to the second case this morning melee vs you said airways of this case involves the foreign sovereign immunity act primarily involves two pilots that were involved in an event at the westin here in town the primary focus of the opening brief that we have is that the trial court errored in finding that there wasn't jurisdiction under the foreign sovereign immunity act in this case the district court had found that the illinois workers man is the alter ego of i have the defense contend that you did not raise this argument below and while you're answering that please a i'm not quite sure i understand your question judge the the under the illinois worker's compensation act one of the things that i talk about is that although employers may include states and local municipalities and whatnot a foreign state or foreign nation is not included as an employer her for purposes of the act is that was that your question judge well  the second question but the first question is where in the record you preserve the argument that this you know mr pilot man the alter not we were arguing that man was acting for the benefit of at the time that he struck the plaintiff i don't believe that that is something that we had argued you're correct in that it is the only statute that allows an entity to have jurisdiction over a foreign nation or a foreign state and so in this particular case that foreign doing and it's in the absence of any statutory authority allowing it or any case law to support it is to create a two part manner to address claims that  he had would say fall within the workers comp and that's that first the issue of whether or not the munity has been waived that has to be done within a court whether state or federal the to pretty important question whether or not immunity has been waived i think well absolutely i agree it in my brief goes to great lengths to to not only say that the courts are the only location where the issue of immunity can be addressed and determined to be waived but court decide the issue of immunity and whether it's been waived and then take a second step then of having that case dismissed and then refiled in and as an agency of the state there isn't anything in is arguing is that they don't disagree that the district court this particular case had original jurisdiction to make the determination of immunity but then they take that second step of saying once the court as the arbiter of that immunity makes that decision then the the district court under the facts of this case would then be divested of its jurisdiction and the plaintiff has to pursue his claim that some other location it just doesn't exist we know by looking at pacer and things of that nature that frequently our ted would remove those cases to federal court if they were filed in state court under different facts do they have to  a mean obviously the airlines have to do so as i indicated in my reply brief tries to suggest that because we've procured flickers compensation insurance we have affectively or by operation waive the immunity that we might otherwise have as a foreign nation and so that's why it should go directly to the state agency for adjudication of the employee's claim and there's just nothing contained in either feis a specifically fice that would prevent that  everything about the feis in the case law surrounding fice reaffirms the importance in the role of the federal courts or courts generally to make these determinations to litigate these claims i haven't found a single claim anywhere in any jurisdiction in a court of appeals or in a district court where what ted is attempting to do has happened and where there is a determination of arab emirates ok so so there's nobody other than the injury occurred in the hotel room in chicago i guess but otherwise everybody's for and they're the ones that would want to assert he said to have be able to litigate and they didn't choose to do that just the opposite the hous know there's nobody there and they're not asserting the right to be there i can't start asserting their right to be well i just think though that you know you can call a waiver whatever you want that's what i when i look at this what the plaintiff would say that we properly filed in federal court because this is a an action against a foreign nation the face of provides the only mechanism or means for any any entity having itself that would allow the plaintiffs claim to have been brought in any other location other than a state or federal court  was no diversity in a case where one foreign citizen is suing another foreign citizen and citizen of states ok judge so you're shipping believe relies on the feis and we rely on the case of tango music citing allendale to to attempt to assert that there was diversity jurisdiction i do know that the statute if we're reading the the language of the statute makes that much more difficult for me and i i concede that the that can be so given the fact that the plaintiff is a foreign national and mr mann is a foreign national  t i'm not sure how i can address that judge other than saying that we believe that the tango case supports or allows for under these circumstances there to be a finding of diversity jurisdiction  one of the other things that that is important in this particular case is that even if this court were to find that the the state agency the employment certainly because they were on a layover it fell within the course of his employment but the but the language that's included in it's a case called wise versus industrial commission which is cited page twelve of my reply and it says the court this is the illinois supreme court the court held that an injury arises out of employment when it originally it's from some risk related to the employment thereby establishing a causal connection between the injury and the occupation in this particular case mr bailey answering his door in his hotel room at the west end getting struck by mr man with the object  certainly that has no relation to his work as a pilot he was simply there by virtue of him having to be on the layover and so we would argue and we we did in our briefs that the this this doesn't fall within the exclusivity provisions of act because it doesn't fall within the exclusivity provisions of the act it can it couldn't ever be brought within the illinois workers compensation commission  that we certainly agree that this is within the course of his employment in the sense that he was on this mandated lay over there at the western but because as i indicated with the weiss case the language of the supreme court of illinois would make this so that it didn't fall within the scope of his employment and was not there was a causal relationship between the injury and his occupation as a pilot for us and so therefore even if we could have filed in the workers compensation commission which we strenuously disagree with that proposition it wouldn't fall within there and so he would have had to file a lawsuit anyway in order to pursue a remedy against mr mann and to the extent that he he wanted commonwealth of massachusetts department of industrial accidents opinion that was written and it's back in twenty fifteen i'm not sure why it didn't come across that except as by googling it wasn't available to me through any search supplemental of who are know something you haven't said before yet only to the extent that it is saying the same thing i said which is that the administrative