defendants for claims that included breach of three different contracts and they brought that case in state court in franklin county north carolina by combining the claims under three different contracts that have three different venue provisions the pla misreading the contract their argument also ignored below that half allows any one defendant to remove without the consent of all defendants and because all defendants join the notice of removal this case was properly removed so to talk about the parties and their relationships to one another the plaintiffs are former residents of assisted living facilities in north carolina all three of the name plaintiffs lived in franklin manner which is located in franklin county one of the name plaintiffs at the time of removal clear murphy had also lived in gabriel manner which is located in johnson county and plaintiffs tacked on a third facility the crossings that still creek located in mecklenburg county even though none of the named plaintiffs had ever resided in that facility they also added same wording in each contract but it produces opposite results so the wording is the county in which the facility is located shall be the sole and exclusive venue for any dispute between the parties that arises out of  connection with this agreement and because the parties the defendants facilities are located in three different counties as to franklin manor the such venue in franklin county north carolina as to gabriel manor it sets and that if any one of the five defendants in this case did not waive its right to remove that the entire case was properly removed so the plaintiffs have to establish that none of the five defendants can move that franklin manners contract is somehow binding on all five defendants even the two defendants that have conflicting venue provisions in their own contracts with their residence and the plaintiffs can't do so they've looked at two case law that is an app a set in support argument that related entities can all be bound by one contract but leaving aside that the case law actually doesn't support that proposition in the first instance all of those cases  with the situation where the defendants are sued under one contract plaintiffs didn't sue gabriel manor or the crossings that still creek for violation of franklin manners contracts plain of sue those facilities for violation of their own contracts with their own residents so plaintiffs are now trying to read the venue provision in franklin manners contract into to other contracts even though they also brought claims under those contracts so plaintiffs rely contract such that it became foreseeable that they would all be bound by the contract then you can enforce the contract against non signatory and in that case why goal was an individual who  own a couple of corporations while himself entered into a contract with lloyds of london that contained a venue provision and the court held that because the corporations had gotten involved in a white dispute with lloyds voluntarily that it became foreseeable that when this dispute resulted in litigation that they were at the entities would be bound because they had voluntarily become in tangled in the contractual relationship it doesn't hold that if you sue under multiple different contracts you can do this sort of mixing and matching that plaintiffs are doing here that you can say we're going to sue under three contracts but we want to import the venue provision from one contract into the other two contracts where it doesn't belong well but your solution that the result of that is that is a waiver as to all the venue provisions why isn't the result simply excising of the defendants who are not bound by the franklin county venue provision i don't think that is actually a possible claims and we're not arguing for the case to be broken up we don't need to be able to enforce the contracts here gabriel manner and the crossings that still create simply need to be able to show that they're not bound by franklin manors contract provisions in order to be able to remove the case i think once you're sued in the wrong forum the plaintiffs have waived the right to enforce those venue provisions because they didn't sue where they would have been required to sue and at that point the defendants  can remove the case rather than enforcing the venue provisions i think at that point the defendants had an option and the option that we picked was you know this case had been improperly amalgamated so we would rather move it to federal court and proceed in federal court  jurisdiction the defendants would have the burden but venue and jurisdiction as the supreme court has that isn't are not concept of concepts of the same order and here because the plaintiffs are trying to enforce a venue provision five of the defendants waive their right to remove so the because it's not a question to answer the question because it's venue and not jurisdiction the burden is on the planet literally wasn't fully developed that actually but that's true if they were able to show it would be a way to get around the conflicting venue because it would not the there's two issues one is that they did not actually make any showing that the entities were alter egos the only record evidence that they relied on below is a chart appended to the notice of removal showing the relationships of the entities but in any event there are cases  situation to date one of them is the jefferson parish case where the plaintiffs sued under two contracts one has a venue provision one does not and the court held that you can't take the venue provision that wa extend it to the contract it doesn't contain it the language in the decision is plaintiff cannot expand the effect of such a bar on remove all to the second contract by filing their claims together but if they wanted to enforce in that well it doesn't address alter egos addresses a situation where it is literally one defendant so i don't think there is any case law supporting plaintiff position that showing alter egos would be enough they didn't show it in any event  but there is case law saying that where you have really one defendant not simply alter egos but there there is just one party that when you've got conflicting contractual provisions and you have those claims combined together that  venue provision and one contract doesn't bar removal that's particularly the case where we've got independently removeable claims under the other contracts i think it's also important to note that these contracts contain a no third party suggest that we can't look to gabriel manor or the crossings contracts and their argument is that that this somehow draws in absent putative class members prematurely but the plaintiffs have to have claims in their own right under these separate contracts in order to be able to sue these defendants as to