erred in holding it had jurisdiction over this case on the basis of a finding that america one of finance corporation had been sued into class actions over the same subject matter in the proceeding three years a second question before the court is whether in granting summary judgment to both defendants the district court made a mistake in findings of fact and refused to acknowledge that certain facts are in dispute including whether mr sing got the ad on products that were promised to him and if so whether he paid for them in order to determine whether the district court had jurisdiction and whether mr singh did not get the products that were promised to him it is essential to review the key facts chico lawsuit in the state of california i highlighted on the front page the words on behalf of themselves and all other similarly situated these are the words that the police cherry picked to try and prove that this is a class action but nothing in here suggests this is a class action there is no citation to the california rules for class actions and i'm going to use the word class action in the complaint for for it to apply i don't know that you need to use the word class action shot but you do have it's very clear that you do have two sites to rule twenty three in the federal context or to the california equivalent for this to be a class action here there's no citation to those rules  the rule in california there are two of them that are mentioned in the briefing and neither one is mentioned neither is rule twenty three none of the indices of a class action are present in this complaint there is no citation of the rule twenty three there's no class definition there's no  proposed class there's nothing about this makes it a class action the words on behalf of others simply exist here because this is a case you can injunctive relief which of course could affect other people but if you turn to page  you'll see this is also a case about something called in viral guard and viral guard is not at issue in the present case so this is also a different subject matter now turning to the next complaint you are in for zero two you are five one this is the gonzales lawsuit in california again that at police cherry picked these words that are highlighted the cover page on behalf of herself and all other similarly situated aside from that which is not controlling there is nothing in here that indicates this is a class action lawsuit no citation rule twenty three or its california equivalent case law holds that when such citations to rule twenty three and it's a corner lacking the case is not considered a class action for the purposes of a local controversy exception to if you would please turn to page four for you also see that this gonzales lawsuit which is one of only two lawsuits cited by a police when they claimed they were class actions against american honda you'll see that this was about an item called lo jack and item called service contracts and i am called easy care gap which is a type of insurance i believe none of these items is at stake in the present litigation so this is also a completely different subject matter  saying that the local controversy exception home see jersey city exception require a remained and the court denied it after the court denied it we filed the mended complaint where we inserted a federal claim however the supreme court precedents are very clear for two hundred years because why does that matter what judge scalia explains in his decision group of which he wrote the majority opinion for he says caterpillar decision is a very limited exception it's it's used in situations where diverse there's diversity jurisdiction and then it's defeated because the diverse party is dismissed but this is not one of those cases we don't have an issue of a diverse party being dismissed  explains that caterpillar did not change the law the law goes back two hundred years as he points out in the group of decision and the law which goes back to the case of pullman and previous cases says that when you're considering jurisdiction you have to look at the complaint at the time of filing and there are opinions from circuit courts in this country in just a courts that apply that rule to kafa and the local conferees controversy exception so it's necessary under the law the mandates of precedent from the supreme court for this court to also and for the was a minute but it's contrary to u s supreme court precedent to use that amended complaint as a basis for determining jurisdiction and the cases are cited in our brief and i think our reply brief is a very good job in answering their discussion of caterpillar and citing cases that have distinguished caterpillar and explain why it's so limited in fact caterpillar itself the cases they rely on is not even a case about jurisdiction it's a case about a statutory  defect just explains that in the group of supreme court opinion the problem is that there's congressional conditionally pass statute which says that federal jurisdiction exists under certain circumstances based on that statute record for you to review but even if i had argued it now for the first time it's an issue that you can still consider and remand on the basis of jurisdiction so there's no way you can waive it by not arguing it or by filing a minute complaint it doesn't get waived its is an issue the last is just just a part of me as justice scalia points out in the group of decision you can raise this issue five and half years later you can raise it after a trial you can rise and raise it after a judgment on the merits and that's  sticker this is all the explanation he ever got according to our expert lou and that his declaration is in the record a dealership should explain each one of these items verbal