had mandated course we don't even reach that if we agree with you on the form to find that that's correct your honor you don't need to reach that issue if you agree with me on the first issue right apart from that south coast is trying to argue here is you can look behind a district court determination on jurisdiction and say one of that wasn't really jurisdictional that was wrong so the district court said i'm not going to grant subject matter jurisdiction because i think diversity jurisdiction only can be invoked by people with blue eyes so close with say well certainly that's not a proper basis that's really no different than what happened in this case he she was in front of the district for on the state order and he said this is a jurisdictional or so that been answered by a court what the courts have said is if they court makes an order that lacks something matter jurisdiction even if clearly erroneous it's not with you even if it's clearly procedural and it's determined that the fourth in a rule was something to run procedural and i understand that the that particular court had looked at the issue of whether there was diversity jurisdiction under the local defend that role was the same question as whether yes the court did say that to the extent i so you're right this this this circuit is not address the question you're asking us to disagree with at least those circuits and some others when you say there is no and let me explain a little bit i think one of the issues that's come up the early fourteen forty one being the local defending cases talked about a situation where the case proceeded to judgment or some action was taken the plaintiff was unhappy with it and said wait a minute no local defendant can remove send me back to state court which was the same paradigm you had grubs where the court said you can't you know you going to judgment you've won waived objections to removal jurisdiction the later cases have taken that and then said well grubbs applies any time beyond the thirty days any time and here we have a petition filed on the twentieth for removal of february and or even motion on march thirt and i think there's a key difference here and the end what grabs talked about is waiver ok does thirty days automatically way that would happen in this case was on the twentieth of february there was an extant order from judge whop saying that there was federal officer jurisdiction under the facts of the prior case which were the same facts of this case we had a new petition for removal and had i moved to remain and these just on diversity jurisdiction while the court might have said you're right within thirty days but there's federal officer durst action why should i have taken the futile act in moving to remap march fourth two weeks after this move motion or this removal petition is fi the district or i'm sorry judge otero is his order saying judge hobbs order is reversed there is no federal officer jurisdiction now in my mind there's no basis for jurisdiction under either wrong it's gone i no longer have a feudal basis for moving to remain with the dating and march fourth two thousand and four and immediately thereafter we asked the district will you voluntarily agree to sign this kind of case back to state court the answer was days to remove a case once it's removable and there what happened was there was some discovery the case was removable on a federal one federal question grounds but it required the consent of all the  require removal there was no basis for a federal officer removal so we're going to let the defendant remove once these new facts come to life and under whether fourteen forty one b is procedural or jurisdictional there's no way it could have been waived by my i get back to the question of grubs and way for them and drugs which is the latest supreme court announcement on the subject does not go so far to say that mere lapse of thirty days is a way rob says you have to take some affirmative action if you you know we have that even though it's a question of you know should i have filed a motion we have to rule makings that are based on the same basic legal principles the same basic facts the same basic arguments that are consolidated in the state court to be determined together why would i you know what would be the purpose of seeking to split them apart when we have a rule and in the context of robb's and in the context of waiver i submit that given the facts of this case and the ruling flip flopping in the interim i don't believe there was a waiver let me i'd also like to very very briefly address what i think is a lot of there's a suggestion and that in the  these briefs about what we've conceded on diversity we've conceded the amount of controversy there was no allegation and in the removal petition of an amount of controversy has not conceded anything there are still some subject matter jurisdiction issues here that were never raised by the removal we haven't conceded that a writ of mandate against the state official is a civil action within the meaning of fourteen forty one because i believe there's case law to support the theory that it's not and we haven't walking martinus post the briefs in this case that case was filed last was two weeks or week ago so it was it was something i read the case and in going through the record i started thinking you know it sounds analogous at the very least duran is a case where there's two separate  considered in a broader context than the normal removal statutes but in terms of resetting clock reset the clock essentially for filing a filing to remove the case essentially speaks not to resetting the clock or t