good morning may please the court i'm timothy fisher bursar and fisher counsel for appellant skakel and dean and melanie barr i'd like to reserve three minutes for rebuttal the question presented by this appeal is whether the just record abused its discretion by denying the motion for class certification and then refusing to allow plaintiffs an opportunity to renew their class certification motion we think the court abused its discretion because the district court's decision was unprecedented and extreme we believe that because there is no case that we have found or the coalgate  in which a district court has found that the requirements of rule twenty three dollars were satisfied but deny class certification and refused to allow a plaintiff to renew that motion merely because the class definition we did not request in our moving papers but in our reply we told the court that if the court sought thought that some of the states in our multi state class were inappropriate the court should narrow the class to just those states that the court thought was appropriate in the reply brief for the st time not giving the finance an opportunity to oppose that's true your honor we did not do that is the st time we did it but that's very much like isn't that just hornbook voice fires within the discretion of the trial judge it was within the judge's discretion about whether to do narrow the glass on his own juice all the time we have arguments here  had added to the other plaintive and so it's well within the district court's discretion to me to manage his calendar manage the briefing schedule and decide when to put an end to the amended complaint right yes and we're not asking to amend our complaint we're asking it to renew the class certification motion so that we can seek certification of the california class which the court has already determined was appropriate  ask for a california only class and now you're saying well the court of appeals ordered the judge to give me a chance to renew the class certification motion and hold that's a matter of law that the district court abused its discretion when it failed to give you another bite at the apple there's just no authority for it and that's not how abuse of discretion works well let me lay out what will happen from here if the district court orders not what will happen from here is that a new complaint will be filed and that we will then serve it on defendants they will move to dismiss the complaint that we will file will be word for word identical except it will have a different class representative well i mean whatever litigation options and strategies are available to the parties that's beyond the scope of this appeal isn't it well the rules of civil procedure are designed for the just speedy and inexpensive determination of claims and proceedings and to make us go back to the starting line file a new complaint go through a motion to dismiss go through discovery go through refiling class certification motion all of these things we ferry similar to what has been done and that will take six months a year two years is inconsistent with the just speedy and inexpensive determination of the claim we're going to go back to the starting line and do it all over again and that doesn't make sense when the court has already determined that a california class is appropriate in this case it's also inconsistent with the notion of claims being decided on their merits not on technical grounds it's also inconsistent with the notion of the remedial purposes of for example the california consumer legal remedies act and the unfair competition i don't very much like arguments that you should make the district court that we knew all motion tonight yes the district court denied it which is why we're here obviously we wish we had included a an alternative class in what we proposed we told the court in our reply papers that the court could narrow the class definition so but instead of doing that the court threw the baby out with the bathwater and we're going to have to go back to the starting blocks and do this all over again which will take a great deal of time and money and it's not really in anybody's interest the parties or or the court that will have to hear than the new case the the arguments about our diligence i'd also like to address that because that was a basis for the district court's determination that initial opposition to our motion for classification the top two arguments that they made in that opposition were that the plaintiffs jacqueline dean was atypical and not an adequate class representative but so we decided that rather than letting the process play out and have the court determine that our class was certifiable except for the lack of an adequate class representative we sought to try to move ahead and avoid a delay in the case by amending to add another plane if we did not want to start over the classification process we wanted to have miss barbour's credentials as an additional class representative dealt with by supplemental briefing but the district court required us to go back to the beginning on the classification process and file a new motion but we were not trying to delay and we would not have sought to add an additional plaintiffs except for the fact that colgate made such a big deal about dean's perceived inadequacies and the fact that he was supposed to a typical the ironic part is is that the district court ultimately found that miss teen was an adequate class representative so we really disagree with the idea that we were not diligent in trying to add an additional plaintiff and being blamed for that when we were trying to really ensure that there was not a delay in the case by adding that that plane let me turn to the choice of law arguments which were pretty thoroughly briefed and that i will not spend a great deal of time on the district court also i think should have done the conflicts analysis before it got to an analysis of whether there were sufficient contacts between the state of california and colby the district court's plastered cation decision do not include any analysis of whether there was any conflict between california law and the laws of the various states this issue often arises when plaintiffs seek to assert consumer protection click california consumer protection claims or the claims of other state consumer protection law claims on behalf of residents of multiple states here we weren't seeking to assert the consumer protection law claims on behalf of the residents of the other states in the s proposed ten st we were seeking to assert the warranty law of those states and i meant the warranty laws derived from the uniform commercial code so it is all identical and that there are no differences between the warranty law so by failing you're supposed to do a context now this is st before you go into the conflicts respectfully judge mark as i don't think that's correct i think shots tells us that you do the conflicts analysis st and shut says that if there is no conflict tests for st you find the contacts thing you do complex analysis using the three government three prong tests and how how is that different from your case i don't think that's that's actually accurate i think shots  and so the district court here read this playing directive and stopped at that stage of the analysis and we made a significant showing i think as to the contacts we showed that forty six percent of the class members in the case were from california some of the studies that colgate was relying on the case were done in california so that there were significant contacts in the case but i see i'm getting down to my you know my time but i think that such is really the key case here and that that maza dealt with the situation where the plane it was trying to assert california consumer