so where there are two issues on appeal today the first threshold jurisdictional question the second an issue about the merits of the case right out of the gate i just want to distinguish this case from the last one received from the defend the first question the jurisdictional question is really whether the this case should have been remanded the second time whether the defendants are entitled to centrally u the decision they made earlier in the case which was to undermine their own removal petition by alleging that or asserting that the plaintiff had alleged a sufficient injury in fact or concrete in particular ised injury there are a couple points about this record that need to be made up front first is that the defendant's argument is seems to be premised on the notion that it first learned after the district court's removal petition that the plaintiff it said some magic words that the defendants identified at page twenty six of this record in a footnote that's actually incorrect the plaintiff said the exact same words that are contained in that footnote page twenty six of the record at page four thirty six of this record in a joint statement to the court wherein the plaintiff said we are indeed seeking the recovery for injury in fact relative to this fa to the extent that there's any issue about this that settles it and in fact that was one week after the spokeo decision and one week before the defendants filed their motion for judgment on the pleadings wherein despite the plaintiff's assertion to the contrary don't have to you're what you say it in hears in the allegation that we would your honor although it at this point it certainly going forward after spokeo it's prudent for plaintiffs to include such an allegation but it's really as far as we're concerned that inheres in it and again to the extent that there was any if if what the defendants are saying is well we just didn't know we hadn't seen any paper in this record that indicated that the plaintiff was trying to recover for injury in fact such as paper toner in ink we you've alleged that in the complain we have alleged and your honor and our positions been that all along and apparently it's the defendant's position as well because they're the defendants that it brought it back up a second time and they don't see i know but you can't stipulate the standings so i just wondered if you don't allege anything about paper toller and the like whether the complaint adequately alleges that sure it with the caveat that up the cases at my fingertips there is a thorough t for this of small businesses fax machines the use of their paper toner in ink and that's something that this court also recognized in a two thousand and three decision missouri acts wrong next in where it indicated that the act withstood constitutional challenge and in part on that basis that that was a part of the motivation for the passage of the act so the plaintiff in this case is precisely the type of small business that congress was seeking to protect from from that type of injury  facts but aren't there all kinds of folks to be that are using voice over internet and so you can have an effect on that if you are using any paper torn or anything else it just comes as a fax to your computer because it's all going over the internet what what that indicates is that when a district court remains a case that that order is meant to be final under viewable and not subject to collateral attack what the defendants are essentially trying tried to do here was come up with some sort of end run around that by waiting for us the plaintiff rather to essentially repeat something that we had said prior to the remain and order as an excuse to pull it back up and under the the plain reading of fourteen forty seven that remain in order originally should have been final and the case under fourteen forty six b three do not first become removable at that point it was already clear because the defense in fact removed it and because we've made whatever representations we needed to make after the case had been removed the first time i'd like to turn quickly to the the rule twelve argument so that as the court knows that the district court's obligation here is to construe all the allegations in the complaint in their totality to assume that they were all true and to the reasonable inferences in our favor well this complaint there's really no fair way to read this complaint is not alleging a plausible theory largely based on the defendant's own words that the facts at issue essentially functioned as a trojan horse to solicit custom to solicit customers to make them part of dr directories dr directory and to market them promotional materials the court looks for example a paragraph to well we allege that by using any part of dr directories website users agreed to a privacy policy that the web site's purpose was to collect data for marketing purposes graph thirteen we quote from their users agreement which states that dr directory in fact uses numerous means such as faxes to collect usage data and internet contact and usage data fo urteen that it shares this information with third party advertisers paragraph fifteen that it collects personal info for promotional purposes and that by virtue of responding to the survey the user consents to receive ads from sponsors paragraph eighteen we indicate again quoting their own words that site users agree and expressly consent to doctor directories use a collection use and disclosure of that information paragraph seventeen again quoting their own words essence that once dr directory successfully were someone using this survey to complete the survey as a condition of the honorarium it uses the contact info to send promotional and marketing promotional and marketing materials to that user paragraph and that as the privacy policy makes clear that the facts that issue function is a mere pretext for advertising the commercial availability or quality of doctor director services and the collection of users private information for use in commercial advertising now most of this again your honour's is in the defendant's own words we're not picking this out of thin air these were our position is the defendants represented in their own words what they were going to do with the response to this survey and that all the court needs to do is credit those allegations and this is this is a plausible theory we just need to chin the bar at this point we don't need to prove that the fax was an advertisement we just need to show a plausible theory which there certainly is based on well in this case and the court would like me to address in a different issue dress the subject matter jurisdiction issues first that were raised by the plaintiff move on to the judge when the pleadings to the subject matter jurisdiction issues there's really three main points that i think need to come across from the plaintiff's argument should not be reviewable by this court once we are on removal but their mission here appears to be that there is subject matter jurisdiction because there is injury but to put this in context if you bear with me for a minute i'm going