign on things  actual evidence that's come through the discovery process we are still at the beginning in this case the motion to remain in the tip lawsuit wasn't ruled on for a year after it was filed the motion remained a lot still hasn't been ruled behind and that's one where there's no basis to be in federal court at all we heard reference that the court cases are kind of all the over the place on how medicare advantage organizations are treated for purposes of federal officer two points st the th circuit have been very clear on this and there's no distinction between what was going on in the high ok's in this case it's on all fours nd those cases where the district courts have found medicare advantage organization is a federal officer in the context of prompt pay and there's some property is the one area where the federal government actually does exercise a fair bit of control and specifically says worse appointing state court state law we're going to prop a obligations now there's a fastening theoretical discussion as to whether that should go into the causal nexus problem a federal officer or the acting under prong i don't think you need to reach here because we don't have a level of control necessary to be a federal officer under this court's precedent and with that i would ask that the court vacate the district court's order and