protection law claims on behalf of a multi state case class not express warranty claims i don't see how there can be a due process problem if the plaintiff is asserting consistent and i want you law that does not conflict across the multi state class good morning your honors robin plato from kirkland and ellis on behalf of colgate palmolive company made me please the court nor to litigate as a class action in federal district court plaintiffs must make the required showing for their particular case the particular facts for the particular class that they propose here the district court concluded that plaintiffs did not meet their burden in showing that colgate and out of state defendant should be subject to a multi state class under california law just because the  litigation was brought in california and that was an entirely correct decision it was applying a very straightforward application of the masa cases judge marcus noted in fact it's consistent with washington mutual phillips petroleum it's consistent with the case from yesterday the initial showing that needs to be made it's a constitutional showing it's in short it's an assurance that an out of state defendants due process due process rights are not be in the contact with to the claims of each class member so that's not twenty percent of the class members forty six percent of the class members mostly class members it's significant contacts to each the claims of those one hundred percent absolutely sorry might have misunderstood your question here if they haven't done that they can't do that in the in the only reason why it was even a possibility or that why they passed that hurdle in monza was because process the standard of review is abuse of discretion i mean whatever the court concluded with respect to that is an abuse of discretion standard the plaintiff has to show that the court abused its discretion in finding that there were not significant contacts because it's so fundamentally a fact finding issue correct correct so because there's really no question about the actual choice of law analysis the just the the real issue before this panel is whether the district court abused its discretion by holding plaintiffs to the strategic choices that they made in this litigation as your honour's were questioning counsel about they decided to repeatedly ask for a ten state class they didn't ask for the california class modification of a class is a matter of discretion as japan noted so if it were if it were otherwise then plaintiffs could literally file a class action go into court assert the broadest class they could possibly come up with and expect the district judge to chop it down to size and by the way if the district judge doesn't do that it would be an abuse of discretion that's their argument and that can't be the case a judge has to be able to the private reply brief in a footnote was to potentially get rid of two particular states i think is delaware and missouri it wasn't an alternative california only class and also again i'll go back to the test which is that the significant contacts must be with each class member so forty six percent is neither here nor there if we're talking about an out of state defendant that's not the test so then we get to the next issue here which is whether or not the court should have allow them another shot and this is a matter of diligence it's the primary issue under this court's decision in johnson versus mammoth recreation is whether or not the plaintiffs were diligent the party seeking the amendment to the scheduling order was diligent and here we detailed the lack of diligence in this case the court which was uniquely positioned to know exactly the details and history of this litigation went through the lack of diligence in this case in fact the court when it when it allowed the nd complaint with the new class rep and the  motion for class certification explicitly warned plaintiffs in open court that they were on the court's radar the court said quote even though it's a very close call and i'm tempted to deny the motion i will grant it i'm not happy about it i must let you know i think you could have done more but i'll let you do it this time but i guess this becomes a warning to you you're now on my radar so if there's additional instances where i don't think you've been as diligent as you could then the rulings might not go in your favor and quote and that's exactly what happened there was another instance where the plaintiffs were not as diligent as they should have been and the rulings in and go in their favor and frankly a court has to be able to control its docket it has to be able to issue scheduling orders and make sure that the little litigants in front of it are at hearing to those scheduling orders and it has to be able to draw conclusions about whether the litigants in front of it are diligent and whether they're not diligent and when there are consequences for a lack of diligence and that's exactly what the court did here a district court's ability to enforce it's scheduling or is actually the quintessential exercise of judicial discretion and all this panel can do is review those the court's rulings for abuse of discretion and that's there's just no there's plaintiffs have not cited a single case a single case that actually holds that any of the court's decisions whether to sue a spontaneous modify the class definition or not to allow plaintiffs yet the rd motion for class certification but i think any of those rulings would be an abuse of discretion unless the court has any questions i don't have further argument on these topics thank i'll be brief one case i'd like to point out the court is the cream case which was cited by colgate in that case the plaintiffs brought a motion for a class sort of case of a nationwide class this is the northern district of california judge hamilton of the northern district denied that motion and said she wouldn't consider whether or not the plaintiffs could file whether or not to certify a california only class which the court had deemed appropriate because the quest had been made but then subsequently the court allowed that renewed motion to be filed and certified a california only class and in the so i think that's what we think should have happened here is that the court should have given plaintiffs an opportunity to certify the the court determined was the appropriate class colgate and it supplemental brief to the court following the hearing on the class or if occasion motion where were the court ask for supplement a briefing about whether the court had the ability to narrow the class definition on its own said that where rule twenty three dollars is not satisfied for a multi state class and a plaintiff seeks to remedy that defect by narrowing the class definition to a single state the appropriate and well worn path is a renewed motion so and then the colgate cited four cases including the creme case so that's what we really think should have happened here is the court could have given us an opportunity if the court was unwilling and the court had the discretion and was unwilling to narrow the class on its own the court should have given us another opportunity to do so and the result of that unwillingness to give us the opportunity will be to find a new case and the wasting of significant time on behalf of the parties when everybody knows that in a california class is appropriate here the court went through all of the factors under rule twenty three dollars a day and under twenty three dollars b three and found the certification of a california class was appropriate that can't be denied so it's make us go back to the starting line file a new complaint go through the pleadings stage with a motion to dismiss discovery and the filing of a new classification motion and the