including rule seven thousand and four dollars which provides for a nationwide service process nd nothing in the derivative jurisdiction documenting negates or implicates the court's personal jurisdiction because derivative jurisdiction doctrine specifically with regards to personal jurisdiction but the language that he keeps using seems to encompass personal jurisdiction what are we supposed to do about that language as a lower court well your honor the context of lambert is important for understanding that language and the context of lambert the court was dealing with team issues of subject matter jurisdiction not personal jurisdiction the st issue the several statute  which the plane of brought the case in state court provided for a federal forum was the only place where the court where the plaintiff that saves the nd issue was that the united states this is an indispensable party and not court in lambert used the phrase jurisdiction of the subject matter or the parties to the parties it a party that the court was referring to the context that case was that the united states as a party that it not wait to its sovereign immunity and that is an issue of subject matter jurisdiction so the context gives those corps that clear that it needs to understand that derivative jurisdiction in lambert didn't have anything to do with per and considering the other removal provisions specifically for came forty seven and one thousand four hundred and forty eight in that context also points to the fact that riveted jurisdiction this i have anything to do with personal interest to consider the following hypothetical your honor that a plaintiff sees a defendant in state court and before the plaintiff is able to see to serve the defendant the defendant removes the case to a district court under the   service of process the court on appeal or the court on removal can after a stitch it again that that mitigates or that that goes against what the context of lambert number one it also goes against the provisions related to bankruptcy jurisdiction this court has said in rosenberg that when a court even a district court is sitting in with bankruptcy related to jurisdiction the federal rules of by proxy procedure apply those rules defendant has minimum contacts with a state court is irrelevant this is because when a federal case is for federal court related to jurisdiction the sovereign exercising authority is the united by those holdings and of taking that one step further and said for instance district court or the district of new jersey in a field versus the argument of justice the court said that if it is a defect in the removal process then the removing defendant cannot create that the fact that removal defect and then take advantage of it by seeking dismissal and effect th tell us a little bit about your rd issue which is the transfer issue yes there are on the transfer issue there is a presumption that cases are to be heard and decided on the  that did not happen here and to the extent that that the court northern district of alabama did not have jurisdiction it would be appropriate in that case for the court to transfer the case to a court that does have jurisdiction the defendants here the primary defendants in terms of fraudulent transfer fund for midcap of their presence in new york and for is organizing existing laws of the state of delaware and its primary place of businesses is in new york district court for the southern district of new york would absolutely have jurisdiction personal jurisdiction of the defendants to be able to hear this case there in new york but i don't think that that would be necessary there are because this court the district court for the northern district of alabama does have jurisdiction over this case even if it didn't have jurisdiction or rules under rule seven thousand and the defendant's ages conduct specifically several reports to recognize with regard to fault or effects that the mere receipt of a fraudulent transfer is sufficient to satisfy the color effects  so these defendants receive this thirty four million dollars fraudulent transfer never given any consideration in return that cause they harmed here in alabama and the creditors would not be able to have their judgments ropes and gray and i'm appearing on behalf of fun for and also berman brothers and before i get into some of the questions that you just asked my brother let me just say who i represent and what they are fun for is a private equity fund berman brothers the general partner of the private equity fund neither of those entities has any employees or has any operations that the derivative jurisdiction doctrine applies both to subject matter and the parties and us to mr benson or as any court anywhere at any time ever read out of the supreme court's language the words of the parties and the answer that is no there is not a single case in fact not only do we have a century old doctrine that goes back to one thousand nine hundred and twenty two the supreme court has used that exact same language in five tastes as most recently as one thousand nine hundred and ninety one now it's true that those cases don't involve personal jurisdiction but the supreme court doesn't use words loosely and it's not up to lower courts to say well once and they mean when they said or of the parties they meant what they set and that's one of the other on the other hand to play devil's advocate to my own position if the supreme court hasn't applied it to a specific set of facts i'm not sure that we're bound to fall that language has been bricked president thing i think that's i think respectfully your honor when the supreme court pronounces a doctrine as they did here and that doctrine has not been abrogated and that issue i think helps you in terms of understanding congressional intent here certainly the congress has on several occasions addressed the derivative court in the doctrine as announced by the supreme court has applicability in cases not necessarily on the facts of the case before the supreme court but brought up look ability on the language of the supreme court uses and that's that's true for a number of different doctrines of the supreme court has followed because not every case is going to fit neatly in the same fact pattern so when the supreme court announces a doctrine a product of cation it is binding on lower courts that's  circuit the meyer case the nice circuit the anisette case all these cases in those circuits all addressed on the facts the situation of the personal jurisdiction issue and not subject managers to action and all said that the language in lambert run was binding on them and we're going to let them get me let me ask you to assume for a moment we are not bound by the supreme court's language with regards to the parties how does the derivative jurisdiction doctrine make sense with regards to personal jurisdiction as opposed to subject matter jurisdiction well the derivative jurisdiction doctrine makes a lot of sense in the abstract and in specific leitch of the personal jurisdiction issue about the whole point of a removal case was brought here in state court the trustee have brought over one hundred adversary proceedings in the bankruptcy court but for this case the trustee decided i want to get a little bit of extra leverage and i want to bring that case in state court and this was the nd time he had done that he had sued the directors  officers st and it was the day after that case some of that he filed this case which was on the eve of the statue of limitations so he rolled the dice filed in state court my clients which at the time there were thirty two separate defendants and he  state court otherwise that would be punitive right so we have is that right why is that why should that be the case