there's a lot of briefing on this in a lot of extraneous issues i think that have been briefed i think the case really boils down to an issue of federalism because in this case the lawsuit was brought in in the state of michigan alyan county circuit court the case we filed an amended complaint where we added the f d i c and we served the f d i c pursu michigan law the f d i c did nothing for months they went way beyond the time period to remove the case under the thirty day time period or the ninety day period they were still late they ultimately root removed the case at the at the very time we were sitting in the court room scheduled for oral argument on our motion for judgment to have that default converted into a judgment against the f d i c we were sitting there ready for oral argument and the judge came out he came in to the bench for oral argument and the f d i c came into the room and removed the case to federal court at that time by providing the court with their notice that was filed that very morning so that's what the case comes down to i think is whether we properly served the f d i c under michigan la ok assuming you did and assuming that the removal was on timely it still is a judge younkers court and it's my understanding that the removal procedure is not jurisdictional that it's a procedural role and therefore a defect in the removal to a federal court does not deprive the federal court of jurisdiction judges younker granted the motion to dismiss on the merits if you follow all that don't we go to the merits and see if as to his ruling on the motion to dismiss was was proper and  many times i think he had to heat in order to get to that point in order to get to the merits as you describe them he had to do some some some legal gymnastics to determine that the case was properly removed  defects they're procedural defects do you agree with that or not i don't think we get to federal court unless they properly remove the case we can we want to know you're saying that they are  removal deprives the federal court of their jurisdiction that's your position correct they had i don't think the case to say that that's all well i say that in order to get to federal court there's there's ways for a defendant to get to federal court which is they file a timely removal if they don't do that we're not in federal court we're still in state court well you're not supposed to be in federal court and you have defenses of being in federal court which would he entitle but does the federal court whether the federal court has power at that point is i think is the key to a case that's all well i think we can be in state court we don't have to be in federal court we chose to be in state court and  eleven says the michigan courts have concurrent jurisdiction to decide federal case claims such as rico michigan courts or courts of general distinction under ireland first tunis we can be in state court so in order for the it's very linear for him to decide the air the issue on the merits where he ultimately got to in the end his first bit of analysis was whether removal was proper and he had to get past that hurdle of service and i think he had to do that and i think that was linear he recognized the end to do that in order to get to the merits of the case you can argue any way you want but i'm kind of with you that i think the service under michigan law was proper and the removal was not timely and that i'm i'm over here ok really on the merits you may want to argue improper service timeliness or on time with us to my colleagues but at least i'm with you there and out and that my that comes down to issues involving assets of the f d i c and it was our position in this case that when the lawsuit was filed and when the f d i c was brought into the case under the rico claim they have already federal court is there any reason that the district court should not go ahead and dismiss well i'll concede to you certainly if that's if if we're in then i think i have a problem i got a problem in in terms of that statute you know we but i don't think we get to their first because i think the district court erred in in its reasoning in terms of saying that the case was properly before it and that it had jurisdiction is in order to consider the applicability of the stat sheet is it is a necessary to that that the district court have that cases properly before that i believe that yes the answer is absolutely and i think you see that in j reasoning in terms of why he had to first deal with the issue of service seating and deal he had to deal with that otherwise i had a motion for remained in front of them which he didn't deny it is moot but he had to get to the issue of how is the case in front of him in the first place and his analysis deals with that very issue that you're talking about his analysis says that because service was improper it was his conclusion under federal rule for therefore the remain and was timely that was his analysis that's how he got to the issue of the remained in front of if he rules the other way his opinion would have been much shorter he would have said remained as not timely as he did ultimately in the end of it maybe he was just doing a comprehensive opinion it was he was addressing all issues raised even though he could have written a shorter i don't know we don't really know i don't know why he did that way but i think in order to get to the conclusion he got to he had to deal with the issue of service and i think he was wrong with all due respect an issue of service he they were properly served under michigan law and that's what's important and i believe his in state court to go to the state court judge and argue there is should jurisdiction raise their defense of jurisdiction the problem i think with that in the end the f t c does have a very big problem and that is that they're under default in the state court they sat on their hands they did nothing they they were defaulted they received notice is a default a motion to convert that default into a judgment they did nothing other than remove two federal courts so they got a big  the no that issue i believe that issue was raised in one of our briefs to the district court we did raise the issue where we said that the  like ok thank you argue removal was untimely here so in other words this isn't a situation where where removal comes first in the analysis the issue is whether any court would have subject matter jurisdiction over this case it's that say the same thing i'm not aware of any of any case which is held certainly a time in the recent past that whether removal is timely or not goes to the jurisdiction of the federal court rather goes to jurisdiction jurisdictional defects and removal are was there diversity jurisdiction or was there federal question jurisdiction something to get it inside the federal courthouse the issue here is