is whether the district court erred wanted to clear in the prior homeowner a fraudulent lee joint defendant and deny ellen man and one management's motion to remand the state court did you ever serve that defendant i couldn't see any evidence in the record that you either served or going to the district court what efforts were made to effect service prior to the expiration of one hundred twenty days period under the rule but your honor at the point that it was remanded time to serve remained and i will get into that but the bottom line here is what's the answer my question if there were there has not been service but there why didn't you serve i don't understand this practice of naming defendants but then making no effort to effectuate service  process in this case your honor it turned out that the mistypes in the prior home or had passed away at one point we did a suggestion of death to the court that was rejected proper and that but at the time they would not allow us to do that the court would not allow the substitution that's correct why couldn't you just serve the state i don't understand why you would need permission well your honor at that the point the issue is as we when the when the case was removed there was still time served and any actions taken rather my question was did you ever serve and i think we i think i hear the answer is no we didn't we made attempts and one of the issues that we're going to approach is once this is remanded as it should have been we would have we will move to extend time to serve and serve the a state however with when it was removed and waiting for jurisdiction because there was never a diversity of citizenship they lacked subject matter jurisdiction on twenty eight u s c fourteen forty seven c as the as was stated in re amoco petroleum at additives held in group of data flocks versus atlas global group l p five forty one us five sixty seven it has long been the case that jurisdiction of the court depends upon the state of things at the time the action is brought again at the time  removal the time to serve us all and i'm started to stop you but i am still confused by your answers to my question as i read the record it looked to me like judge me and didn't rule until two months  after the time to serve dies on had expire but your honor he didn't even have the jurisdiction to rule what he should have done counsel i asked you earlier first whether or not you made an effort to serve women and i thought i heard you say to me that the that time remained to effectuate service when the district court entered its order but that's not what the record shows is that you know your record shows just the opposite that the district court didn't rule until at first while you were given notice under rule for him by the clerk that you either had to serve or you had to explain what efforts you'd made to attempt to serve and you filed nothing and response one hundred twenty days passed and then two months later the district court denies the motion to remain isn't that the timeline here just to clarify i don't know is that the timeline or not that is the timeline however the court didn't rule until after your time to serve either guys on or the estate had  or that you can look at whether or not there's diversity jurisdiction at the time that the court enters the order caterpillar that is that is around a bit at the same time and why shouldn't we affirm on the alternative ground this  brown that i'm questioning you about the because because that would set a precedent where all a court has to do is wait one hundred twenty days and if the party doesn't serve that's not what happened here you were warned when the clerk issued the for him notice before the expiration of the hundred twenty days that you were about to run out of time and that you still had to serve and you did nothing you had fair notice but you ignored it while you're on it because that the court didn't have the power to issue those orders at the time of removal they lack subject manager stiction because of diversity of citizenship which has been established in weeping hollow and without the power to to make those decisions they couldn't have made the decision that we go back to the point where at the time of removal is  subject matter jurisdiction is determined isn't the question though whether is a is it dies on is that has pronounced whether dies on was fraudulent we joined that is the question and isn't your failure to serve dies on or dies on state good evidence or fraudulent join no it is not because when if it had been remanded we still had an opportunity to serve her and we had to wait for the the court to make its decision even though you've now conceded the time to serve had lapsed and book but you're out of it because we were it was moved over to the to the federal courts at the time of removal the the dies on was not a fraudulent joint defendant and as such the court should have immediately remand it and at that time the state court could address any failures to serve and you can you can help me out by going back over again in a way that maybe fills in a detail or two you said that screen and you need to substitute in as a defendant her estate which makes her sastre pressure and then you said something about we saw at the court's permission to do something now first off which court of as a defendant at that point yes this does the district judge give an explanation as to why that's the mind i do not recall off the top of my head what the reasoning was and you now have a name to defendant who is deceased and you been remanded as was required under under the rule we would we would immediately move in the in the state court to amend which is it's given liberally we substitute the real party in interest and then we would move to extend which  were moved into and you know what point she died i do not know i do know at that at some point after we filed our complaint it came more attention that she had passed and that was a mistake i see but in she may have died actually before you filed a complaint she may have i don't  have the death certificate from me so i think you mean we can look at the docket and figure out what the timeline is from the fact that he filed the motion and then we can look at at the motion yes you know we can get all this evidence wasn't apparent from your briefing which is why i'm now asking these things no problems why don't we hear from the other side we've taken you slightly over time but we will give you a chance to respond thank you anders the morning around is a may please the court and rejects for wells fargo the arguments is excuse making conflicts very squarely with both weeping hollow and caterpillar versus lewis for reasons your honour's have alluded to three questions let me let me at least get something that i think we can clear some of the underbrush but yes that would be the same thing your honor absolutely and none of it happened in this record which is why we went and at the time of the removal time was available still to serve whichever defendant was the right defendant absolutely your honor and the court gave it so at the time of the removal there was no fraudulent jointer at the time of the removal no that we would not agree with that your honor and our motion below was that it was fraudulent also why would you not agree with that at the time yes your honor that at the time of removal was effected below wells fargo filed a motion asserting that there was fraudulent joinder because under an r s forty point zero one zero there had to be at least the possibility of a claim being brought for there to be a you lose it or we've  two arguments i mean you're out of the first one your honour's question the answer yes or no was there fraudulent joinder at that time at