them after the district judge concluded that they had removed this action from california state court to the federal district court based on a fraudulent joinder theory that the district court believed it was objectively and objectively unreasonable right recognized and the dollars is rosenfeld as part of the analysis of the attorney's fee issue the court can review the merits of the remainder order but i think you know there's not very much money involved in the attorney's fees or why is it worth your liberty it is all the way up here when the remain and the underlying issue that's off the table when you hear your honor the issue of fraudulent jointer and is the proper standard that's being applied the district courts across the circuit are split frequently not required but it's sometimes a defendant in law suits and would like to be able to exercise its right of removal in certain cases when they can meet the statutory criteria i've got it so at least in your client's view this case is worth more than what's actually an issue and in the know there's more to stake here than just a twenty five hundred dollars yes or twenty seven hundred we would not be here for that just for that so if i could if i could there's a main points one is that the fraudulent joinder issue the split of authority that i want to address and how that's decisive and they all come here the second is i'd like to get there i'd like to dispel once and for all any suggestion that my colleague who was defense counsel in the proceedings in the district court below somehow intended to deceive or to mislead the district court and that that that provides an alternative basis for a from its which the police had argued in their briefs and in this court it looked to me like judge also mr men b this is judge tolman speaking mr ogletree it looked to me as the judge also was concerned about the fact that your co counsel below had misrepresented to the district judge whether there were any allegations against the nursing home administrator personally and it looks to me like there are several paragraphs where there are indeed allegations of personal wrongdoing breach of the duty of care and negligence and so on so i can understand why judge also was concerned about what counsel was saying so you know i think it was a definite dispute over the definition of meaning that word no specific allegations as a as a mr as a and complaint in paragraph of the complaint but where those paragraphs contain no specific allegations as we contend stating a cause of action against her that's those are not specific allegations that i think that's where the district court and  my colleague mr each other i'm not of understood what you just said but it looked to me in reading your reading the complaint here against your client that there were several specific allegations against her if specific allegations your honor means that they've directed her a paragraph to her by her name if that's what the district court understood to mean i'm looking i'm looking at pages or whatever and well of the point of complaint the just in the removal petition and in the opposition to the remaining motion was that these particularly these these spate paragraphs they yes they they mention the administrators by name but there's no specific allegations  specific allegations we mean facts and other words and each paragraph yonder it complain identifies a provision of two particular regulations and it just pleads it's clear pleads that as the administrator mr rhodes had duties under that's allowing the injury suffered by a group thrower to occur armed with a look at paragraph forty six because i think that's a pretty thing or a forty six accuser of failing to properly conduct a pre admission personal or telephone interview with ms ro position which is required by the code of federal regulations how much more specific does the allegation have to be was going to be created by the regulation and the allegation here is that she never made the phone call so we wanted to get points first of all imposed on nursing home administer years and she's the nursing home of minutes or so how much of the what when where how and why more do we need to two to two responses one is that the particular code section standard the judge also i'll minded the other courts of followed i would concede that one of the problems with it it makes it virtually impossible for and it's fraudulent on your theory based on inadequate factual pleading for that removing defendant to be able to reach to meet the test and the reason is because even if you could show in theory even if you could show that the resident defendant there was no valid cause of action stated against the resident offended even according to under that it was obvious even under the settled rules of the state under the test that was applied by the district court below that still wouldn't be good enough because you'd have to go further to demonstrate that that there could be no future potential allegations that in an amended complaint with the plaintiff were granted leave to amend will you c de that there's a difference in arguing that the statements that judge tolman went through from the complaint don't your count count co counsel bolo told judge also there were no specific allegations our reading of the complaint indicates that there are whether there are sufficient under the seaboard standard or the also standard is another question to argue to the judge also that there were no specific allegations because that is the difference between this case and the johnson case the johnson case simply identifies mr rhodes says there are no specific allegations and part of the underpinning of your argument that you did this in good faith your client did is that you relied upon what happened in the johnson that's exactly right that's what made judge all subs questions about specific allegations and his concern about it so important you know and i think it's important i would say but my respond two quick points one judge tom and my in answer to your question i was simply trying to explain to what the argument that my colleague was trying to make and i think that as i read the transcript from the hearing i that he didn't have to go to the next stage as judge hawkins was was articulating a speculating she had specific enough allegations before him in paragraph forty six for example that he didn't have to worry about whether or not we were speculating about potential liability she was being accused of failing to to meet that duty which is this that was going to regulate and i on that point your honor i think complete theory is it's negligence that failing to talk to the patient's doctor to find out what her specific medical problems were in order to determine whether or not she could safely be admitted to this nursing home facility based on whatever resources facility that's the purpose behind