and in writing and obtain a written signature of consent to purchase these items here this is all the none of us actually knew what it really meant so we had to consult an expert in traffic i would have this mean even though we're lawyers and we're accustomed looking over papers we had trouble figuring it out ourselves the salesman who worked there and sold this car had trouble understanding it  the customers do not understand it so i know this consumer protection act in washington i have to show has a tendency to deceive you need to shift to show that someone is actually deceived so i mean in and of itself the sticker proves the case so as we found out through depositions and  consulting an expert lynette who's been working in the field for forty years new car detail and dealer prep refers to when a car is delivered from the manufacturer to a car dealer it comes with plastic and they have to remove the plastic take off the stickers that affixed that plastic to the car if you take off the covers on this seats and basically meet up so that it's ready to sell now that sounds fine with the problem is the dealership already gets paid for that by the manufacture their current cost is more for a new car detail and dealer preps they've charged twice for the same service once when it was their peace maker and a second time on this small sucre the dealer's attendant so that's just one example to duplicate of charge our expert lynnette says that's fraud he also says he's never seen that any dealership in his forty years of work we do however have also a presentation called car dealer add ons was made at a conference by the organized by the national consumer law center and in here they mention typical car dealer add and deceptive practices and this is one of them they mention that this idea of prep here in the second to last page of it says that some dealers like to charge fees for work they have already been paid for by the manufacturer getting the car ready for delivery to a customer pret fees this is look for double dipping and this is a just a textbook case it's almost as if the dealership took this car dealer add ons presentation of what not to do because they're deceptive practices and used it as a playbook on how to run the business because all the things are highlighted here are things they've been doing according to our expert according to our client harvin are seeing who purchased the car according to the salesman who sold it to him real k szell and according to anybody who takes a look at the paperwork so the knows what dealer prep means the next bit of jargon here is pro pack but charge five hundred twenty nine dollars for it on the small sticker and it gets added to the price of the car so what is pro pack they don't explain it anywhere there is a menu that lists is like a new restaurant one page it's in the record and it lists items you can purchase if you want to this is what it looks like two thousand and sixteen accessories it's your one and five and there are at least several types of protection package at the bottom in the price and what they include now the problem is they never use this menu they never showed it to the customers they never shipped mr singh this menu does not appear in his file it does not appear in any of the deal files the salesman who worked for them to sign his declaration that they good morning honors and may please the court my name is shawn comments on behalf of defendant america hundred finance corporation and i'm sure in the time when defense counsel for the dealerships on jurisdictions your honor there's two lines of authority that control and determine that we the court had jurisdiction at the time of judgment the first is caterpillar from one thousand nine hundred six where the defense the plaintiff in that case had filed a motion to remain and and the supreme court held the plaintiff had preserved the objection but it nonetheless found that because it was jurisdiction of the time of judgment that the adjudication could be upheld and the second is this court's decision and retail properties in twenty fourteen where again a plaintiff objected complaint after removal to add a federal claim then the jurisdictional question becomes moot going back to caterpillar doesn't grupo would limit caterpillar to situations where the jurisdiction of the fact had been cured by dismissal of a party i mean doesn't group homes in and state the caterpillar pretty narrow so it does narrow caterpiller in one respect your honor which is that it talks about caterpillar being a statutory defect because it was a removal and the statute says you should have jurisdiction at the time of removal and so here would be in the same position which is that this would be a statutory defect under group ozone analysis the other part about grupo that's pretty narrow itself is it was talking about whether or not this citizenship of an individual party can be considered to be changed over time and on that one they are saying no we don't have president where the citizenship of a specific individual can change over time in that case particularly a partnership where members can join and leave and they said we have to have a fixed rule for this and that's why they picked the time of filing on top of it group a wouldn't explain this court's decision in two thousand and ten years later in two thousand and fourteen in retail properties and there's also supreme court decision in two thousand where the same thing happened it was a removal the plaintiff amended added a federal claim and the supreme court said we have jurisdiction this court did the same thing in chador in two thousand as well so unless the court has further questions about the jurisdiction the district court will move on to i'm happy to address fifty