judges of the department of industrial accidents are members of the executive branch of government function within the agency of the commonwealth of massachusetts and they're not members of the state or federal judiciary which is that's that's what i had argued and so it was saying that because because it couldn't ever have been brought in the illinois workers compensation scenario the federal courts in this particular case was a proper venue so unless the court has any additional questions i don't thank you thank you first judge brett bruckner asked did bailey preserve the argument that alter ego was at play then she asked where in the record did he present the argument that he had is not an employer those answers were not given and there is no place in the record where those arguments were in fact preserved now eddie had filed a rule twelve p six motion to dismiss sta such a suit objected well that's a different question let me answer your first question but the first the answer to your first question is yes he could have sued and he had directly and here is why eddie had has elected to be foreign state can waive any immunity from suit now then you look at section three zero five a one of the worker's compensation act that provision allows employers such as eddie had to elect to become subject to the act taking those two statutes gather and he had did in fact make such an election and has registered with the commission as having insurance coverage under illinois so therefore mr bailey could have gone directly to the commission and he had has a weight and immunity from suit now with regard to the second question that your honor asked and that's not the facts of this case but if you had a foreign national that had not elected to become subject and did not register with the commission that's a different issue if you look at what society says it says claims to immunity shall be decided in the courts of both federal and state court if you look at what the worker compensation commission says it's going to the compensation acts as all decisions of the commission are subject to judicial review so the illinois state courts do you have authority to to assess them the the merits of the commission's decision so if you had a foreign state that had not registered and it wanted to assert its immunity it could have done so through a federal court and that that's a different issue and maybe more complicated that for some reason the foreign state is stating that it's not subject to the commission but again that's not the facts of this case and he had his explicitly waived its immunity from ok so if a court must resolve in the first instance whether the foreign state has sovereign immunity can you respond to that scenario or age and of of the reply brief muster workers compensation plane the file suit twi wants to resolve sovereign immunity and wants in the commission to decide t supreme court case and what that court recognized what the illinois supreme court recognized is that state courts are not to vested jurisdiction to consider various issues so we're a claimant to file a worker's comp claim with the commission and he had a foreign state that somehow believed it was in munich from suit a proper vehicle would be for the foreign state to file some type of declaratory action whether in state court or in federal court that decision of a munity with there by be decided by a court whether state or federal as important to know that we are now both on the same page that state courts do in fact after a section of society so the court can then decide the issue of immunity and in this case as judge gottschall determined under the worker's compensation act there is no common law right of action or negligence which are the claims here so it would in fact be proper for the court to say if there is no immunity the courts do not have the authority to review a decision and till it is it until the administrative parameters are exhausted so yes your honor it would be immunity question would be decided by a court whether state or federal if the court determined that immunity had been waived or there what was no such immunity the court like a judge gotcha did with then dismiss it stating that it's barred by the exclusivity provisions the claimant in this case whether mr bailey or somebody else would have to then proceed with its claim through the commission and then that commission's decision would ultimately be subject to review by the courts ok now if it is  subject to jurisdiction to the jurisdiction of the commission the only commission because it was in gauged in commercial activity carried on in the united states or because it waived immunity under the saya by aleck ting to be subject to the provisions of the commission i think we can even stop at the election that's the first prong of the analysis the first way to waive is by explicitly or implicitly waiving your immunity so we certainly contend we have waded in unity now with regard to the commercial exception we have not analyzed that in the briefs but in reviewing the case law it and you know general society language that likely would apply as well but i don't think your honor even needs to get there i one what this says is a foreign state shall not be immune from the jurisdiction of courts of the united states four of the states in any case in which the foreign state has waived its immunity either explicitly or by implication and in this case we would contend that we have explicitly weighted well clearly in worker's comp reason that you know that your good unit negligence and other things is because it's just an automatic you get injured on the job you're medicals are paid for and that's the whole point but it doesn't go well beyond that and to that a punitive damages and other things you don't you get compensated or that is the way illinois has set up our system the quid pro quo for having a worker's compensation act in general and in some cases the employer is on the hook to know paul and that is just the system we have and illinois is not unique in that this is you know that it's fifty state system that that we have now employed is it having determined that the commission has the authority to to adjudicate claims subject to review by the only illinois court give me the district court correctly determined that mr bailey's claim for negligent negligence negligent retention in willful and wanton conduct are in fact barred by the exclusivity provisions of the act section five a and eleven of the act provide that there is no common law or statutory right to recover damages from the employer other than what is set forth in the act based on this cases the course or team i hold that negligence claims are barred and that there is  first let me address each in turn first he needed to show that his injuries were not accidental now according to mr balej in his brief he argues that the injuries were not accidental because they were the result of  mr man's alleged intentional conduct this is a case of mere brady versus marshall field squarely addresses that and says that intentional injuries are accidental because they are correctly held that mr bailey's injuries arose from his employment now i understand that mr bailey claims are not arising from his employment because they were not sustained in his duties as a pilot mr bailey is refusing to acknowledge is that when you have a traveling employee such as an airline pilot the standard is different