the regulation right for that please give me an admission interview so assuming that that's all true and look you know the complaint why wouldn't that be sufficient under california general negligence law to find a nursing home administrator while ball because as i understand it she she died from injuries suffered in  fall in the nursing home and the plaintiff theory appears to be that she should never have been admitted to the nursing home in the first place because it wasn't appropriate to saudi for someone suffering from dementia instability perhaps all the other the facts in my question all come from a complaint but what's missing here is so was she if she didn't speak to the physician or she didn't screen or interview screen that the patient what is it that she should have learned before that would have that would if it was not a suitable patient for admission five bottom of this goes to exactly what your point just on it says at the bottom of the order page try this exact excerpt at the record extract page five it said furthermore thrower successors allege that rhodes failure to conduct a korean mission interview with rowers dr phil you to properly screen threat would you ensure the facility could provide adequate care and failure to update the assessments as frequently as necessary to determine the specific interventions that should be put into place to prevent thrower from suffering falls constitute a neglect that cites paragraph twenty eight of the complaint but when you go to paragraph twenty eight of the complaint one of the first two parts of that the allegations about the prescreening in the admission they're not there it's not what it says it says nothing of the sort you know i want to get back to  met a ruling defendant should be entitled to remove their case and he even made i think even made the point about since i think the effect of if sitting be such a piece the bar should be set so that there's a fear of of removal except in all but the most obvious cases off the mean there should be it should the balance should be struck that you know that there's cases that should be removed and i think that's a perfectly satisfactory answer and you need do nothing more to supplement it writing let's hear from the other side thank you your honor and well we've taken you well would subject her to liability both under negligence and other be standard very specific allegation that she violated regulations and that they caused injury i'd like to address the misrepresentation from counsel that there was no allegation of causation there are specifically paragraphs forty five and forty eight and at paragraph forty five  that her breach of duty relating to admitting only those patients for whom it can provide adequate care and the court touched upon that counsel chuck touched upon that and said there allegation and that's exactly what judge ruled oral argument in his order he specifically ruled that there are allegations so we don't with all due respect we don't circumstances it was on the reasonable to remove this case to federal court and when counsel looks at a ruling not only from a federal court but a from the same judicial district as this case and sees that another judge in that district has determined that the join understand the distinction distinction and i except the distinction but a lawyer in practice who looks at it tasted cited by a colleague and i take it was and it was prior in time fraudulent how does that how does that position become one recent oval i understand the arguments that were made and whether there were specific allegations or not and the response may well be well there's detail in one complaint and not the other but to institute the removal that's the point in time we're talking about right yes your honor so two how could it possibly be unreasonable to rely upon what a colleague of this judge people said in seeking removal turner and my answer to that question is it's it would not been a total requiring farm johnson it was in reliance on ignoring the allegations of the complaint and objective reasonable attorney with look at the johnson case and say that the basis for that the decision that there were no individual allegations against the individual nonresident the fund in an objective reasonable attorney would look at this complaint and say there are specific allegations and that's exactly what judge also ruled and recognised and the fact that they continue to argue that there were no specific allegations even though i objective really reasonable attorney would have seen that at the outset that there were so large what so angered judge also are you telling us that even though at the moment of removal of counsel and his or her client is acting objective lea reasonable that there that their position can become objective really unreasonable by virtue of the arguments that they make in front of the court no i believe that the argument they make in front of a court after the fact indicates that it was not objectively reasonable at the say that they removed the case listen i think what we need to listen i think everybody up here on the bench wishes that co counsel had simply said there's a difference between these two i understand there's a difference between these two complaints but even with the detail it's not sufficient under a twelve the six day under or something like that would have been a perfectly reasonable argument but my concern what your case that supports that and my answer is no your honor it does not become an reasonable after the fact the arguments being the case that it was under equal at the crime argument do not  dance around it argue the merits that danced around got into semantics about what does a specific allegation that is not objective really reasonable it's not objectively reasonable to just removal reasonably but loses example of yeah or in a hypothetical way change the facts of this case that would make the seeking of removal reasonable at the time of filing but becoming unreasonable thereafter yes you see my my concern is is under the standard you are articulate i'm concerned that any time council is wrong about some underlying fact their decision to seek removal isn't reason only the stand to apply to avoid that problem that i'm thinking this out could the basis for removal have to appear on the face of the complaint or on matters that are  if it's not in the complaint then i mean council can be wrong when they remove something but it appears on the face of the complaint that matter is not removable then it's not removable doesn't change the fact of what the allegations were so in this case there is clear allegation that a non resident defendant is specifically liable and that's what makes the removal unreasonable and then if we get to the standard of fraudulent jointer that's standard is clear in my community well if there is no possibility that the defendant can be