because neither oh mr hubbard let me just tell you what i think the strongest argument against your position is and you can comment the the croat claim the federal claim here in my view ma opinion and just say well if if it's if the if the claim that you want to arbitrate arises the same nucleus of operative facts then you waived it because you waived it as to the state law claim as well plaintiff there who brought the brought the new claim later after the parties have fully litigated summary judgment waived its right to arbitrate because both claims involve the same factual issues both claims involve so the idea of waiver here as i understand it is we don't want to let a plaintiff sort of take a practice run an issue in federal district court and then say well i had nd thoughts let me go arbitrate that right i mean would you agree that you court's cooper decision felt there was no waiver because the defendant didn't seek to obtain judicial relief on the same claim it sought to arbitrate it's then you apply so it's just i'll start back over is your argument did you know judge duncan asked about the facts are they the same nucleus is it your position the facts don't matter that as long as it is a different cause of action  under state federal law you know with a different label that that alone means you did not invoke the judicial process is a general matter your honor yes absolutely you know but let me ask you a question and so what so you win and we say that this new federal claim has to go to arbitration but that you acknowledge now that the state claim would continue in federal court and that was correct is what's going to be the preclusion of effect of whoever rules st if they if there are some a credit repair organization under the federal act has no bearing and if the arbitration or the district rules st on the issue which i still you know at least the core issue in the earlier complaint which is whether there's misrepresentations about you know about what these fees are going to monthly were st rate in one day has done nothing to invoke the judicial process as to those claims but it simply doesn't matter they want to invoke the judicial process three years earlier by moving to dismiss the original complaint because it is th that's a rule i'm not sure we've adopted in our circuit about adding something it's not a claim but doing something in a mini complaint that unexpectedly changes it is that all rule that's i mean i guess how have we should afternoon counsel everyone has my apologies once again up try to start fresh my name is dave nelson i represent the plaintiffs miss for me the apple we of course thanks to this panel by the way for allowing me own this argument so that i can recover from surgery i'm also thankful to counsel particularly mister very great who is so mr nelson i'll start out with you and i'll tell you what i asked the other side at the beginning i said look the strongest argument i thought against their position is crow and it st same nucleus of operative facts you know what what why not say there if there was a waiver of arbitration as to why not a waiver is to crow and so on the flip side of that same strongest argument against your position is our circuit has talked about claim by claim waiver of arbitration specific claims crow is a different claim it's a federal claim different elements sort of i think is the important distinction of course that leads me to suggest this is a case of st impression for this court at least mostly and i'm going to ask this court to to adopt a new test and humbling ask humbly asking you to consider it might be a better test in the tests that have been articulated elsewhere in the other circuits and below in some states so what is that what test do you think we should adopt a judge i believe the test ought to be whether or not the amended complaint unexpectedly and in other words does your example mean anything at all i was struggling with this idea it's common nucleus of operative fact one rarely has a law suit in which there are two nucle of you know she that really doesn't have much to do with the breach of fiduciary duty plain that was brought up only along with theft claim i believe your honor that the things you're going to notice as you read these  articulations or permutations on the test they kind of have four elements and i'm going to descend to grammar from brief let me give you an example of some at the the court below  that this can be made more concrete for future lead against for the court to apply and so forth you've got an adverb like materially and unexpectedly you've got a verb like change i don't know if it's in an indirect object or whatever but you know let me in let me interrupt your grammar lesson for a nd to think before you can get to what this test should be aren't the other circuits test you're talking about like the  are those talking about a situation where an amended complaint so changes the theory of the case or whatever you want to label it that that allows the defendant to get revive the entire arbitration right and bring everything into arbitration even though they burly or waive that isn't that different than what they're trying to do now which is just get this one new claimant of arbitration and and shouldn't that smaller relief they're seeking have a less demanding tes know but i think i think it calls for something more clear i really like the choice used by counsel in their brief which was retained to retain their right is their claim and i like that word it fits just you're making that distinction it fits here for sure should it should the test be different i don't think so your honor i would i would say no to that question you know we could we could talk about the particular facts of that case call it sun trust apprise you know that was the case the sun trust is really surprised on account of the fact that the size of the class proposed went it a note to tell you your honor that there is a rd amended complaint on file and that the which gets rid of the class allegations at the on order of the district  correct and particularly i think it's paragraph forty five dollars to disappear so there is no class allegation in the complaint that lawyers d call the operative complaint there is an explanation for there's a delay in getting us here and the district court reconsidered and that's how we end up in the state of  affairs when you talk about unexpectedly changes the scope i think about prejudice there so is the does the unexpected part of your proposed test really go to the prejudice part and not to the invoke the judicial process because there's two parts to a waiver right but you know like the prize in the form of an you know it an amended complaint so it's preventing surprise is protected fair i mean does it make sense in terms of arbitration ossie other side this too for some for a defendant to say well you sued me on the state law claim i've looked at it i'm going to elect to go ahead in in the in the federal court on this one but then we get to the federal claim and for whatever reason they say no  we want to go to arbitration does that make any sense in terms of the dynamics of arbitration or not or your answer is well that i want a lawyer answer here it depends  overlapping in some sense of the better ok i think that's more accurate so given that they're not the same claim that they're overlapping that there are some elements in common but there are other elements that are not why should we just say well there's a strong presumption against waiver and so we should apply that here by finding no way for as to the croat i'm going to treat that ear well and i have them prepared to talk to you about mapping the role of planes back on the it's a claims sort of one for one is that i sincerely believe they match up and i was so how come you didn't join go are you planning to appeal the dismissal of the class allegations i guess because the father was used it's strange to me that this case may be everyone who knew and gusto much more than the value of this claim and i can see it's still a big deal if if you're planning it that would be for the arbitrator to decide if there's no way but it would go to the arbitrator to decide if they are  application of that path which really does follow the law as i said that you've already been reading and it because i think that the i think i can persuade you that the this proof is going to map on to the violated by company and i would ask the court to consider comparing the bullet or points there d with the bullet points in paragraph sixty nine they're the  same got it right here in front of me but before that there's a bunch of other paragraphs under croagh that are different right right but i'd be let's go to the want to meet leap four and that you know fifty five and sixty eight those are literally so my proof my direct examination i want to get to for others i'm going to ask her and i think i'm going to knock out the elements one after another with a single question for which that's the spirit anyway  ma'am gentlemen that's what i want to talk to you about today happy to answer any questions and of course i also want to thank you for your time and if if you  have otherwise i'll sit down thank you very much