six d if the court has any questions on that the short version is that the plaintiffs argued in the brief that the district court precluded discovery and that's not accurate two days after removal the district court issued two orders one saying urging the parties to discuss discovery and the second saying if there are any issues with the discovery call me on the phone i can resolve it on an expedited basis so depending on which way the court wants to look at it plaintiff either had roughly seven months from the time of removal to conduct discovery four and a half months from the time the motion to remain was denied or three months from when the defendants filed dispositive motions and when the plaintiff had to file their opposing papers and the record shows that as to american honda plaintiff waited until roughly two weeks before that deadline which had been moved twice to serve a request for production  not act illegitimately in pursuing discovery and failed to satisfy the affidavit requirement of identifying specific documents and then explaining why those documents would have impacted the outcome of this case as far as the merits of your honor's i didn't hear anything about the merits as to american honda and in fact in the reply brief they don't respond at all the main merits argument the plaintiff has been pushing was that there was a provision in the what's called the risk the retail installment sales contract and provisions called a holder notice and the holder notice says that you can assert a defense against someone else that you want have had against the regional sell on this issue plaintiff had their own risk and so you do have a question no question that the plaintiff had a copy of this document from the outset it was produced by the dealership and related discovery in addition to copies of this document were produced to plaintiff in connection with the briefing on the motion to remand and the last point and maybe the most important is that it's immaterial because there's two reasons why plaintiffs could never bring a claim against honda based on the what's called the holder notice one is for food by t l in this instance and the second is there's no private right of action except in less the theory is that the car was worthless and that's not the theory that's been advanced year and plaintiff offers no response to these arguments in the reply brief and that's why much like them the argument about the motion to strike these are much ado about nothing because they don't impact the outcome of the appeal they don't relate to the merits these are procedural arguments that actually end up going nowhere well unless why do like addressing the court i'd be i will hand off the time unless there's any questions about jurisdiction or some other issue thank you very much for your time good morning your honour's may it please the court aaron ritchie representing the dealership defendants i will defer to mr cummins arguments on the jurisdictional issues which we did not take a position on it at the trial court it is undisputed that mr singh went to the dealership the day before he signed the papers to buy the car he saw the car he wanted he selected the car he wanted he negotiated a price for the car and the next day he went back to sign the papers at that price and was delivered exactly the car that he had said he wanted with a few upgrades which had were specifically called out in the big vehicle purchase order that he signed now what plaintiffs position is is that he was somehow entitled to additional upgrades that are not listed in the contract based on the small sticker that was placed on the window in terms of plaintiff's contract claim judge kuhn our correctly found that that sticker was not part of the contract it was not expressly and unequivocal incorporated by reference into the documents that mr singh signed was not mentioned at all also use this window sticker as extrinsic evidence to clarify terms washington laws very clear that extrinsic evidence can be used to clarify the party's intent with respect to specific terms if they're ambiguous but it cannot be used to add terms or very terms that are in the in the contract hear what plaintiffs seem to be arguing since they haven't been able  to find an actual ambiguous big us term they have said that the term vehicle is ambiguous and that the window sticker could be used to clarify the meaning of what vehicle it was that he wanted to  purchase but that is not true that there was no ambiguity about what vehicle was the vehicle he wanted to purchased was the vehicle that he had looked at the day before and said i want that vehicle and that is the vehicle that he got what the plaintiffs are doing is using and the sticker to argue well he should get extra upgrades beyond the vehicle that he looked at and beyond what was listed in the contract that is an impermissible use of extreme to extrinsic evidence seven thousand three hundred fifty dollars and seventy nine cents correct so as a consumer how do you know what you're getting but you know what you're getting because you were shown the product that you're buying and he said that's the product i want and they deliver you that product but you know they tell you we're going to clear coat your car that's also  it's clear what have to be listed in order for it to be part of the contract if it was not on the vehicle that you looked at and said i want to buy that car and you were expecting them to add an item to the car that you said you wanted after you agreed to buy it then that needs to be listed you should expect that there's going to be upgrades made to the product that you agreed to purchase if so if i negotiated a deal and part of the well it could also as we can see from the documents in this case it