thank you your honors good morning please the court catherine davis on behalf of appellants michael and de martini there are many errors race in our briefing with the court's permission i'd like to focus on three here the district court erred by suicide to mickey as a diversity destroying defendant adverse to himself as plaintiff and then severing and remanding the partnership dissolution claim when no party requested that result as a preliminary matter in the court has requested briefing on this issue twenty eight dollars u s c one thousand four hundred and forty seven dollars d does not bar review in this case as this court recognized in lively vs wild oats this court does have jurisdiction to determine whether the turning to the merits me before you leave guest i'm still puzzled by were we or did the district court make it conclusive or precludes a determination on any issue that in his capacity as a trustee as a plaintiff in a nd a minute complaint alleges that he is representing the interests of the trust in his capacity as defendant the briefing in the motion on the motion to remain made clear that he is representing the interests of the regard to the factors that desert empire and murphy and the other district court cases hold apply in this particular situation there would be an issue of a federal law and at the court in fact did not make any determination substantively on the state law question of whether there was a valid claim that's one of the factors that should be considered but in this case the court assumed right isn't that what power x is all about are you referring to appeal ability your honor don't talk about separate ability to se in that the court acted sewa sponte give us a little more background how how did this come about obviously if the trust is to be part of this litigation then that destroys diversity direct whether it's requests or not the same person can't be on both sides of the yesterday and the plaintiff's move to join timothy is a plaintiff he joined he moved four days before the discovery cut off some thirty months after removal sixteen months after the st amended complaint was filed in which he made the motion timothy made the most so that the court didn't sue a sponte act he was acting in response correct well that's true your honor however in this case timothy made the motion on behalf of himself as plain of seeking to join himself in his capacity as trustee he never a strategic choices in some respects it could be  so what was the district court knew that if it were to grant the motion to a manager to at timothy as a party that would destroy diversity well it's rather it's a curious observation because the party never moved to be joined as a defendant i mean that the allegations in the nd minute complaint and the motion and the declarations of counsel by the way timothy never filed a declaration attesting to the validity of the claim and his counsel excessively disclaimed any personal knowledge of whether the trust has an interest he's the trust trustee of a trust that was administered thirty four years ago and he's coming to court thirty months after removal to make a claim that he ought to be that he ought to now appear in his capacity as pla so it's true that the court may have been tangentially aware of this eventuality because appellant's raised it even process a speculated that this could be a problem but significantly  timothy disclaimed that in the reply brief in support of the motion they made clear we are not seeking to join as a defendant we are not adverse to the interests of the trust have been represented all along in a sort of geisha and that's the reason there will be no prejudice to join or four days before the discovery cut off and so it's true i mean i would hope that the court would adopt you already you said this was a motion of timothy yes i did and are you saying now that timothy says in a reply key i apologize for not being more clear yes he made a motion to add himself in his capacity as trustee as another plane tentative plea and it was repeated throughout the allegations of the nd amended complaint repeated throughout the motion and and in response to michael's argument that this could cause a jurisdictional problem in reply timothy stated absolutely not there is no prejudice to making this amendment at all at the th hour because my interests as individual and my interests as trustee are completely aligned i'm not adverse to myself and therefore the interests of the trust have been represented all along no harm no foul so how do the trust and all the other side of the v well there are two trustees oh well i mean what caused the problem here how do we get this problem that's the question that's hence my my my view that this was a s correct that is exactly correct and it's unclear how and why the magistrate reached the conclusion both sides disclaimed it and that's that's the problem we have a conclusion from  in the neighboring parcel of twelve thousand seven hundred and fifty nine into the remain and and then they're left with nothing they have no mitigation defense at trial they lose summary judgment so this is a foundational error and you know it could have just been a source of confusion i would hope that timothy wasn't so into farias america valley into to create a situation that would check that the court i'm not suggesting that that's the case at all it would certainly help it's not i think it may have just been an oversight  citizen of colorado and he was joined as a defendant that's something else i would like the court to be aware of is that playing have to sting wished i'm sorry timothy distinguished expressly between timothy plaintiff joining timothy plaintiff plaintiff joining defendant james who lives in colorado so if that tract if that track had been followed through we would have no problem but somehow we don't know how the district court maybe just you find the order of the yes it would have explained what the court was doing yes that would be in the st volume of the excerpts of record and that would be one  very big record oh my counsel who by the way both just claimed any personal knowledge of the case just indicated that they had been endeavoring to