[00:00:01] Speaker 00: Our next case on calendar is ink Mongo versus name cheap. [00:00:05] Speaker 00: Twenty five dash three, three, five eight. [00:00:17] Speaker 00: Each side will have ten minutes in this case. [00:00:22] Speaker 04: Okay. [00:00:43] Speaker 05: Good morning. [00:00:43] Speaker 05: May it please the court. [00:00:44] Speaker 05: My name is Michael Marion. [00:00:46] Speaker 05: I am counsel for repellent ink mango. [00:00:48] Speaker 05: I would like to reserve two minutes of my time for rebuttal. [00:00:51] Speaker 05: The appeal here is a narrow issue. [00:00:53] Speaker 05: The lower court correctly remanded the case back to state court after finding a lack of federal question jurisdiction, but denied ink mango's fees under 28 USC 1447C on a rationale that is legally erroneous and untethered to the removal that was actually filed. [00:01:09] Speaker 05: Under Martin, which everyone agrees is the standard that applies here, [00:01:12] Speaker 05: The standard is whether or not the removal had an objectively reasonable basis. [00:01:17] Speaker 05: But then, you need to evaluate whether there are unusual circumstances exist, and the court must then assess in a way that is faithful to the statute's compensatory and deterrent purposes. [00:01:29] Speaker 05: So we contend the lower court made three errors that require reversal. [00:01:33] Speaker 05: First, the lower court improperly assessed a higher standard in evaluating whether removal was reasonable. [00:01:40] Speaker 05: requiring basically an objectively baseless standard instead of the objectively reasonable standard for Martin and creating new safe harbors that are unsupported by Martin. [00:01:49] Speaker 05: The second is the lower court improperly required a finding of bad faith rather than the broader category of just unusual circumstances that require deviation from the objectively reasonable standard. [00:02:01] Speaker 05: The third is the lower court made erroneous tax findings evaluating the bad faith, in particular the timing surrounding the removal from [00:02:10] Speaker 05: to get avoid the state court TRO. [00:02:13] Speaker 05: Taking these points one at a time, the first error, the lower court held the standard as baselessness, not reasonableness. [00:02:21] Speaker 05: The remand order, which is not subject to review, found two dispositive facts. [00:02:26] Speaker 00: To figure out if it's baseless or under whatever standard, whether there was enough of a idea of a federal question here, is that something we would review de novo? [00:02:38] Speaker 05: Yeah. [00:02:38] Speaker 05: So, because the standard review is whether the court abuses discretion, but an abuse of discretion is applying the wrong legal standard. [00:02:48] Speaker 05: So, this would be something you would review to know if this legal standard was wrong, because that is right. [00:02:53] Speaker 00: So, it seems like your claims [00:02:57] Speaker 00: did at least somewhat involve trademark issues and also issues of Indian trademark law and also issues maybe of how an Indian court works or something. [00:03:07] Speaker 00: Why aren't those federal questions? [00:03:09] Speaker 05: So I think the best place to start from is to see things that are are inside the federal question. [00:03:16] Speaker 05: And that's where you have to go to the test under Gunby Minton. [00:03:19] Speaker 05: Here, the lower court did not even attempt applying Gunby Minton to determine whether or not these things existed. [00:03:25] Speaker 05: So if there was a theoretical determination that such questions could be federal questions, but the lower court made no such determination. [00:03:33] Speaker 05: And so they just cut to the chase and said, well, there are federal questions that could be embedded. [00:03:38] Speaker 00: Well, OK. [00:03:38] Speaker 00: But we just talked a minute ago about how this is de novo. [00:03:41] Speaker 00: So just answer. [00:03:41] Speaker 05: So answer your question. [00:03:43] Speaker 05: Absolutely. [00:03:44] Speaker 05: So when applying Gunby-Menten, there's four requirements that's necessarily raised, actually disputed, substantial, and it respects the federal-state balance. [00:03:54] Speaker 05: When you apply all four of those tests, the answer is no here. [00:03:57] Speaker 05: And I think the best thing we have to show that there is a lack of basis is the Placer Dome case. [00:04:03] Speaker 05: Because in Placer Dome, you had a case where the plaintiff was a foreign government, in the case of the Philippines, asserting rights on behalf of their citizens of the Philippines, seeking redress for something that happened in the Philippines. [00:04:16] Speaker 05: And this court found that there was not pedal question jurisdiction in that case after removal. [00:04:21] Speaker 05: So here in a case where the state law claims, [00:04:23] Speaker 05: RC are a U.S. [00:04:25] Speaker 05: plaintiff seeking redress under U.S. [00:04:27] Speaker 05: law for something that happened inside the U.S. [00:04:30] Speaker 05: We are so far removed from Placer Dome that there isn't really a question about whether or not federal question jurisdiction exists. [00:04:38] Speaker 00: Did we have Placer Dome? [00:04:40] Speaker 00: I'm trying to remember if that was in our briefs. [00:04:41] Speaker 00: Is that a case that we should be familiar with? [00:04:44] Speaker 05: I believe I cited in the case. [00:04:47] Speaker 05: Placer Dome 582 F3rd, 1083. [00:04:51] Speaker 05: I know it was least in the briefing in the lower court. [00:04:56] Speaker 05: I can double-check. [00:04:58] Speaker 05: I'm pretty sure that was one of those cases we could rely on. [00:05:00] Speaker 03: If I read your friend on the other side's facial expression, my guess is you did not. [00:05:07] Speaker 05: I will double-check, but I know that was least cited for lower court. [00:05:12] Speaker 00: What was the reason in Placer Dome that there wasn't federal question jurisdiction? [00:05:16] Speaker 05: In Placer Dome, [00:05:19] Speaker 05: I'm not sure if that's the case [00:05:26] Speaker 05: I do not have that in front of me right now. [00:05:28] Speaker 05: And did we award attorney fees in that case? [00:05:31] Speaker 01: That was not a question of