we will start with lopez we thank you and good luck corporations seventeen two four nine seven which judge forrest was able to deem these these claims waive we never expressly asked that these claims be dismissed or waived there is no world room when you say in any the contents of any litigation any point i am not going to pursue a an argument i am not going to object to this piece of evidence i am not going to pursue a claim i don't know that there is a specific rule of waiver in connection with any of those things but we base it on precedent would deem that waived so in terms of evidence or maybe a motion there's usually there's the district court has some authority internal authority as district court to decide w evidence for example could be admitted at trial when it comes to dismissing a claim our position is usually happens is that there is usually either a motion made or motion not responded to so points it so that for example in the removal context the plaintiff would make a rule fifteen motion to amend the complaint to remove the federal claim and the district judge would then decide whether that motion should be granted we're going to hear you this this ruling by the judge came after the submissions or your  it supersedes the pleadings and that would we knowledge that would eliminate or a false a claim but that didn't occur here we never had the pretrial conference we never really had the opportunity to explain our thought process and our thought process was if we wanted to proceed with the new york liberal claims because there was and we felt that there would be some to be jury confusion if we had two different standards you know the standard for joining player which we're arguing because there are multiple defendants in this case and in the under the f a a safe we we were going to pursue c claim we would have had to establish an enterprise theory which is that all these different defendants were really a joint enterprise more complicated it's more complicated with no benefit to anyone essentially so you were control that's  true we decide our our goal of course your honor was to have the trial at that point what we intended to do is to explain to judge force at the conference that we want to do we want to go for the new york liberal claims but if the court was going to well yes our view is that the points are not paid time in half they were paid for every hour they worked but they were paid at a straight time rate in your estimation  and you toss and liquidated damages so that number would automatically be doubled and then there is a claim under new york labor law one hundred five which our position is that the planes will be entitled to another ten thousand dollars each if we ever  courts dismissed the dismiss the state law claims and the courts this court to reverse that saying that the dismissal is at best premature and this court has remands which ends up wasting judicial resources so so mr chapman fell tell us once again what you would have done had you been confronted with judge forest's decision at least as she was thinking about issuing it if she had for example issued an order to show cause or brought this up at the initial at the pretrial conference we had asked for what you were about to get to right i mean you were about to go have a pretrial conference you were unless you were six days before the trial  and decision came down less than twenty four hours i believe before the pretrial conference is the day before i mean the exact time it came down we had asked for one of two things either to allow us to just proceed in a new york labor law claims because we would argue that the court  filing with the court rights rights and jury instructions and void air and various other documents it bears repeating that the that the defendants also submitted we submitted joint documents of the fund its never objected to this and never made a motion to have our claims dismissed for lack of subject matter jurisdiction just really just came out of the blue and no one was given any opportunity to be heard i'll grant you my prophetically that this was a bad decision on her part but wh was it an abuse of discretion our view is based on the second circuit precedent precedent of this court that the courts the district court should give parties notice an opportunity to be heard before dismissing their claims both a claims waived it's not clear if they are waived with prejudice without prejudice and we believe that implicates cheeks house and number two before having all the facts the judge forest not have all the facts to determine whether supplemental jurisdiction should be exercised she made a number of assumptions essentially that we had manufactured jurisdiction which we believe are unwarranted and not even reasonable based on what happened in the case that the defendant had been very aggressive in this case multiple motions have been filed but the one motion they never filed was a summary judgment motion and the f o c claims for lack of enterprise coverage so we believe that at a minimum you should've given us an opportunity to explain what we did and we would then we would see what happens and maybe a more reasoned decision and knowledge that we made and i think we'd be in a worse position if we did that all right thank you very much you've reserved two minutes for buttle and we'll hear from the other side morning judges there is more cook i represent defendants exclusive management solutions group and hugo are birders plaintiffs on their appeal state that  f forest order in which she says and i'm going to quote it to you although their motives are not entirely clear it appears to the court that plaintiffs may have strategically asserted f l as any claims for purposes of manufacturing jurisdiction when they truly intended to litigate only claims under new york labor law which effectively can and should be resolved in state court how are we supposed to review that finding why they did that they did that with they were that they wanted to try the new york labor claims no and in the end gotten this court's the edge forest had absolutely no dialogue at least that i can divine and if you want to point happy to look at it that i can divine about why she was able to go from that to some a malevolent motive about manufacturing jurisdiction and how do we review that as an appellate court honor under the be reviewed under the busa discretion standard and the issue isn't whether there's if there is another possible way for the court to have acted isn't it abuse of discretion to reach such a conclusion without so much the courtesy of asking a member of the bar why you did this you're on your honor by doing this the plaintiffs deprive the court of of subject matter jurisdiction under any federal statute they s i was on the panel was issued after the complaint was filed in this case and beefed up before the pretrial orders were filed in which in my view the plaintiffs initially filing and pursuing the f l is a claims and when in fact i think with the benefit of hindsight it appears that child every was an intervening decision the change the playing field and in this case based on that opinion in order to ascribe an improper purpose when there might have been a proper purpose in what they're asking for is just a remailer and an opportunity to be heard and she may respectfully disagree on behalf of defendants because in the under done the court the court reversed the the lower court and hold the lower court should have dismissed the stay call claims  even if the federal claims are discovered to be paid in the merit list only after the trial begins once at the versity