liable under the allegations of the complaint and here the court itself judges your honors have themselves pointed out to the pick allegation that she violated regulations which under the california case thought the normal person by their case the violation of a regulation entitles the plaintiff to a negligence per se jury instruction and constitutes neglect under the other  act so it cannot possibly be argued that there was no possibility that cause of action was needed against miss rhodes so under both standard approximate join standard objective really reasonable standard they don't meet either tax so with if counsel for grand care had come before a judge also up and said we're here today because we have a case that is remarkably similar to a case that your colleague down the hall just heard and determined that the jointer of the specific individual was fraudulent and therefore the case was remanded and although that judge applied to what seemed like a rule twelve the standard we're here to articulate a little different standard and the same result had occurred with the removal have been under reasonable yes your honor because there were specific allegation in the complaint against the defendant the individual non resident of time and that's roads that establish liability there was never any question that there was some sort of failure to state a cause of action allegations so it doesn't matter what they argued in front of judge on the it doesn't matter that according to the judge also they they misrepresented the allegations of the complaint what matters is is that they ignored the top of the page where judge also was quarrelling with defense counsel's representation that there were no allegations in the complaint against rhodes at all and then judge also goes on to say after detailing the allegations that defense counsel then repeatedly asserted that any duty roads owed was not owed to the nursing facilities patients but rather was owed to the building and i'm just wondering if judge also please just set up with with counsel at this point who seem to be combative and vacillating and in judge all sub you misrepresenting the record and that that might have led the court to conclude that if that was counsel's position then the removal must have been or the remand was a was appropriate yes and i have no doubt that judge was was fed up i was that one of those hearings i was not at that hearing i have no doubt in my mind that he was fed up with the fact of council and there it's representation  pretty much of a long shot given the arguments made by the council below not to these council but by the council below recognising that it was a dead bang loser for removal unless the allegations the complaint here seems to me that the argument is that even if you apply judge the board standard this case is so unlike johnson that no reasonable lawyer would have said well i'm going to win this in front of judge you moron and that's the point and honor articulated it much better than i have for the past few minutes is no object reasonable attorney would have removed this case unless you just simply ignore the applications of the complaint and that's the basis of this appeal that was the basis of the improper removal and although judge alsop was you know frustrated and probably even angry with counsel for its representations it goes back to the fact that he ordered  because he believed that there was a bill objective reasonable basis for him to vote and there was no fraudulent jointer though the fact that he made them angry i don't think you know i admit he was i don't think that affected his or i believe it goes back to whether there were grounds for removal and there simply weren't in the k you're not seeing the clock what i'm saying we've just taken use lightly over time why don't we have the other side to minister respond thank daryn thank you your honor i'll be quick your honor you asked a question earlier during your colloquy with mr mehdi about the timing of the two orders the johnson order was issued as according to my notes november ninth twenty fifteen the removal came one month and two days judged the complaint cites the various statutes and regulations governing the licensing and certification of nursing facilities but does not identify authority demonstrating how these regulations render a non clinician administrator personally liable for stub standard care he continues even assuming such a care or cause the injuries when we go through the paragraphs forty to forty eight of the complaint and as mr medley said just a few moments of them my friends and opposing counsel said that see it depletes causation well what it says when it pleads causation has a one sentence conclusory statement right then what i want you to understand is is that the thinking behind this was that a conclusory allegations under the under the settled rules of the state of california which require facts pleading facts not conclusion that that was insufficient it didn't meet the standard that you go back to the hypothetical that i asked of the last time you were at the podium yes about the correlation between the failure to conduct the prescreening interview the failure to talk to the patients doctor therefore we didn't know she suffered from all these infirmities and we should have been taking special care of her to make sure she didn't fall and then she falls how much more do you need to allege in order to permit a reasonable jury to conclude that that or that established negligence i think for me are the theory behind the removal on that onion into the construct that you fret is there must be some link between your simming that there is a connection was there some information she would have learned that the conclusion would be that she should never have been admitted to the facility in the first place because it didn't have the appropriate facilities to care for her and if there were an allegation in the complaint that pled those facts that mrs roa would have learned from speaking to the doctor about it but screaming that in fact there was there wasn't a proper staff available they didn't have the right resources they couldn't care for it i understand of those searches but they allege all that they allege they allege that the staff w inadequate that it wasn't adequately trained that it was inadequately supervise but no one is alleging that it's all in the complaint what i'm trying to say to us is and i'd argue the argument which we were making was that you need to be able to demonstrate from the from the interview what  are actually i don't think we're all entirely applies here because remember we go back to the mccabe test you look to the settled rules of the state to determine whether cause of action the state so we look to california i mean but our california pleading rules even more liberal than the versus thrower now submitted for decision thank you