gabriel manner claire murphy was a name plaintiff at the time of removal and remove ability is determined as of the time of removal under  be all state and she had entered into a contract with gabriel manner that set venue in johnson county and then as to the crossings that still creek we don't think that it was appropriate for the pla to bring a claim under that contract because they are not parties to it none of the name plaintiffs had ever resided in that facility but once they chose to nonetheless improperly tack on claims they can't say we're suing you under a contract but it's not enforceable against appeal but in any event the plaintiffs have the clause meaning wrong here and the plaintiffs took actions that are inconsistent even with their own reading of the clauses if planets were reading the clauses correctly they combined claims in a way that the clauses forbid and there's no reading of the clauses that would allow all three of these cases to be brought together under our reading of the clause gabriel manor and franklin matter could be sued although together although only in federal court but there's no reading both in the same county in federal court the eastern district has jurisdiction over the because the franklin manor and gabriel manor are in counties that both roll up into the same federal district  don't have a name plaintiff whatever resided in that facility but once it was there you know it's quite clear that it did not waive its right to remove even under the plaintiff's theory because there's a federal courthouse within the boundaries of mecklenburg county i mean ask you about this i'm going to back this alter ego issue because this record at least made a passing reference to that in his opinion you have suggested that there be no basis overcoming federal jurisdiction based on that premise but you don't point to a case yes that's the case so why shouldn't you remain in this back to the district court to make findings as to whether or not there was an alter ego relationship because the plaintiff didn't make a record that would support such a finding in any event the plaintiffs did not make a record that would support such a finding in any event and i don't think the district court the district court referenced the plaintiff's allegations and then simply concluded that they're related entities the plaintiffs didn't put in any evidence in the record to suggest anything beyond related entities or any items a mistake or record about i don't believe there was but the plaintiffs did not rely on the state court record before the district court the plaintiffs have attempted to do so on appeal but the what they were a lie on is an order that was entered after the case was removed i think if plaintiffs had sued simply franklin manner and then tacked on the same for entities the plaintiffs would have a good argument that that the saber entities would foresee being bound by the franklin manor clause as two suits involving franklin manor specifically but once they added suits against gabriel manor on the crossings if sabre's going to be bound by a venue provision it would be bound by the venue provision in those contracts as to those claims so they're trying to apply the franklin manor clause across all three contracts and even if saber is closely related to its subsidiaries there's no basis for them doing that thank you may place court steve guggenheim for the apple lease like the most important thing the courtney's to recognize is that this is a putative class action that was filed initially by two residents of franklin manor who had contracts that banned them specifically they were not residents of the crossings they were not residents of gabriel manor they were residents  franklin manor and as such they were not obligated or by owned by any particular contract that set venue in any place other than franklin county saver is a chain of nursing homes as a parent company that controls over one hundred nursing homes sister living facilities in the united states one of the primary allegations of the plaintiff and the reason that all the defendants were named is because this is a punitive class action where the allegations are based on decisions made by the corporate entity that controls all of the defendants in the case yeah legation is that the defendants are all alter egos of one another that there is really no distinct or separate corporation there is no distinct four separate defendant that can somehow claim that they are not bound by the decisions of their parent those are the primary allegations in the case so in order for that the court to accept the appellant's position the court must completely disregard that fact and disregard the implicit findings of the district court that these defendants are closely related and alter egos of one another so you seem to be suggesting that and clearly that those are well played allegations in response to a motion to dismiss that might be the case but this is a different procedural posture they've moved to remain the case or remove the case the federal court and the question i have is you have an obligation to present some evidence on that allegation yes i believe we do your honor but i think the standard for the judge on that issue is a clearly erroneous standard because what was the evidence other than a complaint well the evidence was that this case was originally filed in state court prior to the time of removal there was a two day hearing before a state court judge on an injunction against all the defendants the state court made specific findings of fact and conclusions of record was presented on the on remained it's not in unfortunately that record is not in the record for the court of appeals and i would agree that the defining the record is not as complete as we would like it to be on that particular issue but clearly the judge had to have referred to something to make his findings which there has not been a demonstration that they were clearly erroneous of the relationship between the two know it's not a great record to run well i will admit it was just a statement this is you know the remit or reman motion is denied based on the fact that there's an alter ego allegation somewhere in this the injunction hearing as part of his determination that the defendants were closely related and alter egos of one another and what's the evidence that it all we have to go on your honor is what's in the record i don't know what i would admitted leigh agree that the record is not perfect and all we have to go on is what the judge indicated in his order and we know what was that that injunction order was part of the record and as part of the court of appeals record that was considered by judge boyle when making that determination and in that record of the injunction order i'll be it was signed after the remove it was signed after the