find out whether the trust may have had a claim and would like to intimate they did not file a declaration notably and the opposition is  and i think that that's significant now i will say that the caption of the complaint the nd a minute complaint does list timothy as a defendant how that happened that i don't know perhaps that was the source of the court's confusion but it's difficult to to see how timothy could be adverse himself certainly there is no law that says a party can be adverse to himself we cited a case in our briefing and i'm published case again i apologize your honor i don't i don't have the volume right in front of me i can tell you that our briefing list was quite clear on this point that there were several instances throughout the motion and on the reply and in the body of the nd amended complain itself in fact in the diversity allegations he states that timothy is plaintiff and plaintiff as individual and plaintiff as trustee the only time in reference to defendant appears as on the caption of the  perhaps misters do with any of it misinterpreted the motion by adding as a defendant rather than adding as a point you'd like to know where that is in the briefing that would help ok well i'm trying to find this just the particular sites for you and ok let's see here on page twelve and thirteen of the opening brief verse defendants claiming quote this is for the benefit of the trust and its interest here in the nd amended complaint alleges plaintiffs timothy b de martini individually and as  is that timothy only sought to join himself in this litigation as a plaintiff in expressly distinguished that request from his work request to join james as a defense while our position is speak as a senior for us that's a very good question and we don't know because the trust wasn't proffered and again we only have declarations of counsel disclaiming any personal knowledge of whether the trust has an interest at all so assuming we have we were to agree that we have jurisdiction to review whether or not the district court abused  granting the motion with the consequence of well the consequences we have twelve thousand seven hundred and thirty one america back in the case and that's a basis standing on its own to deny summary judgment because it's an admitted partnership the district court granted summary judgment on the partnership declaration a partnership claims and breach of contract on the basis of there was no evidence of partnership whatsoever that we have anything happened with us but the vat property in state court post rem no it's been stayed where we requested a stay after you took the case to the summary judgment was granted on the counter claim completely yes and the evidence there was we haven't admitted partnership  properties the relationship between these two pieces are contiguous and they were owned by this family for forty years at the martini family was a very well known landholding family for decades and these parcels were together there i think fifty four thousand square feet apiece and the brothers developed them over a period of years the evidence was uncontested that the that the nd parcel twelve thousand seven hundred and fifty nine was jointly owned financed developed and there was profit sharing the district court another thing i'd like to point out is  that the district courts that the only evidence of profit sharing and the agreement to funnel partnership proceeds into the r v business was the income report that were not to attest to her declaration but in fact that's not true she declared under penalty of perjury to the profit sharing totality where you have an admitted partnership of virtually and contest well not virtually an uncontested partnership in a virtually uncontestable partnership and uncontested evidence of profit sharing that extended beyond the boundaries of this particular property we may very well come to a very different result and not to mention because of the summary judgment which expanded the scope of the unduly michael was denied the right to a fair trial in name of the argue that there wasn't the argue to the district court that there wasn't evidence of a sharing of profits known that other one no the only argument they made in the only thing in their separate statement was the only facts proffered in support of summary judgment were we have separately title properties there's never been a distribution of profits from these properties there's never been a direct funding in terms of payroll or loans by my by michael therefore there is no interest and michael's argument in the evidence was uncontested that they had and they had an agreement to a broader partnership that the proceeds from loma rico which were just were generated logan well we never called it a global partnership but somebody timothy did partnership property and a separate understanding a lot of this is oral obviously yes which is sufficient in california which is fine and it would also be actually therefore their enforceable but there could be more than one partnership there was more than one point there was more than one partnership there are two partnerships there's de martini and sons and de martini brothers construction the problem here is your honor that the district court never looked at this evidence because it lumped everything  but that didn't happen if the district court rescue me if the state court gets this remained are they don't they have the capacity to decide this same issue is this the district  what why would why would the state court decide to marry i mean they're perfectly then the federal court would if it had jurisdiction well maybe i should as you why do you care what differences they remove the case for a reason it's a small town and they have the right to be in federal court and that's what they chose and it's not the law precludes plaintiffs from manipulating jurisdiction in this way that's what desert empire says that's the purpose of the district court cases setting out the factors the way they do it adding a diversity destroying defendant by definition renders that person and not necessary party into this court's decision in locus and piecemealing it out is what we get this terrible result