the key case the president do you think intro the president controlling is ellenberg versus apartment or chassis fine nine hundred f third one ninety two from the square two thousand and eight that is absolutely on point for this case and covers everything we need to do i think it's important for the corps to understand that both jurisdiction and the remained issue are inexplicably extremely her twined there's really not a good way to separate the two from each other as the court discus ellen barkin the key point here is is that the words of the removal are not the relevant point the key point is the procedure that is used that is that the notice pleading required by the statute specifically states that you must put it on put the court of the parties on notice as to what is happening here it is the same standard is used for complaint rule  this was a situation where the court had sue is ponty taken action without giving the parties any opportunity to for notice an opportunity heard which is precisely what happened to us i think it's very interesting i like to call the other way let me say about  necessary i don't know that it is necessary to give anybody notice an opportunity to be heard of they get the decision right is no requirement you know requirement for notice and to be or i would agree your honor i would  two the panel was very concerned about that very issue of that this was a situation where there should have been notice and i only because they may be a suspect because the power had that happened then that all the issues would have part of the district court in the district court then would have been able to understand the issue as after the fact the circuit court wanted the district court understand it absolutely right and that's why i'd like to to direct your honor to the case that we we have inside in our brief because relatively recent to west virginia had a very similar case just recently comes versus t v although finance it's so industry one fifteen cv seven zero eight two and in that case the district judge recognizing that there was a understood that there actually was subject matter station and yet still said i want specific magic words which is the standard which was repudiated by this court not only numbered with many other circumstances in this case though the judge was faced with a notice of removal that said that there was complete diversity is yours and then later almost six months later she looked at that was an amended comply and that complying did not have principal place of business so she's got two things that she's looking at there she didn't just rely on the notice of removal she looked at both of those things which indicated i would suspect her that she believed that  that had not been considered in the notice of removal the principal place of business somebody didn't know the law that had not been considered so tell me she relied on skiing  district court whereas this was a removal in skins the ability to fix it is easy you fall amended complaint and that solves your problem in this situation but in removal the only way to solve that problem this court said that the mere invocation of magic words by the district court is also not sufficient don't you think when you look at these cases probably the state of the law and i don't know all the ellenburg has dealt with every bit of this part of the state of wrong that still may not be revealed by this co i agree but the key phrase there your honor is had all the right facts and that's the point here is the district court drilled into facts that no no no i said is not so much maybe an incantation  it or didn't say or didn't played or had a hearing today and have a hearing and what the judge did or didn't say or what they cited to that we can take a quick look at that the see if jurisdiction exist for us to take the appeal and then it becomes a tougher question and it may be if the judge as odd as it may same and i'm not saying we have to rule on this point in this case but it may be if the district judge set out all the right factors for  said we may not have to reach said it may be you said you agree with me i didn't say that was so i said it in that in that possible i do believe it is correct the grammar and i do want to sign up to that that those are the two different questions here the jurisdiction question and then the procedure that that in the phrase is uses in skins just as in this case there was some trick matters section the district court admits they understand the subject matter section here is purely focused on the procedure the fact that a particular ok so so so later we get this amended complaint and the command complaint does not show that that notice was correct that's correct you are ok and so based on what the court had before it why would the court be barren about what you said in the notice of removal i think it's important for your honor understand that my client is the innocent party here mr blair was not even sorry prior to the removal he's actually served over thirty days pass through removal so the question of the procedure is already done the time is run and mr blair appears in the case about a month and a half later and of course from my perspective i can't really move the case it's already here i've got there's nothing for me to do here we're in the form we want to be in everything's fine the time is run i've got no concerns all the doors are closing around me the last chopper leaves and suddenly we get this six months later for something that mr blair has no control over and so that's that's a critical issue as well that would have been resolved by notice and hearing what's the status of this case in state court is it moving the case in state court has come to a halt the deal the state judge has recognized that this issue is here he has not said as much and i want to be perfectly candid but he has initially he was going to enter a schedule in order he discovery but everybody has come to recognize that we need to be careful and not trample on this court so much so that the state judge actually applied the federal rules of civil