under section eight hundred nineteen b two way any case to which the f d i c is named as a party that entire case is deemed to arise out of the laws of the united states which creates a federal question jurisdiction under twenty eight u s c thirteen thirty one so there's no dispute here that judge younger had the ability to make the decision they did make because he had original jurisdiction over this case which by the way also contained rico and fair debt collection practices act claims so there there was a before the f d i c would then be required to litigate those claims and as i mentioned section eight hundred twenty one d thirteen d says that except as otherwise provided in that section in other words unless and until the claims process is complied with no courts will have jurisdiction over any claim or lane to any act or omission of a failed bank or the f d i c has receiver failed bank and in this situation there's no dispute that the that does matter to the duty to exhaust that the case filed here was after the f d i c sold those properties that does not that does not matter names are based on the conduct of the receiver honor and that goes to the earlier issue that was breached below counsel pointed to the language of eight hundred twenty one indeed thirteen d little i would stalks about claims relating to assets that are you know the changing of ownership matters does not matter with respect to whether they need to exhausted the claims process claims against the f d a series as receiver there's been litigation in this court and elsewhere over whether that is relevant to any claims that might be pursued against third parties for example the city of oakland decision there are issues as to whether the  lawsuit how does eight hundred twenty thirteen d treat post receivership lawsuits like this one this court sends a period versus boyd that no court can acquire jurisdiction after the receivers appointed unless the claims process is complied with in this case you know what with the claims process require a claimant to do really two things one is commence the process by filing in the history of claim with the f and then secondly in the event that the f t c disallow their claim then the claimant would have the right to file a lawsuit against the f d a on their claim within sixty days of disallowance in one of only two specified courts either the twenty one d ever give a state court jurisdiction over a post receivership lawsuit like this one in this situation talking about the two step claim process i just described the dearness has never got to step one they've never filed a ministry of claim based on alleged extra emissions of the f d i c as receiver as opposed to the actual missions of the near bank and so no court state or federal has subject matter jurisdiction over the claims that the dearness has brought against the f t c in this lawsuit that goes to my second point which is because no court could ever hear the merits of these claims issues of federalism federalism is not the issue here this is a situation where congress has spoken it doesn't matter whether rico claims as a general matter can be heard in a state court whether any other type of claim be can be heard in the state court because for the specific claims on this appeal which are claims against the f t s years receiver congress has answered the question it is withdrawn subject  court state or federal unless and until the claims process is exhausted and we believe that the third circuit got it right in the case that we discuss in our brief facts very similar to these it was took the case and said we understand there are these procedural issues that the parties are arguing about because really all the district court had talked about was for mobile the court said well even though the district court didn't talk about it we need to address because it's our obligation to address subject matter jurisdiction and the court found as the district court found below that the plain language of section eight hundred twenty one d thirteen d requires exhaustion before any  vacuous act we're just going to direct the district court to dismiss the case and again whether you call it vacuous or not the fact is this court cannot send this case to a court that could hear the merits there is no court that could hear the barents of this case because the claims process has not been exhausted so for that reason we believe that it is not an extraneous issue as counsel referred removal again federalism is not an issue here what congress has dictated to be done with claims arising out of a failed bank receivership is the issue and congress has spoken clearly i also want to address a point that judge cook asked my my opponent about an issue that was that was raised in in their opening brief regarding whether the f d i c gave the dearness as proper notice of the claims process under eighteen twenty one d three i asked whether it had been to the district court you know just that yes that's right your honor i'm sorry about that the answer that it's there was no oral argument as is my point correctly noted and it's not to be found anywhere in the district court briefs this issue of whether notice was given we believe as we as we argued that it's been forfeited i would also i would only add as we as we've argued the case law is clear that a failure to give the notice does not excuse the claimant from complying with the claims process and plus there's no determine this is this is this is a case where the dearness is knew about the claims process exercised that then but they haven't exercised it now and that means that no court in this land state or federal has subject ma thank you to answer your question to which cook i i did not see anything in the lower court regarding the issue of whether notice had been properly given and if my recollection  is correct that it did it was not an issue that was raised in the district court i think it was only after that after that through through the process of this appeal that we learn that the f process and the sorts of claims that could be brought under it well i can argue with you that they had knowledge of that as to premier bank that would be correct if it is true then a rose as to what once there was a discovery took those fraudulent documents and sold them to amos financial that happened that actually happened in real life that's not the erotically f d i c knew about it didn't care about the fraud they sold the documents process was never given to the dearness as and therefore they didn't exhaust administrative remedies as to the f d i c are because notice was never given to them that's how we get to the point where you know a long way of answering your question that yeah they didn't they didn't go through the claims process as to the f d i c are related to claims against the f b i see still we think it's very important