removal but referred to the court's findings prior to the removal and one of the issues that was addressed at the lower court was whether that was simply a ministerial act by the state court judge in signing that order  and that was that was argued specifically at the lower court as to the effectiveness of that injunction and in the state of north carolina the signing of the actual order is a ministerial act the findings were actually made prior to the removal of your position those are about to go or it's our position that the federal court can consider those findings i'm not saying that it's the law of the case but i'm saying that it wasn't clearly erroneous  judge boyle to consider the findings the state court judge as that record became part of the federal record on appeal once it was removed i don't think it was clearly erroneous for the district  judge to consider those findings and making his ruling there is no indication by the defendants that that would be clearly erroneous for him to do so let me ask you about the order that's the evens order which i have in front of me as i read this and i'm looking at it now again paragraph twenty three of his findings of fact the only finding that he makes with respect to this alter ego allegation is that the court was not presented with factual evidence by defendants that refuted the factual allegations contained in plaintiff's first of many complaints i was that evidence of a i mean there's no it doesn't appear that there's any evidence in this record respect all three go except the plaintiff's allegations in the complaint well the allegations in the complaint as well as the position that the defendant took and submitting again we have evidence that saber healthcare own was the controlling clause that closely related entities can be banned non parties to a contract can be bound and ending adam's case judge posner went through and explained numerous circumstances as to why nonparty to an agreement can be valid he talked about filiation being one of the reasons judge posner talked about alter ego he talked about piercing the corporate veil and many of the instances in the adams case the court the court referred to allegations of the plaintiff judge poser's opinion does not really set forth the actual evidence that was available before  district court in making that determination but but that is probably one of the most precise analyses of how that determination is made by a core and reaching a conclusion a plane or a conclusion  to why particular defendants through either their affiliation for mutuality through piercing the corporate veil and through alter ego should be bound by a form selection clause mr going to let me have in in that right the effect of the injunction itself would not go into effect actually what he said in that order was that it was ineffective because the case had been removed the question is whether or not his findings could have been considered by the digital age of what what he said then you can explain to me maybe it's a different context and understand he said come up with an order that memorializes that and i'm looking at it and it or modified as i think is appropriate and i'll make it effective when the order is correct i think what he's saying is is that the effect of the injunction meaning that the injunction would take  issues she was saying that when a case is removed the defendant removing it has a burden of proving that bedell jurisdiction is appropriate but that you as a plaintiff have the burden of proving removal is not proper you agree with with that allocation of burdens that she represented to me i do not your honor i think the burden of a stablish in removal and entitlement to removal is on the defendant and as we know the also cite to what we believe is an improper standard of waiver they claim that the burden is to show that there was a clear and unequivocal waiver of the right to remove that is not the  w and in fact in the foster case the third circuit went through a very detailed analysis and in fact discuss the cases that the defendants claim support their position that that is the standard and specifically noted in a very detailed analysis that that's not the standard for establishing waiver and in fact all that's required is for the courts to interpret the contract there is no requirement that the that the waiver be established to clear and unequivocal evidence that's not the proper burden that may be the proper burden for a litigation related waiver as the court and foster noted but not for  contractual waiver the issue as to as it applies to a contractual waiver and the burden as to a contractual waiver is merely a contract interpretation that's a legal analysis that the district court in this court  verified complaint so i think the whole before we get even can get to the analysis suggested by the appellants the court must reach a conclusion initially that th at they district court other didn't do not have enough evidence to make a determination that the parties for purposes of a remained only not a factual legal conclusive finding that's the law all of the case that's not what the judge was required to do is just making a plain airy decision as to whether or not there is sufficient evidence to determine for purposes of raymond only that there defendants were alter egos or affiliates of one another at that that decision by the district court judge is not something that the plaintiffs could later rely upon or establishing liability of the defendants down the road it's only a decision it's made for purposes of deciding whether or not this case can be removed or whether or or whether or not the contract between that plaintiffs and franklin manor also applied to the other related and whether they are bound by these agreements we have to remember that they drafted these contracts the plaintiffs in this case did not have any role or bargaining position in drafting the for selection clauses that are applicable to this case if the defendants did not want to contemplate that they would be back in a particular venue or forum they could have very easily drafted these agreements differently it's a sophisticated company has more than one hundred these facilities if they wanted to preclude the the filing in state courts if they wanted to provide them the ability to remove the case to federal court either a they could have not included a form selection clause or be drafted the form selection clause differently than they did they drafted it they knew when they drafted where they may be subject to being sued if they wanted to do something differently it was up to them not up to a party who had absolutely no role  where a case may be filed guggenheim let me ask you about this closely related to this let's put aside the alter ego allegation for the moment what is your understanding of what part