the time of the removal service was still possible we believe there was for an argument that was later rejected and weeping hala yes so you say you caterpillar versus lewis it was erroneous it was an error in the district court to retain jurisdiction and that is all that would be established where the answer to my question that the question be otherwise would be an awful lot easier if the district judge dismissed  that it was for that reason in part well but he didn't say that i read the judge's no no absolutely just letter he didn't come out and say that he did issue an order saying it will occur but he never did and what he did say was i just dismissed for fraudulent joinder at a time before we've been hollow had occurred and also the complaint in this case was different than the complain and weeping hollow necessarily i mean there are different complaints and in this complaint they pleaded that it was a former owner and they didn't assert in any way that there was a claim that could be brought by the former owner they don't they went out of their way almost in the pleading not to plead it so i'm not sure is your argument then that even though the district court may have erred in its fraudulent jointer conclusion we may still a rm on the lack of timely service i don't respectfully with the exchange which fletcher i don't agree that under an r s forty point zero one zero that when a complaint doesn't say the former owner might assert a claim that that is a proper defend alternatively affirm the lack of time we serve yes your honor the lack of timely service and i think to me analytically the lack of timely service does create fraudulent joinder because if for example they had filed something at the start saying i subjectively intend never to serve dies on that would be fraudulent joinder going to i think the premise of judge hawkins last question and i think that's right they showed no intention to serve dice on what we don't have a case that is mere failure to timely service have voices fraudulent jointer per se no but you have language and weeping hollow where the panel strongly suggested that if the time had elapsed that fraudulent jointer could then be found ok and so the panel has given you the bridge t t it was pretty clear in that panels thinking that that was so and this case went on to be litigated for three years and ultimately resolved in your client's favor on summary judgment correction or so that's why you're citing caterpillar writing  caterpiller you had a much stronger case for the application of the dr because in caterpillar you had two and a half years of litigation with a nod to first defendant here here you had essentially no litigation with the additional defendant who could be argued to defeat diversity and they were never interestingly after the born valley opinion came out the panel was immediately confronted with a motion saying you have no subject matter jurisdiction because in born valley look we had this non diverse defendant who was johnson who by the way was also deceased and the same panel that came out unanimously with the weeping hollow rule was unimpressed by that and found no lack of subject matter jurisdiction in that case where there was the presence throughout of the deceased none served defendant johnson so that same panel rejected that logic when it was given the opportunity good cause which is the thing lacking here if you have a deceased defendant you get to come in and say gosh that's good cause i'm going to have to seek substitution under the applicable principles of law i'm going to have to seek to have someone named as a representative of the estate and it's kind of an exercise in victim blaming to say to the district court gosh you really messed up district judge when there's nothing in the record saying there's good cause and i've never asked this before in an oral argument i can't find on the face of this record any request with my record materials to ask the district judge hey i've got a deceased person i've got to go through that extra hoop jumping to do so as your recollection that that never happened i don't see it on the face of the docket it's not in their briefs that's an unfamiliar suggestion but the right thing to do is to say there's good cause and the court invited that by order which is what rule for asks judges to do and caterpillar is really very clear about the importance of speed in dealing with this i think the judge below is to be commended for trying to deal with it rapidly and upfront issuing an order saying please go ahead and serve or give good cause and the policy purposes  caterpiller that that entire scheme is there to serve is the purpose of quickly addressing the issue this district judge did that and does not deserve to be reversed for that reason so can you so your recollection was there was no motion filed with  counsel when you said you don't understand this practice of not serving the defendant well i'd like to suggest you reason for the practice of not serving the defendant because i litigate a lot of these cases i think i know i think i know where your rights are there for closing people out of their homes and they don't want the person in the defending arguing that the foreclosure sale was inappropriate and every single word in their papers about how necessary and important this party is is exactly why it's fraudulent joinder is that because under a new about a law they would then have the opportunity to contest the commercial reasonable bid price for the sale but they wouldn't have the liberty to argue for the constitutional deprivation just like wells fargo has done in many of these cases but to say that they're super necessary the court agreed with that argument that it would set aside the foreclosure sale would it was good to quiet title it creditably in favor of either the bank or the property yes but it's a form selection rule on their part because the state courts are much friendlier to these claims in this court that statute  unconstitutional so they'd love to be able to name a defendant collusive lee and then throw the case back to the state court where they usually win without having to litigate it but here they didn't serve her and as they say in the old days it should kind of not lie in their mouth to say how important this party is when they go to such lengths never to you want to answer that question which question is that did you ask the district court yards it is my recollection that we did that if if if my recollection is foggy idea regardless i would that's a pretty powerful thing to not know what you want it is my record of that with all due respect or honor that we have probably upwards of three hundred these cases it is my recollection that that didn't happen but regardless i'm going to tell you this is an individual judge if you do not supply this panel within ten days the the precise docket interest and transcript if there is one that shows that that's happened you've got problems yes your honor i concur stated that they were done that judge mehan was denying it based on fraudulent jointer not rule for am not based on his his order to serve solely based on fraudulent join question for you that it's not intended to be facetious you claim that the district judge had no jurisdiction because there was no fraudulent jointer yet you tell me that you moved in to in front of the court that had no jurisdiction to allow substitution of the defendant because we had  choice at the time he had and at the time there had been no order so therefore until he orders re manned or makes a ruling on the motion remain and we have no other choice the next case on the argument calendar and it may take is a minute to set it up is a telephone argument graham clear and marine mariner health care versus thrower