you us a removing defendant understand what the state courts jurisdiction are and you presumably understand what the federal court's jurisdiction rules are and for one reason or another you choose to get into a federal forum because you think that will be a better forum for you why don't buy into the federal court's  to personal jurisdiction and one of the federal court jurisdictional rules is a century old doctrine announced by the supreme court that's been universally followed by every circuit court that has addressed the issue in so absolutely we were using our right to remove the case and knowing what the doctrine applied that's what we raised it in the st instance this is one of the cases that went to judgment and then the defendants at that point after they lost said oh we've got a derivative jurisdiction argument that's not our case our case is we removed it we raised it right away judge x and said i'm bound by the supreme court says it right in the language of the decision who are of the parties supreme court said it five times most recently is ninety one congress has allowed that to stay in place every circuit court that stress the issue has found the derivative jurisdiction doctrine and applies to person jurisdiction issues so when we removed it we were losing that argument we were gaining that argument because we were going to be in federal court and we had the federal  jurisdiction argument the trustee could have filed this case initially in the bankruptcy court and avoided all this he chose not to and he doesn't get to be better off because he made a tactical decision to file in state court and we exercise our right to remove it to federal court and take advantage of the derivative jurisdiction doctrine that doctrine so we look or you just say it indicates that the derivative jurisdiction draw three may not make any sense of the personal jurisdiction though i'm not saying i think it makes it to trust the filed in federal court you said he would have had the court would have had personal jurisdiction right if if he had found in bankruptcy court federal which is right federal bankruptcy court and this is where i get to the point here that i think is really important not to lose the trustees tactical decision while so if he files i'm sorry to interrupt you or give you a chance to finish up but i don't want to lose this thought so if if he filed in federal bankruptcy court there would be jurisdiction over your clients but if he files in state court and the case gets removed to federal court under bankruptcy removal jurisdiction that once i'm in federal court i can fix the problem that exists in the state court he can't do that under the derivative jurisdiction doctrine no cases allowed so what's what's what's happening here is we were in federal exactly what happens judge is there is a point in time that you look at whether or not the jurisdiction exists and this is right in that wonderful quote from lambert from the supreme court if the state court works it's interesting and it was like a tutorial to look at the arcane rules on this but you you were move on behalf of the parties that have been served ok that's how you remove it and all of them have to be in  happen going forward federal rules of evidence rules civil procedure none of that matters to the question of the room jurisdiction dr because of the debt think about it if it did then drip of jurisdiction doctrine would be meaningless because you could always say well i can use rule seven thousand and four now and i can serve everybody nationwide service process so i see my time's up you have to hustle your head you can finish up you can finish up there right ahead yes based on the original complaint midcap additionally and alternatively urges the court hold that the trustee waived his right to appeal the dismissal of midcap as well as the burman limited partners or l p s who are situated similarly and here's why after the district  dismissed the original complaint without prejudice the trustee filed a motion to amend represent to the court that it was dropping midcap and the lp to the trustees that a primary importance in any complaint drops midcap many angels and a limited partners a complaint but this merits dismissal rule does not apply here the district court dismissed the original complaint a personal journey sixteen grounds and without prejudice this was not a final merits decision while the th circuit does not appear to have fully because if we adopt your argument i think it's a very tricky thing to write so let me ask you the questions way if a district court dismisses a client a defendant without prejudice a lack of personal jurisdiction tells the plaintiff you can amend but there are no more facts that the plaintiffs can add to a meant but the pla to the other defendants what happens to the dismissal of the st defendant that gets dropped i think that in in this situation the answer it can be found in in what unfolded here with the motion to dismiss them and the motion to g i know you may be you may be right you may be right about that but that's not the case i'm concerned about i'm concerned about the scenario where ok all you will use your client as an example the record dismiss the st complaint for lack of personal jurisdiction right it dismisses the complaint for lack of personal jurisdiction as to a couple of other defendants to it tells the trustee to file an amended complaint the trustee filed the amended complaint but it has nothing else it can add with regard to your client it does have things it can add with regard to the other defendants and the case goes on once there's a final judgment in that case as to the other defendants in the trustee appeal the dismissal of your client for lack of personal jurisdiction yes your honor or not and i think that the path forward there is one that's laid out by the rd circuit in act it's a case which is for seventy three the many complaint perhaps a statement in the motion to a men's wear that is starkly contrast with this situation however is where the trustee in a motion to amend explicitly represented to the court announced midcap in the piece it was dropping those which by default operates as a decision on the merits that case also involve the omission of only a claim against the same party where as in this case we have the omission of an entire party midcap the defendant as th circuit explained the act in a few equitable principles of waiver sure five were strongly when you're dropping an entire party i think finally your honor with respect to what judge acton found here in her order she specifically identified this lack of a valid factual allegations regarding the business dealings in spite of the arguments that there had been the business dealing with support personal jurisdiction so i think that the way forward and a way that would work with the dunn case this court is would have been for the trustee to have amended the complaint to actually bring actual factual allegations regarding those business dealings or perhaps if if that representation regarding business dealings was somehow inaccurate perhaps to correct the that the supreme court's language for the parties in lambert means personal jurisdiction in a case where personal jurisdiction was not my friend on the other side says the supreme court does not use words loosely and in that case it started that state court got removed to federal courts after it got removed the plaintiff wanted to add a federal claim that it could not have brought in state court supreme court said the federal rules of procedure apply and they apply as soon as it gets removed and therefore they can well it's the same thing here the federal rules of bankruptcy procedure appliances this case got removed from state court now the defendant