in the first case new ground the bank of america all i t professionals all that worked in the same division that performed similar tasks and that all ultimately reported to the ultimate same ultimate manager  when you say alternate manager was that the same person who set salaries for each of them decided promotions for each of them that was that was a bit nebulous because it was according to these pay scales in pay rates according to the bank and when you say all to leave they reported to the same person i suppose everyone who works in the biggest conglomerate in the world ultimately reports to some c but the question might be in a discrimination case about decisions that were made where the decisions made by the same person with respect to all of the alleged co people in that division professionals and that was the that was the manager and not a high level manager intermediate manager despite presenting cochon evidence   although this ruling obviously was not one you wanted and one you objected to and one that if the case had proceeded to a final judgment you would surely be entitled to question on appeal that's not what happened here what happened here was the judgment that you're appealing is a judgment that you specifically agreed to that's partially correct your honor this is the the the motion for voluntary dismiss the conditions in my view when when federal jurisdiction when the federal courts divested of federal jurisdiction i believe any imposition of rules and a him but you agreed to that disposition and you didn't say you have no jurisdiction to do that and so i'm going to resist and someday i'm going to appeal that when we get to the end of the case you said well fine we'll take that deal and you took it and you didn't need to you could have said well in that case i would draw the motion to under protest withdraw the motion  to dismiss the the federal claims right the one of the conditions set by judge coat was that discovery was going to be was should be completed in federal court right and you had every right to object to that and say you know i don't want to do it that way i think you're imposing too onerous conditions and so i'm going to object to that and then continued with the case and when there was a final judgment maybe you still would have won the case of this would matter or maybe you would have lost in which case you would be able to appeal all of the rulings that produced that outcome but isn't this a case where  you accepted the conditions i mean yes or no you step in the conditions right yes we did accept the conditions the the the the difference here and i think it's a very salient point is that the federal judge said you can you should conduct discovery in this court ultimately the federal judge refused to hear and you've painted discovery arguments and then when that happened at the end of the day did you seek to withdraw your motion for voluntary dismissal by then in my view it was too late because it was the it was after the dismissal the judge dismissed the case closed the case and by then you know that  so you consented at the outset maybe didn't know exactly what that would look like and then when it came in you were displeased with how it looked you didn't further seek or make any argument to the district court that you no longer court is there is there any adverse decision made by the district court that attaches to a claim that you did not voluntarily dismiss  was the district court breach some agreement that she would perform discovery in federal court that's a very high bar to meet it would seem to me even if we took that the argument on your terms yes y the facts of the case to reach that high bar moment ago you said that the judge refused to hear your arguments i mean that's just not the case right you submitted the arguments the district court consider them the district court rejected them that happens every day in court you know you lose sometimes you win sometimes you lose sometimes it rains but in this case you submitted the arguments and you lost actually the district judge during the rule and the hearing listened to the arguments from both sides and then if the motion is untimely the judge doesn't need to address it now that's a ruling and it's a ruling that's based on the record and it's a ruling that could have been right or could have been wrong but that's a that's a very different thing than saying i'm discovery according to her individual rules we had to engage in trying to engage and to try and narrow down the issues before bring them to the district court we both jointly applied for an extension discovery for that purpose that motion was granted the rulings that had taken place so far but also to conduct discovery in federal court under the under this judge and you know what the rulings were going to turn out to be in advance  despite extending the discovery and refuse really to to to address the substantive arguments at all so i think i think that that's what rights of the use of discretion is that the judge impose conditions that we in good faith good morning may please the court my name is alice and i'm here on behalf of the pelleas in this matter i won't take too much of your time and i will remain abreast for any questions you may have but this is clearly a case where parties here to seek the court's intervention to relive a gate a case and take a second bite of that proverbial apple the court here has no appellate jurisdiction because on february twentieth two thousand appellee move to voluntarily dismiss his claims with prejudice the federal crimes and without prejudice to refile his state court claims there and under those circumstances the appellate court has no jurisdiction to hear the argument you make the argument about finale and in your papers and just now put a lot on the dismissal without prejudice of the state claims but not been resolved it's not final judgment there is an opportunity for him to relive a gate the case and the issues that have been dismissed without prejudice and stick right but my question is this in the hypothetical that counsel for whatever reason agreed to voluntarily dismiss all of the claims with prejudice in that case would you agree or know that there would be appellate jurisdiction to review the discovery related orders and the like i would say there would still be no appellate jurisdiction because it hasn't been a ruling on the merits of the case he sought he got what he sought for that's what he moved for so it once the appellee asked to read dismiss all the claims and that's the what the court granted  so much as non there's no non adverse decision of stand erect there's no adverse decision it's what they wanted which is what they got so now to then say well maybe i didn't quite want it so let's see if we can revisit that issue because perhaps the discovery that i change or in the extensive seventeen months of litigation was not enough for me so i like to have reconsider it has been incorrectly filed in state court there's been no litigation and hasn't been served there's just been a complaint that has been filed now probably over a year ago can i ask if so that the consent happened at the beginning of the process of the discovery process or at some point before the discovery process ended and then there were the district court's rulings toward the cause of discovery that it was too late and  if the appellant had moved then to withdraw the motion the motion for voluntary dismissal would you have would you have opposed that no i would not have if he wanted to remain before the district court judge and to continue the litigation based on the rulings that have been already issued based on the discovery that had already been completed i would have had no problem to allow that to go to trial before the district court judge the problem here was he was dissatisfied with the orders that the district court judge rendered this was a classic example of forum shopping he was unhappy with a district court judge and felt that a state court judge will provide  with a better opportunity to get a more favorable rulings and that would have required if you've gone to state court you would have had to relive again the issues that had already been to serve your honor and we're talking about extensive discovery while the council may think you wasn't provided enough information on compared every time we produced compared information there was another motion to compel additional compared information the circle of discovery of the scope of discovery  never restricted it kept expanding and the trial court of the district court judge were scoring act and keeping reigns on discovery that is proper and reasonable and a great in the issues r not present because we have a dismissal without prejudice of claims in a different form the federal court mr grown no longer has federal claims and of course when you the russian all of with that frowning upon them i dismissal of prejudice is the specter of these these these cases these claims being revived and back into federal court which obviously falls fall yes but if the district judge had granted a motion to dismiss the federal claim and then said i'm not going to take pendent jurisdiction of the state claims and they are dismissed without prejudice that would be a final order and you would be entitled to appeal that but that's not what happened here what happened here was you sought withdrawal of the federal claim it wasn't dismissed because the judge found it lacking in merit it was dismissed because you chose to drop it which is fine that's your right subject to appropriate conditions set by the district court or the district court then said conditions you could object to that you could refuse you could withdraw your motion to withdraw the federal claim and then argue later that the judge had in appropriate conditions but you didn't do that either you accepted the conditions and agreed to the dismissal so i'm having a hard time seeing how you were aggrieved by the judgment that you asked for that you agreed to