when you piecemeal out these cla good morning my name is david the metric i represent timothy and margie de martini with regard to the courts question about whether what mr or mr timothy demartini did in his motion what he did was he brought a motion to amend the complaint to add two defendants himself as a trustee say that yeah i have it right here yeah  just i just found that that's the point that i was trying to make and so in their capacities as trustees for the james paul de martini testament terry trust correct you heard o trustee as a defendant what's this crap and see why we have this problem i think that appellant's have confused the issue and i think this can be really cleared quickly cleared up and i'm sorry we i know that you heard it talked about earlier yes and i'm looking at this magistrate's order that's the opposite and i i'd like to tell you that i will tell you it's my recollection that's what timothy did he filed a so this is why this issue became an issue in the remained aspect because we had a diversity destroying arrangement on the caption of the papers and mr timothy did demartini explained in his motion this all came about because of a discovery of a litigation guaranteed and in the pre prior version of that st cause of action the defendants were the appellant's in this case he discovered that he needed to dame james de martini another trustee and he put himself as another defendant because he was also a trustee because they were technically title holders to this other portion of the property and it's unique should the district court have granted the motion under those circumstances of motion to amend yes i think so my reason for saying that is that the all the ingredients that one looks at for amending or a pleading were met and especially this kind of pleading where you have a claim having to do with a specific piece of property and title to this property is as much or as it is important and issue to the resolution of that claim as anything else one of the relevant factors in deciding whether or not to grant a motion to amend and parties whether or not that will be destructive of diversity is not one of the criteria i'm not so sure that is under this card this is this court's analysis in the stevens think stevens is the case the governs the outcome of this case stevens versus brinks home security inc and this court addressed that very issue in my opinion it separately analyzed the motion to amend obviously that motion them and didn't include our litigation guarantee type facts but it's separated that analysis out and determined that the it did not have john d he didn't even go through the necessary party indispensable party analysis i don't recall doing it doing so i thought that's what you have to do when you are faced with a motion to add a party that potentially can destroy diversity well even if even if you do have to go through that analysis that analysis was satisfied in this case a committee said no it won't destroy diversity on both sides on the i'm on and i'm not on both sides i don't know that he said that   doesn't the court of appeals have the jurisdiction to review a decision that allows a an amendment and unless there is present some facts that would place this type of an amendment in a classification that there is some destructive force of that amendment that discretionary order allowing in a unless something fits in that then the court of appeals does not have jurisdiction taree to review the amendment part turning to the remaining part we think we can time steve and also precludes it it creates a special class of circumstances which is the one that was in front of the magistrate judge and therefore the district court in which somebody asked to amend the pleading and it appears right then and there that the addition of the allowance of amendment will destroy the diversity and the way it's worded subdivision he is that you don't need a motion as you do in some division see the court can just see it on the plain face of the pleadings this is a diversity destroying kind of a possibility congress  and the whole thing that district court because you know all this the whole story was sort of wrapped into family relationship and the business dealings and then if that hard up if that was inappropriate if the district work should have reminded the whole re mand of the entire case or it could be just one click and the supreme court in responding to an argument that one thousand four hundred and forty seven could not refer to just one claim expressly rejected that argument and i'm sorry i just curious because her argument when she was talking about what the consequences would be if we were doing what she referred to the fact that why among the other things the magistrate judge did district court adopted in the summary judgment ruling was specifically cite mr michael de martini's statements in that these statements do not as a matter of law my words not thus just magistrate judges but i think that's implicit in what the magistrate judge said they do not as a matter of california law constitute sufficient certain terms to enforce as an oral agreement and we called michael's attempts to want everything into of a global partnership a global partnership clan where our arguments are right and the court felt insufficient showing with respect to the correct and cited michael's statements and so in response to your honor's point about all this other evidence well if you take them one by one all of these other slices of evidence don't serve as a substitute for having certain party property as to whether or not there was a general partnership between michael and timothy on that property oh i think not for largely the same reasons insufficient evidence by michael to establish an enforceable partnership i thought they should remain come from the property held themselves out to be partners when releasing it to other folks jointly managed it why isn't that at least creating an issue of fact as to whether their partners on that with if a parcel of property well here again the context of the motion against these counterclaims was a michael's counter claims couldn't be substantiated by evidence from michael and that turned