of the show and you seem to be suggesting that the mere fact that the nursing home energy has had a relationship with the subsidiary companies the holding company and the other energy that that by itself is and is that your position well i think that what the court do that instructive history review judge posner's decision because it goes into a very detailed analysis as to a the reasons that we have a law that would allow non parties to be down to a form selection clause and he does discusses a number of different situations in which that would apply in fact in the adams case one of the parties that was held to be valid by the for selection clause had absolutely no relationship or affiliation with the party in the with the party who signed the contract in the case and in fact in the adams case one of the defendant the judge posner concluded would be balland by the form selection clause that party was alleged to have conspired with an affiliated company of the company that actually drafted the form selection was and because of the fact that this company was alleged by the plaintiff to take can to have conspired with one of the affiliate companies of the company that actually signed the contract judge p concluded that because of the mere allegations of that relationship that that company should have expected to put it in the end of that just the mere sort of corporate alignment and structure of holding up any end of a parent company is that enough i don't think that's enough your honor i think what is important isn't as judge posner noted is whether a nonparty to the contract may be bound by the form selection clause depend on whether the nonparty is closely related to this  so i think you have to look at the allegations of the complaint so i guess that my question is why would it be foreseeable that this the oak creek facility which is a separate entity would foresee being hailed and ordered to franklin county because of the allegations of the suit and the allegations of the suit is that saber the corporate entity that the plaintiffs contend controlled and admittedly was the one hundred percent shareholder of all of the other facilities the allegation is that this entity set minimum staffing standards for all of its facilities that saber knew or should have known would be an adequate to comply with all of its contractual obligations to all of the residents of its facilities the if the contracts or each of these facilities were exactly the same there is no difference in any word of any of the facilities so the position is this if for example we had had a and again the named plaintiffs in the case are not residents of crossings it's a punitive class action these name plaintiffs couldn't have taken the  the crossings of steel creek agreement and filed a lawsuit and mecklenburg county because it's just a punitive class they only signed the agreements with franklin man the allegation though is that saber as the controlling entity knew or should have known that it would be valid if we had plaintiffs that were plaintiffs of each of the facilities that they could have been sued in any one of those venues saber drafted the agreement they knew when they drafted the agreement that there was a form selection clause in any one of those agreements that they were bound to if they were sued in a punitive class action and had asked representatives from each of the facilities they had to have known that they could be sued in any other selected venues that they chose but for them to come to court now and  court to ignore the fact that they they recognized in advance of this lawsuit ever occurring and when they drafted the form selection clauses that based on their drafting i think it's important to circle back to the basic kaffir principle that's at issue here the removal of the action is valid if any one defendant can remove the case and plaintiffs are now trying to daisy chain two orders together one from state court one from federal court into an alter ego finding but neither of those orders actually make such a finding the state court didn't find it federal court didn't find it and there's no evidence in either record to support it and there's certainly no evidence before this court on appeal to support it judge boyle didn't look to the state court record judge will simply look to the plaintiff allegations and then said what's in the record shows that you're related entities in footnote two of his order but more importantly the plaintiffs conceded at oral argument that it's not enough to show that there's a holding  company over all of these companies and that is the only record they made in support of their alter ego arguments they did not point to any other extrinsic evidence and they did not actually plead in the complaint even sufficient allegations to shows why that's not sufficient it actually directly holds that that's not sufficient simply being related is not enough for parties to be bound by other parties contracts and that's in the context of where it where you only have one contract  i think it's important to note that adams the raintree also does not simply rely on plaintiff's allegations in the complaint except against the plaintiffs so it allowed a nonparty a non signatory to a contract defendant to invoke the plaintiff's allegations against the plaintiffs did not say that facts would not be sufficient if the pleadings would be sufficient and no evidence would be required if the situation were reversed and the jurisdictional reason the burden is on the plaintiffs what that burden is there's a circuit split as to whether it's requires a clear and unequivocal waiver or whether the burden is lower contracts would you say that your book goes well because you've got the conflicting contracts in any event whatever the burden is plaintiffs can't meet it and i think it's also important to note that the plaintiffs kept coming back to the idea that saber could have drafted  differently to prevent this lawsuit but sabr did draft the clauses specifically to prevent the aggregation of claims the way the plaintiffs aggregated the clients once plaintiffs violated the contracts the entities absent class members but the plaintiffs brought claims purportedly in their own right against all three facilities one of the name plaintiffs actually signed an agreement with gabriel manner and once you've got the three conflicting clauses  play the defendants that have venue provisions that did not set venue in franklin county the other two facility defendants gabriel matter and the crossings were each free to unilaterally remove this case so this is exactly the sort of situation that katha is designed to deal with it was designed so that when you stick together cases into a class action large enough to trigger a federal jurisdiction it should proceed in federal court and that's where this case should