that discoveries made the state claims must be dismissed along with the federal ones here we have the plaintiffs coming in saying we are not going to be we're not we're not pursuing the the actual i think what you're arguing this must be wrong so i'll preface my view you are saying that the district court must forget about this question must dismiss the state law claim i was quoting in this court's opinion answer my question  claims will not without asking for any relief on the federal claims but some only new york labor claims and that's what's presented to the judge under those circumstances and the use discretion rule the if the taurus acted well within her concerns us is that you know this is an adversary system and we have to you know distinguish lawyers on both sides of this case and it seems to me that eight and how many motions before the district court the district court essentially granted in favor of the plight of sere brown their strong side in favor of the fentons right but but the district court certainly upheld the state law claims and now it's various motions correct right and that's what they are and that's what the next and and the and the judge said fine is no longer any federal jurisdiction go go pursue your state law claims with a point we get so i don't quite understand why you are happy to have this case turned over to a state court three days it's over the transaction course the fees  time the expense you would incur cross the street and i'm i'm i'm confused as to why you would not want this case over your honor defendants are satisfied the case being view advised the court that they were only pursuing state law claims or was it on that date there was also a position to the one of the defendant's motion for summary judgment in december twenty sixteen when plaintiffs can see that that there are no f l or say claims against one of the defendants and that would be true for  t letting some letting letting council know what's coming down the pike before you they're on their i use what i'm thinking about here is what i'm concerned about i'm about to dismiss this  case but i'll give you the courtesy of hearing you before you do it that's the way we work there on the i completely understand your point of view but as an attorney who supplies and provides the court with and clued in pretrial notice all the more reason that you should have asked what's going on here she had she had advance notice of a problem and if she had advance notice of the problem why didn't she do her job and asked already what's going on and what you intend to do your honor makes it worse in my opinion i believe that it would be a burden some for district judge to for us to expect from this to judge to double so the second guess every decision that attorney provides us it's your honor if i submit to the court that i do not proceed to claim why would courts second guess me i'm not second guessing i'm about to just i've done it before doing anything in response to that look i'm about to dismiss this case what do you what do you have to say what was the dismiss these state law that the new york they belong claims that are about to go to trial and give me some response within the next day within twenty four hours what was the was there an impediment well the other than scheduling constraints i don't believe so you know so she could have done that and so the question that this is a reasonable debate and it's well are you but the question is that why should at least in this case under these circumstances we manage to allow the other side to provide reasons understanding that with the benefit of those reasons that is chaldean as an intervening decision  district judge tried to balance a public interest in not only defending the rights of the defendants but also defending the rights of the plaintiffs in order to what's a basis in the record for that state the basis is that six months or seven months before the trial plaintiffs in equivocally it vies the court that there will be no federal claims that trite only has to some defendants you told me right but on july twenty first as to not as to everybody but on july twenty first the statement made by the plaintiff pretty much compost all the defendants all right that's ten days before ten nine thirty one you know twelve days before trial what why just well i won't even repeat what judge parker has been asking you and to some extent what judge moore has been up here why didn't you just call people and say what's going on because i don't believe district judge had any doubts of the intended by the plaintiffs well how do we figure out since she says suggests at least that it was done in bad faith my words not hers i think how do we and that seems to be the driver behind her decision how do we assess that in the context of looking at abuse of discretion let's say she's totally wrong in that assumption is that in the views of discretion i don't believe that was the only ground for the the question is let's assume that she is totally wrong in that assumption is that an abuse of this question that's the question those posed as honest with own beliefs on them so no abuse of discretion even th case the federal claims were substantially meritless and had no basis whatsoever the decision is very clear that there was never any basis for federal jurisdiction in the first place in this case there's should be no dispute that there was a basis with the benefit of your arguments because you asking for a notice is there any do you have any other argument well if we believe that the courts should we believe that the courts should have exercise supplemental jurist i know that but you have any other argument for why the court should have exercise this why the court didn't abuse her discretion or will not have abused her discretion once you have your opportunity to be heard we believe that dismissing this case six days before a trial after all the work that had been done as your honour's pointed out during  questioning i'm adversaries given the motions have already been decided in our favor and already are now law of the case we believe that sending this case to state court work take years to get a trial and the defendants may take their time may take that opportunity try to issues would be abuse of discretion with the exception of dismissing a case during trial it's hard to imagine a situation where it's more warranted this isn't a case where they're complex issues of law and us we've never said that the supreme court has never said that and it's a to the early stages of the litigation but there's never been the sort of rule that i think you are asking for here and rule that says that if you are very close to trial you can't exercise the district or can exercise its discretion to decline supplemental jurisdiction just because your honor we're not arguing that the district court never could if this is a straightforward case it took six months to get to trial and they're complex issues of law are distinct issues of the law that would be one thing these new york liberal claims that we're proceeding with on trial are dentical to the f o c claims that we may end up having to pursue a trial to minimum wage and overtime there are no complex issues substantial amount of resources  judicial economy and proceeding in and in exercising jurisdiction over these claims and letting us proceed to trial on them she just believes that recognize all the fact that i believe that you recognize that there were factors and i think she gave very short shrift to them and improperly made assumptions that were not warranted based on the record thank you very much will reserve deci