to go through a very convoluted history and try to condense two years down to  places a paragraph twenty eight paragraph forty one two and then paragraph forty six but the provisions that they referenced the only provisions that they reference was forty seven c f r sixty four twelve hundred a four three and a four four those are the two provisions that deal with the notice the opt out notice that goes at the bottom the facts they did not reference any provisions in their count they didn't reference any provisions in the discussion their theory of the case that they were there was no allegation that there was a material deficiency and that opt out notice also what happened in the max this was a pure forgot to put three or four words in your op that that would be unlawful for you to honor and request if it ever occurred as of january two thousand may two thousand and sixteen comes around the spokeo decision and the stream court makes clear you have to have concrete injury cause us to have to look back at the complaint and do what we are obligated to do as officers of the court raise new law to the district court the fact that spokeo had been rendered and raised the issue about whether the court had subject matter jurisdiction and raised the ambiguity of the fact that they're only count dealt with the notice not with an unsolicited fax and then sent judge miller decided not to hold a hearing he didn't hear or statement to require them to say whether they were actually alleging injury which would come out of an unsolicited fax with no consent or whether this was just about having a deficient notice not zero they strategically i'm not sure exactly why but they objected to the motion for a more definite statement they didn't want to have to say in state court but they objected on the grounds of move they said is moot of course we are alleging an actual injury and that actual injury is in addition to the statutory violation caused us to have to decide whether we're going to remove under twenty eight u s c four hundred forty six b three or wait for the court to solve our motion for more definite statement obviously if we waited and had the judge force them to say what they just admitted to here this is about an unsolicited fax the argument before us would have been that we had waived because we had gone past the thirty days that we were required to remove we removed we are now before this court after judge never looked at the  and so what it comes down to is we now all have clarity about what the case is about it is not the forty seven c f r sixty four dot twelve hundred eighty three and four case which is what was in the complaint is that counsel just represented to you this is about an unsolicited fa having been sent and the paper and toner that it took and the damages they suffered that is a sixty two hundred eighty four one and two case unfortunately took two years to get that cleared but we have it and now we have it change it did not your honor and as counsel pointed out the sentence that you rely on the foot seems to have the same wording as this rule twenty six or from may particular lies in concrete injury the fact is they said it's moot and it's moot because we really are alleging injury in fact now to go to counsel's point why wasn't there earlier statement in the report to the court where they use that same alleged injury why w reminding he decided to hold hearings instead what he said is remand order is not that there's not subject matter jurisdiction he said there's doubt and i'm going to remind it for the state court to figure out that out well what else could the state court do take a motion for a more definite statement where we say your honor to the state court we need to resolve this doubt that's that gets opposed which is quizzical how white why are we why is are so much argument here about what they were actually alleging for injury but the grounds for the opposition is the first time we heard them in and see a legal argument that they really were proceeding on an actual injury honor if there's no further questions and subject matter section i will write it out one of the questions why is the why do you think article three standing is part of the remove ability analysis if you look at fourteen forty six you know it talks about or stan your point correctly it would be that you could originally remove the under fourteen forty six b because you have an original federal question once it's remanded based on a lack of standing the querrey is how do you remove once you've established that there is subject matter jurisdiction for federal court and i would assert if that is our flats roughly and so the other way of saying is it was always removable and the standing issue doesn't affect remove ability it may affect whether it's dismissed and remanded that doesn't affect remove ability and i think that's i think that's correct your honor so it's always removable on federal question at least within the thirty days you can the standing issue if it does not go under twenty eight u s c four hundred forty six if that can't be a grounds for removal i would suggest a very odd problem under under the u s c which is you can have removal which we did timely on a federal question room with deficiencies in the injury section get it removed it government it and you can never go back to the federal court and i suggest and this where it is where i was going with procedurally not to criticize just miller procedurally this was  an elegant in terms of resolving the issue of subject matter jurisdiction i think preferably from a procedural standpoint the preferred course would have been for judge miller to resolve the standing issue before hand and not say there is doubt figured out in state court because that begs the question of what is figured out we have to remove or if we do figure it right on removal what do we do in elegant improvident i don't know you know you don't want to say the word but if it's an impro and in fact the statements are very very very similar is it in a more appropriate tool to request a reconsideration of the order of three men procedurally rather than the process that you went through because then the judge you can say judge should better hearing they've said this they've said that and you don't end up in this sort of problem that you've said where where there's  then there's further development then there's a real removal it seems to me that reconsideration timely brot is a much much more efficient tool for this job then then the re re man which which because the problem with you know if this were some order that was subject to review or appeal you know maybe remain or read removal is a more appropriate process but i mean the way it's set up i mean that there doesn't seem to be  doesn't that happen not all the time but doesn't that happen from time to time district courts may be erroneous li ri man cases and the parties you are stuck in state court your i'm not i'm not aware of any situation where remained that is based on action and this isn't just a statement is also an action of them by saying it is moot the issue of injury i'm not aware of any