and in that case what you need to assess is whether or not the conduct was reasonable in forseeable that he was engaging in conduct that was reasonable and forseeable from eddie had point of view if you look at the facts of his second and then the complaint he claims that eddie had paid for his hotel room use and then said he had arranged a hotel  room he was transported there by eddie hyde he alleges that at all times he is all cumbers our representatives because he claims that he was in his hotel room after having dinner with his crew members when he reasonably opened the door to a fellow employee who he believed was coming to deliver a coat and possibly polish for skipping out of the bill his actions as alleged spy mr bailey were reasonable and forseeable it's conduct employment so that third exception is not at issue and in fourth and finally the exception addresses whether or not the injuries are compensable under the act and there's ample case law that she says that replaces halt and batteries are compensable under the act as long as the claimant is not the alleged aggressor which is not what we have here so for those reasons are the only did you say i mean my recollection out of employment and as we explained in our briefs when you have a traveling employee to address the question of whether or not it rises out of employment that is a a standard that must take into account the fact that he is a traveling employee and that's what the district court cited for the test and that is what the case law said so when you hear mr bailey talk about scope of employment what is  standard for traveling employees so it's at its conduct that's reasonable or  it please the court i madame shepard and i represent sirup deep man if i may begin by addressing judge rove nurse question to plaintiff's counsel regarding the district court's reliance on i in fact begin tech case is right on point this court in texas cited by way of example that a citizen of mexico could not sue a citizen of new york and a citizen of canada within that diversity statute we have the exact same situation here though mr samberg said that he relies on the tangled case to justify claims position regarding diversity but all tangle stands for is that when there is foreigners i'm both sides of the litigation diversity's not destroyed but that's not the situation epa are so if there was an american plaintiff in addition to the form plaintiff which is not in this case then he might fall within section eighty three of the diversity statute or had bailey only sued american defendants and you could fall within section  i mean what basis does he entered the united states and maintain a residence here he is a resident and we filed an affidavit to this of a fact it in the district court when we are presenting arguments before the magistrate judge he is a resident of the republic of india he does not maintain a residence here so it's not based on there is  allendale case which the point of cites in his opening brief is distinguishable in that case they were citizens of united states on both sides of the litigation and we don't have that here in this case though and on the odd case actually states that a federal court does not have diversity jurisdiction where one foreign sisson is suing both citizens of states and a citizen of a foreign state i think we're on all fours with that scenario here obviously the section eighty four doesn't apply that it has to do when there's a foreign foreign state as the plaintiff but that's not the case it's an citizen who's of a foreign state based on the foregoing we asked the court to affirm the district court's ruling regarding court counsel i represent the two michigan avenue defendants the hotel defendants and the portion of the jurisdiction argument that i want to address is just the issue of whether our third party complaint for contribution somehow creates jurisdiction after the airline was dismissed from the case we had a pending cross claim for contribution and after they were dismissed we filed it as a third party complaint for contribution under illinois law and to the illinois joint tortfeasor as act all we see in the third party complaint is contribution if our clients were found liable is not an independent cause of action it is  one that is not turn to the pleading under illinois law alternative to our denials in our answer so as i understand mr bailey's argument a part of his argument about jurisdiction appeared to be that the third party complaint for contribution on its own somehow would create jurisdiction for this court to retain jurisdiction we've already addressed the diversity arguments and as far as his argument that sub paragraph or if the diversity statute would somehow create diversity jurisdiction even if you were to look solely at that third party complaint i think we've seen that that's a misreading of that  sovereign immunity is act because the only way we could sue them is if there was an exception applied however the while fs i may provide the means and vehicle to obtain the ability to sue them because the question of whether or not there is an immunity for that do we've already established here today that the federal and the state court have concurrent jurisdiction over that issue and the second part of that is really the basis of that third party complaint is the contribution and if there weren't questions about the vice and whether that applied that could be answered by  state court doesn't need to be inserted in this court has not been raised in the third party complaint so based on the arguments that we've raised in our briefs unless the court has any further questions on that kind of narrow issue that i'm addressing state shall not be immune from the jurisdiction of the courts of the united states or of the states in any case and that it goes to one in which the foreign state has waived its immunity either explosively or by implication  the in the cases that have been signed there are also citizens of states on both sides which is why create the diversity in the first place i understand judge that you're concerned about the diversity and and and that's why for purposes of my rebuttal i was going back to address one of the things that ted had had raised so i can certainly understand your perceiving my over read of the diversity statute in the in the case law so if i can go back to what i was trying to raise originally which is that under six o five which is one of the things that i was addressing specifically here saying that we waive we waived under sixteen zero five a one and that permits everything to take place in the worker's comp and that's not what the statute says the statute says that they can implicitly or explicitly waive immunity and what that does is that allows for the courts to have jurisdiction over it and and i think that that's a very important because that's what i've been arguing the whole time is that the courts are the only proper venue for this claim against to be taking place the the up and the other section that or the other argument that he had made with regard to the fact that  the illinois workers compensation act permits an opportunity after you have ran the whole course in the state agency to then appeal those decisions to the state court and that's that's so far past what the feis of permits as far as being able to have jurisdiction over a foreign nation and the illinois workers compensation act does not permit that