procedure pending resolution court so that there could would not be a problem when we go back to think in fact you have every right to be alive and no way to get back there literally this is the only route to vindicate mr blair's rights and so under the circumstances you have to understand him from the judge's perspective that we manage our dockets and we have pressures to manage the darkness and quite frankly i think it's kind of commendable that district judges go back and we have a district judge just for it was a district judge as you know i was it is you just referred so you the pleasure to manage it docket and for a judge to actually go back and look at and pay close attention to docket that's actually generally a good thing so looks like a lot of good things happen and we find ourselves in a little bit of a jam here  within twenty four hours of that remainder i had my roof fifty nine motion filed with the documentation well if this judge believed that she had found there was no jurisdiction she even entertained i mean she did in fact is you think that maybe as a district court we always have jurisdiction see if we have jurisdiction so somebody we can sometimes say we have jurisdiction we can say we have your station here this appeal but we meet you may not win the appeal once we decide we don't have your honor the issue here is shifting the burden of the appellant's indicate that the court below lacked authority to remand in essence of the jurisdictional predicates were not met they were trying to not state that they did not have subject matter jurisdiction it's clearly stated in that decision that decision of course predates the current fourteen forty seven c by decades but of that ends in no ok i do not but in this case the appellant's in their brief would paged to acknowledge that a court in her first order stated that she did not have in a case where there is no authority for her to proceed for the district court to proceed there's like was no authority for there to be a review in a score however we are here and i would indicate that not only was the complaint absent of any indication of the principal place of business the rescue or the amended complaint was absent any mention of the principal place of business risk here and the petition to remove was absent any indication of the principal place of business risk here dramatically different from ellenberg which they rely on you raise an objection to the petition to remove your honor we weren't in the case at the time our firm was not but that doesn't require a motion to remand the court sue sponte in fact the section requires that when it appears to the district i work i'm sorry our plaintiff raised  objection to the procedural defect then thirty days no your honor no that did not occur of course this is not a procedural defect matter this is a matter where it appeared to the court that did not have jurisdiction subject matter jurisdiction and the section states that were not appears even all the way up to the tate of judgment that they don't have an option they have a mandate to remand it why isn't this a p the court looked at the matters before it that would have brought the case to it with jurisdiction had they been pled and they were not not in anything filed before so you think of a cour as i don't have subject matter jurisdiction by just looking at the documents than that and the document is like a procedural defect that you think those than the magic words do matter well you're on to  in order the court can't provide omissions in pleadings the court can't reach down and take jurisdiction when none exists and at that point the court had no jurisdiction no subject matter jurisdiction of this matter where they're because the court didn't have all the information but the underlying fact provided subject matter jurisdiction the underlying facts even in that in the case that it is only you don't think the underlying facts you don't think there's any subject matter jurisdiction in this case the subject matter jurisdiction is the time the court would be required to have jurisdiction initially did not exist that's correct your honor what facts does it have to do we have subject matter jurisdiction nail there can be a decision that there could be a decision that's different that's a there's no subject matter jurisdiction that well that would be no different than putting the district courts below on a fact finding expedition any time a matter was brought before them the didn't need to jurisdictional predicate your honor the shift in burd you talked about when you first yes your honor it's not murder was on who the burden is on petitioners always that's a matter it's been well established forever and it's not a burden of the court to provide omissions to encourage amendments were to encourage motions for e mand the section states that when it appears that they have no jurisdiction they must remain hand is not an option with a court nor is it something more like you know well that would allow that would allow a plaintiff to say a procedure or defect or missed that deadline and then raise the fact of a procedural defect later and assert that's lack of subject matter jurisdiction destroy that thirty day notice  that the defendant this particular defendant it took the defendants that employed him rescue or an agency of over eight thousand locations and thirty thousand employees who took them three in one half months to find the defendant and to find counsel for the defendant in this case that wasn't something that these nine year and three year old children had any responsibility for your honor and they came into the case later but that doesn't mean that that somehow allows the petitioner to go back and reposition the court where you would raise the  know your honor it's not necessary in this case no no in a normal course the party they move forward did they ask for removal they remove the case no i don't know one no one made a motion for email and there was no motion  party who doesn't want to be removed have thirty days to point out to the court that the removal petition is defective