situation where you really mant re removed and then the argue it has been that is blocked because there's no procedural point in time and is brought forward the key point here though and i realize i'm going on time without addressing the merits well we might give you some more time because this is important but go ahead go ahead on the jurisdiction the key point here is as of the party standing today we was no injury and their complaints never changed what's changed though and this goes to some other pleading can change what's in the complaint now you're on a plane adequately alleged an injury twenty eight u s c fourteen forty never changed the company has never changed and and the analysis of subject matter jurisdiction the courts conduct is hardly ever bound by the four corners of the complaint if during the course of litigation the facts of all of an example of this is no max their complaint was entirely different than the case that they're present today their complaint actually includes a count one which is an unsolicited fax account to conversion although today count one count to have basically gone away not from an amended of the complaint but because of an emissions during the course of litigation here we have a complaint that was originally sent back to state court and in state court what starts coming out is what they said today and they've never unseated in a straight shot which is this is an unsolicited fax case under forty seven c f r sixty four dots one hundred eighty four one and discerned your honor is we're left in a quandary and we had a very bad complaint that seemed to be pointing at the wrong legal theory from what they're currently asserting we were obligated to bring that issue to the district court which we did th contested that and they said no we don't need to and that it is perfectly fine again i'd say what they're trying to do is game the system so that nobody knew what they were really alleging and we can figure out whether we could remove anonymous all right when you want to address the merits briefly there put three minutes on the clock and see if you can make your main points your honor the key issue on the merits is a simple statutory construction one so under forty seven u s c two twenty seven a five we have the definition of an unsolicited advertisement that definition has certain components to it if you're going to give effect to every turn there has to be a material that's advertising has to discuss commercial availability or quality and it has to relate to a property good or service the first problem here on the merits is we have a fa never did and their interpretation or could they is take away the standard twamley at all and say you can't just put the pretext existed you have to allege actual facts that make it probable at least plausible not speculative and that's really where we get to the meat of it today so out of all the first minute complaint and they say this is it this is what brings us over the speculative level there's a number of problems with that not least of which is the privacy policy they cite on the footnote says w w w dot doctor director dot com never alleged he saw in the advertising they basically invited the district court to say look at a company's privacy policy and if in there it says one of the many uses the use for information in all kinds of context is marketing then you can speculate that in this case is really had nothing to do about a survey and instead what we're dealing with is marketing campaign judge miller correctly looked at the facts and he said it's got to suggest something that deals with marketing and it doesn't there there's nothing on the face of the facts that looks anything but what it is advertisement in paragraph ten and we allege in paragraph twenty seven which is a page thirty seven of the record that it was wholly unsolicited one point about the district court's order of mand the defendants characterize that order as expressing some doubt about subject matter jurisdiction the court actually looks at that order that's not what judge miller said what judge miller said was the defendants are taking a contrary position it's their burden to show that this court has subject matter jurisdiction but they are now taking in their subsequently filed a motion for judgment on the pleadings the contrary position that this court lacks subject  they are in tension with each other frankly but the court speaks through its orders now if what judge miller was indicating was i thought twice about the original basis for re mand but that gets to your question earlier about sort of the the propriet litigation of questions of jurisdiction of the district court to which the causes removed and the court then continues and says we've relentlessly repeated any remain and issued on the ground specified in fourteen forty six is immunized from all forms of this is a quote review was unavailable no matter how plain the legal error in ordering the remained so if the courts conclusion and we would agree with this that the better approach would have been to give notice to the parties and perhaps maybe even have a conference with us about it so be it but that doesn't change the the backdrop that congress set up that what the defendants are essentially asking this court to do is to legislate a new exception to section fourteen forty seven the turn briefly to  the merits of the the complaint it's it's difficult your honor for us to come up with a better way to plausibly allege that the fax function is a pretext to an advertisement which is a premise by the way that the defendants have said they accept as articulated by the f c c but for quoting the defendants in their own words and saying it's a fair inference that you're going to do what you are proclaiming you will do  d in what purports to be privacy terms to which anyone agrees by completing the survey or accessing dr directories website so you would think this is really a lure or bait for future advertising it in part yes that is one that what you if you read their website and then what they're really doing that is part of what they're doing part of what they're doing and have a big part of what they're doing a very big part of what they're doing and i would say the other part your honor is they are they are getting people to give up rights to become customers of the company so it's actually different than say the steak dinner example where i believe it was in strike or they invited people to a steak dinner and then at the steak dinner and you get the pitch well at least there the the person who goes who responds and goes to the steak dinner has the opportunity to reject the offer here as a condition of as a condition of receiving the honorarium our allegation is when you click through you actually are giving up rights you are consenting to become part of their doctor directory doctors directory not just to receive promotional materials be that as it may i don't think it it undermines the point to say that that the purpose still was to promote their own services via this war whether it's one step removed or two and if that's it through the court i will r