out to be true these other items of evidence by the time you got to trial were boiled down to the claim for a breach of a promissory note and counsel unfortunately probably didn't get sufficient time to finish her mitigation argument but the the magistrate judge dealt with that very effectively and said this  drafted by mrs rowe nadi de martini didn't have anything to do with the loan payments due under the loan which was the subject matter of the remaining claim and so you know you can point to just a whole number of other pieces of evidence but bottom on less you have a partnership agreement in the st place that you can prove and he didn't then the case is over just like happened  stevens i'll find it and if i can say it let me ask you what do you think if we were to determine that we have jurisdiction to review the motion purely to amend and would reverse at least this business of the motion to amend and therefore the re mand and i think that you would still have to evaluate the summary judgment determinations independently of that because mr michael de martini did a hefty job of trying to bootstrap or piggyback his partnership claim on the one property that was remanded and infuse all of what he had going for him and still has going for him in the state court that action that's been stayed infuse all of that into these other issues well the trial court the magistrate judge didn't buy it and it didn't buy it for good solid legal reasons and so if you were to do what you were suggesting i don't think the result changes the summary judgment motion one of the question that i have and then so is i understand after the trial there was a proceeding that the district court had to conduct correct on the partition  current there's a hearing coming up i think it's late january and it's for the purpose of deciding the referee's recommendation that vet property be sold in the partition action there's a war going on over that one and but the referee has made that recommendation and that's what has hinted at the recommendation is yet to be adopted by denied the court just to a spontaneous took the motion off calendar we've appealed those decisions because the basis of that taking it off calendar was the prior partition judgment was deemed to too i you know i didn't want to go live out here and have you find out and ask why didn't i tell you about that but because you're asking these partition questions correct it's still going on so in the british and there was a british in judgment yes but it's not final because he the district court doing that but since then the referee has decided we can't well maybe i might have got these you know we can't partition him or we can't sell him i forget that one the the reply in support of the motion where timothy says there was no impact on the court's jurisdiction here this is a red herring we have motions on calendar we're going to trial it's not a problem with the caption of the nd i'm in a complaint was a or that may have caused some confusion i think that that's exactly right your honor and if i may also just say that with respect to the partition claim i would disagree the partnership issue is is at the heart of all of these and we should have brought that to our attention at the beginning of your given counsel i apologize your honor if we've loved discussion ok well i thought that we had addressed in the briefing i apologize for not doing a better job at  argument your honor the issue is that twofold one the court improperly looped in the rain and it and attached it to all of the properties that summary judgment so that none of the evidence was really really considered our position is that even without the remitted property the evidence was sufficient as your honor pointed out we have the leases we have profit sharing that's the fish and as a matter of law under california law but then what happened at trial that because the partnership had been improperly looped into the reman and then precluded summary judgment michael couldn't put an on a defense to the breach of contract claim and then also can't couldn't put on a defense to the partnership the partition which is pending and by the way i do believe that we attempted to i do believe that we attempted to get a judgment but it was denied and we did not seek judgment we didn't seek the partial judgment on summary judgment we wanted everything together in fact we asked the court to stay the proceeding so that this court could decide the partnership issue in the st place without piecemealing this all out but timothy prevailed and got the fifty four b judgment and here we are you agree by the way that nothing in the petition of the attorney for you issue this rd appeal has any bearing on these issues absolutely disagree because he was precluded from putting on a partnership defense i'm sorry i didn't tell me why a ok the court it's important to remember that the district court here on the record and off the record acknowledge that these brothers are partners there can be no doubt about that the only question is what was the scope these are procedural errors that lead to a parade of that one hopes never to see but the point is it really can't be denied that they are partners but because the evidence was because of the re manned and the improper construction of the re manned on summary judgment and the discounting of the of the evidence there and the inability to put the evidence on a trial by the time we get to per partition the judge says well that's already been decided it's up on appeal you'll figure that out some other day but for now you're not a partnership and you have no defense to partition so these timothy and his wife are it's important to know there and it's on the record so i'm not betraying a confidence in their seventy's these are income producing properties for this family who've been investing in these properties for decades of what you say about being in your seventy's it's a good thing i'm not so far away but the point is that this is to say that it's not a problem they're just going to be sold and it's no big deal it's a it's a really big deal one of the members of this panel was an octogenarian i am very very happy to know you with this