they do write to you you have thirty days to do that that doesn't foreclose your honor to notice that it didn't appear and remand will now issue a question but your theory then would say we don't have to do anything for thirty days but then we could say to the court later there is something wrong and you don't have subject matter jurisdiction although it looks like a defect a you would get a raise that they think as a subject matter gestation issue after the thirty days now was never done here your honor i don't ask why i don't believe we would have it right be because your honor the court why don't you do us why didn't you raise that timely and you would say we didn't have to because it's subject matter jurisdiction because the lack of proper pleading to establish jurisdiction would be yes what you are getting right now that that defect their failure to raise it created a subject matter issue that's what you are doing anything that would be no but isn't that correct that's partially correct you have been harshly correct you think it's correct that they did it correct to give the basis in their removal petition to establish complete diversity for subject matter jurisdiction for that is exactly correct and it is and we fished it out of you and isn't that the basis for you saying there's no where it wasn't sided specifically but by reference and the court found this court found that instead the court wasn't reviewing but was allowing relief because of certain methodology is of counsel in the court below and they were providing relief under rules eleven and rule sixty b but even in that case this court did not say that that was a review decision but only relief for cause under rules eleven and sixty be distinctly different than here are in this case originally this case could have been brought there all originally could have been brought in federal court if it was if  and one and prior to the new language of the section your honor and not only that this case doesn't turn on those decisions this case is that as counsel's indicated is one where they berg controls ellenberg does not control because in that case there was never a finding of the court expressed in an order but they did not have subject matter jurisdiction in this case it's been twice expressed the request for reconsideration under fifty nine sixty when the court considered that council and for the appellants indicated that a court had not found lack of subject matter jurisdiction the court in twenty twenty fifteen decision decided it sided again in the february twenty four twenty four fifteen decision that's two different times it's a court stated expressly why the court had remanded the matter under the scenario is that jurisdiction by the time it came to score did exist but at the time the court lacked subject matter jurisdiction and indicated the same in its order as it indicated in two orders here finny what the court dead but i do think that judge ford question underscores maybe even more directly what i was asking but what do you do with a case the operative facts underlie facts do lie and create subbing that a jurisdiction but there's just either because of some flaw and some paper somebody's foul the court just doesn't realize that corporation which didn't resign its own principal place of business risk here the petition for a movie was not filed by the individual it was filed by rescue here at that time as an individual when he got into the case  hours he raised that issue that maybe i don't have the exact timing in that your honor there are a few things that i would mention there was a question that i think is critical of the court and they ask whether or not there have been significant proceedings in the state court and there have been there have been depositions taken these children who were at the time of the abuse were less than nine one being last and four have been subjected to examinations experts have been selected expert opinion and been received the matters been scheduled for mediation there have been motions to seal records but petitions to removal they are predicated on any stage of the proceedings that state court all day they're not your would be doing that we would be urging that greatly in whichever court you haven't what they've gone through all of the tender age of the children but i mean just justice them to both sides it would make sense to do it for judicial resources so much but question i'd like to to emphasize that remember subject matter sections two parts complete the first the and controversy the principal place of business as a supporting back to that it is not the jurisdictional element so that i think that's very you didn't say the magic words that's that that's what you wanted you had to say magic words no your honor i'm all i ask is an opportunity to provide information to the judge says no you think the difference is between it not then it becomes a question of how do we how do we what do we do to decide what the district court did this record operating in good faith trying the best they can to do the right thing how do we then decide whether or not even  category that we can even look at it what do we look to and that's what i said from the outset i think it sort of it is we look at what the district court actually did and looked at no matter what they call it i agree and then we have to decide based on that and that's why i think there's a possibility that at the district court look at exactly the right factors let you follow everything you wanted to file and then still said sorry you you filed it you say that i know what the facts are you're the facts no subject matter jurisdiction it may well be no review by this court i agree had i had the opportunity to do so i'm going to have the opportunity because even if you do have the opportunity that means that maybe the district court would have decided based on the district court judge who did the very best with what she had in front of her and yet in another circumstance reward one who had everything in front of him and absolutely did it wrong as you could do it is a let is a little bit