it doesn't appear in the or in the record that he struck them from the file and a page for all seven of the record there is a declaration submitted by lewis alister proving that greater than fifty percent of israel discount bank was owned by the foreign state  court has an independent obligation to determine whether or not the remained was sufficient which goes back to the foreign state question because on the basis for purposes of removal a foreign speak just like with subject matter jurisdiction only has to make a prima fas that referred to count acquirements no it says any action brought against a foreign state under yeah you go on this court allowed a third party defendant foreign state to remove after it acquired an interest in the party statute that is a different statute but highly different stature but the court of wellington it's not clearly in terms of comparison to the fourteen forty one a the f b i see removal statute doesn't use the word defendant nor does the foreign statute but what addressing your concern the court of appeals are uniform that a third party foreign state defendant has a right to remove a case even though there wouldn't otherwise be original jurisdiction the armada has case i believe  motion filed to review and and there's no question about that raise all the same arguments that that he lied upon and he didn't strike the motions from the file he did was vacate the hearing date but i will read it somewhat differently and the reason that i would read it somewhat differently this is that when i hear some place in my i have four thirty five and four thirty seven of the record it is where it sat and i would read the first sentence of the court's first motion at four thirty five or explains on the court's own motion it's vacating all of the motions that explains when the date was set and then you read for thirty seven which is the actual remained order itself and the court want to save a little bit of time for rebuttal but i want to respond to the point and i would say that we should go with the face of the order itself and the policy purposes of calne arms which is to give a party asserting removal and here we specifically invoke  lively no to note that in the ninth circuit typically when you're talking about a procedural error or procedural defect you're talking about something moodle something in terms of timing a filing deadline for example this is not we're talking about statutory construction here whether there was the power for the federal courts to take this case at all and the court has actually know that there was no original jurisdiction at all for the case and there was no removal jurisdiction congress knows the difference between an action and a counterclaim a civil proceeding they know how to use these words in the statutes when they  foreign sovereign immunity sacked in one thousand nine hundred seventy six they were well familiar with the concept of account of claiming they were also well familiar with the concept that only defendants could remove that had been true for one hundred years so if they had intended for foreign sovereigns who were defendants to be able to remove surely they would have said so in the statute it's not hard to see that you're dealing with a foreign power only for a purpose and so this motion i do i do believe that's a factual matter that is what we put in our motion to remain below and that is what we said in the appeal we do believe that's actually issue and we would be entitled to discovery on that issue right now jurisdictional issue we've never had an opportunity to do discovery on that in fact i'd like to point out that the the whole reasoning behind the ban on appellate jurisdiction that forth in the shamrock oil and it is set forth  can't exercise to a spontaneous thore so it is important here just what the district court did if the district court acted on its own if you read the record that way then you have then it's a little bit more complicated about what really happened here i think if you compare the first of all we try to explain very clearly in our papers exactly what happened the most interesting and was sitting in the court for a week before the court issued  is clearly contemplated by federal rule of civil procedure twelve was neat this is not simply coming from the court a party time we need within the thirty day action against had congress intended for cross defending ounce or any party in any capacity to be able to remove they would have used different words from the words they used the other reason in using the term action against and reading the foreign sovereign immunity as act as a whole i'd like to direct the court to a few different places first of all when congress enacted the foreign sovereign immunity set after it and then did the diversity statute and the amendment is discussed in footnote five of argentine republic pers so what they did specifically was they provided for jurisdiction for plaintiffs foreign sovereign against citizens of states and as explained in footnote fawaz of the argentine republic versus on route a has case they felt they had dealt with descendants in the provision so they obviously thought actions against one is for defend that's one step of the analysis in other statutes we've seen that they know how to use the term counter claim and for example they use it in fourteen forty seven so that argument doesn't seem to help because congress is using a term that appears in their own rules of civil procedure it doesn't seem to apply to california state and how it treats these actions well even more fundamental and this is noted in shamrock and again noted encourage or the jurisdiction of the federal courts is not defined by the states it's defined by federal law it's defined by congress we don't go to the fifty states we're definitions how we set into these jurisdictional boxes for purposes of federal jurisdiction we go to a federal statute had congress intended for any counter defendant to be able to remove it what is that so it did not stay still i think we have to look at the language of the statute and we don't look at the statute in little bite as the court we have to be guided by the statute as a whole and we also recognize that federal jurisdiction may be very peculiar it may not even be balanced and if it's real discount bank is just appointed because  couldn't final in federal court to begin with because mr shaw is really it's fight it's with congress not not with the courts and not with the law that's the way the law is written so  honor is that first of all there is no exclusive federal jurisdiction for actions under the foreign sovereign immunity to act and it's very important to remember that in for limited in the statute itself state courts are just as compet i understand that there is case law that indicates that in actions against foreign sovereign instrumentality assuming argue when you know there is a real discount bank is in fact a am not conceding that your honor is to all causes of their action i attempted to respond to your question as fairly as i could under the circumstances but i believe your question is premature in the context of this appeal  forty one eg the word defendant appears which is how the shamrock court got to the bar on tanner claim removal but in fourteen forty one d the word defendant doesn't appear it is a foreign state with an action brought against it however that is conceived second oddly enough in this particular law congress has do deferred to the states in defining the terms in a fifth circuit case called delgado the court looks to texas law for the definition of action looked at the legislative history and confirmed that the purpose of fourteen forty one d was to allow for removal for cases involving foreign states not just a foreign state defendant but a foreign state counterclaim defendant foreign state third party defendant and every case to look at third party defendant removal by a foreign state has permitted the removal so here we're dealing with something different than shamrock we can't rely on shamrock it's a different rule conceiving of the different statute we have to look at the specific case that cited in our brief considering fourteen forty one team there are no question