could have also been listed in the vehicle purchase order because they were upgrades that were made to the car they're not listed here but they were made into the know it so you have to read this contract with the purchase order i think in this case you're would have to because it's not listed in the contract this is the section that you're looking at is an item and station of the pricing yes but i just want to know because you everybody says you keep saying that well was a real true add on and it would be listed but it would be listed somewhere in the contract documents and i forgot where that would be and i guess what you're telling you could be right here in number i think if there was an additional price added on to the price that they were charging for the vehicle the so your base price of the vehicle this is the price we have agreed to sell you the vehicle right second line this is a list of price in the second line as additional items that we are charging you for ok so when the price list they're just saying there's no items that  we are charging you extra for now he did sign this vehicle purchase order which says we're selling this car with with pro package with which means  locks and with what they said prep which everyone seems agrees means new car detailer and pet but it doesn't say anything about a clear coating on the car now having signed that document having given it and i think that he would have an argument that this is part of the contract if they hadn't given him those things that go to gone back and said you said you were giving me these things and i should give i should get them that was part of the deal would it be better if it was listed on the contract ye it is just course he got those things everyone agrees that he got those items that are listed in the vehicle purchaser no but they have not disputed that he got trace locks and the prep we have internal invoices that confirm that and mr singh has never said he didn't get them what he has said he didn't get are two things he says he didn't get the protective coating which is not mentioned anywhere in the contract documents and he said that the pro package should have included all season floor mats which is not listed anywhere in the contract documents now it is and there was an contradicted evidence from the dealership defendants there witnesses that what three m in the sticker referred to was the door edge cards which actually nobody disputes those were on the car plaintiffs have misrepresented the record and saying that dealership defend its witnesses said that refers to the clear coating that the mainly they cite several pages most of those pages are to their own witnesses declaration only one of those pages cites to testimony from one of the dealership defendants witnesses and he acknowledged that there were several names that they use for that protective coating but none of them was the simple term three m they were there were a couple of the names included three and the plaintiffs actually did submit copies of contracts from other transactions where the people did purchase the purchased the clear coating and that is listed as three with a nine hundred ninety nine dollars charge in exactly the place on the contract that we were talking about in the end mr singh never claimed that he had any expectation that he was getting a clear coating on this car he said he didn't know what three m meant the salesman who sold in the car who was the friend the witness to the plaintiff's said he knew it wasn't on the car when they sold it and nobody has ever claimed that he was told that it was on the car therefore the idea that he was somehow misled or just sleeved or the into thinking that it was on the car or that or the idea that somehow there was a meeting of the minds that it would be on the current contract law there's simply no support in the record for that i see my time is just about to run out so unless the court has other jurisdictions i'll simply other questions i'll simply ask the court  seeing came into the dealership he saw the stickers on the car and he decided to buy it he thought those things on the sticker were on the car and we have that in the record so what exactly is he saying he contracted to get didn't get free and clear coating on the front of the car he thought it was there and later found out it wasn't him because it wasn't good to pay a third party thousand dollars to add it if you know it wasn't there you could just well paid the dealership to add it to dealership is taking the piss after the lawsuit filed they sent letters to some of their customers saying come in we'll put on three m on your car will we didn't install it but you paid for it coming in we'll put it on according to our expert there should have been a we owe you notice if they're not going to stall it at the time of purchase and they have to give you  you notice to remind you to come in and have it installed there's no we oh you notice him sourcing file so he paid for it he thought he was going get it he didn't get it he didn't get any of the things he paid for he didn't get a second new car detail because you can only do that once you might take the stickers and pas off once he did not get the pro pack because it was he didn't he didn't know exactly how it was but now that we've looked at the paperwork there's a certain type of format that's included that he did not get and getting to the merits of is so innocent what issues are disputed of issues of fact material where he didn't get the products he paid for them they were not free they'd say they were he did suffer damages the district court said he did not he also seeking statutory civil penalties regardless of whether he suffered damage as well as injunctive relief and it is clear to a judgment