whether or not. [00:05:33] Speaker 01: That goes to the question of removal and I mean remand to the state court. [00:05:38] Speaker 01: Nobody's disputing the remand here. [00:05:39] Speaker 01: That's not contested and as far as we're concerned, that's a correct decision by the district court. [00:05:45] Speaker 01: The only question is sort of the degree of outrage in trying to remove in the first place. [00:05:52] Speaker 05: Yeah, I agree with you. [00:05:54] Speaker 05: So you go back and you go through the analysis. [00:05:56] Speaker 05: It's the well-pleaded complaint rule. [00:05:57] Speaker 05: That's what we started with. [00:05:59] Speaker 05: That has been federal law for almost, you know, the Supreme Court said it was established. [00:06:04] Speaker 01: We've got to separate the question as to whether your case has been properly remanded to state court. [00:06:10] Speaker 01: You win on that. [00:06:11] Speaker 01: The question is, was there any plausible argument here for removal? [00:06:20] Speaker 05: Well then, when we say plausible, then we're back to baselessness. [00:06:27] Speaker 05: That's where I think we go astray here. [00:06:29] Speaker 05: Because if you're saying that there's any reason to remove, any at all, the only thing lower than that has to be baselessness. [00:06:36] Speaker 05: So when you're saying that is there any reason at all why there's removal, you've taken it away from what is objectively reasonable. [00:06:43] Speaker 05: You're looking at the middle of the bell curve there, not the extreme ends. [00:06:48] Speaker 05: So if you're asking about that, we're already back to where the lower court erred in trying to find those baselessness in the removal. [00:06:58] Speaker 05: The second issue is that the lower court required the finding of bad faith to establish unusual circumstances as an exception to the general rule of Martin. [00:07:06] Speaker 05: Low court may be finding a fact. [00:07:09] Speaker 00: Again, if we're, some of these questions, it seems like they're de novo. [00:07:13] Speaker 00: So do you, it seems like, do you concede that bad faith could be a reason? [00:07:17] Speaker 00: And if so, I had thought it was an either or. [00:07:19] Speaker 00: It's like either there's plausibly a federal question or maybe there's some sort of bad faith. [00:07:23] Speaker 00: Either one could be. [00:07:26] Speaker 05: The way I read, the way I read Martin is you take the, so the quote from Martin is absent unusual circumstances. [00:07:33] Speaker 05: there should not be awarded if it's objectively, if there's an objective basis. [00:07:37] Speaker 05: So I read that as, you start with making an objective or reasonable assessment, one way or the other. [00:07:43] Speaker 05: Then you see, despite that, you make a determination that you should award fees despite the fact that it was objectively reasonable, or you should not award fees despite the fact that it was objectively unreasonable. [00:07:54] Speaker 05: I think one, [00:07:56] Speaker 05: preparing for this, one of the things I saw particularly is there were objectively unreasonable bases for removing cases, but those were done by pro se plaintiffs. [00:08:05] Speaker 05: And so there was a reason to deviate from that, not that it's unusual to have pro se plaintiffs, but the need for deterrence and the need for all that was less needed for pro se versus experienced litigator who could probably come up with any number of reasons why something could be removed or should be able to evaluate the law better. [00:08:22] Speaker 05: So bad faith would provide a basis, but that is not sufficient. [00:08:26] Speaker 05: That's not the only reason why it could be provided. [00:08:30] Speaker 05: So, you know, the question is whether or not... You think it's objectively unreasonable. [00:08:37] Speaker 05: The basis here was objectively unreasonable. [00:08:39] Speaker 03: To suggest that a case for rising out of legal proceedings in New Delhi, India, [00:08:48] Speaker 03: shouldn't be in Maricopa County Superior Court. [00:08:52] Speaker 05: The claims at issue here were not rising out of the Indian case. [00:08:57] Speaker 05: The Indian case provided the anticipated justification for the defendant's action. [00:09:02] Speaker 05: But we were in a situation, we were filing for a TRO and we needed to be clear with the court about why we were here and why they breached the contract. [00:09:10] Speaker 05: So all these are state law claims that brought forward [00:09:12] Speaker 05: And anticipated defenses are certainly something that we were going to need to address as part of the next party application. [00:09:17] Speaker 00: But the way you pled them, the complaint talks about, you know, breaching your obligations under the contract. [00:09:24] Speaker 00: I don't have the exact quote, but something like without without a legal basis, without illegal justification. [00:09:28] Speaker 00: And once once you're talking about or without a court reason, once you have that kind of without clause, why aren't you embedding the Indian court at that point by the way it's pled? [00:09:39] Speaker 05: So the question then is, so you're asking me, so then it's a question of the U.S. [00:09:44] Speaker 05: court evaluating the Indian action, not the Indian court enforcing its order in the U.S. [00:09:51] Speaker 05: So that's flipping in on its head. [00:09:53] Speaker 05: And then we're back to, again, place your dome again where, again, even where there's a felt in that situation, there's still probably wouldn't be federal question jurisdiction then. [00:10:02] Speaker 05: So we're still so based on the law that had been established at the time, we're still so far removed from jurisdiction that is objectively unreasonable. [00:10:09] Speaker 00: Here, I found it. [00:10:10] Speaker 00: Paragraph 80, unilaterally deactivated domains without lawful court orders. [00:10:17] Speaker 00: If you're going to say without lawful court orders on the face of your complaint as part of your allegation, why isn't that creating the hook for that to be part of the claim that now there's a federal question in your claim? [00:10:34] Speaker 00: Why is there plausibly? [00:10:35] Speaker 00: I mean, I understand you're not really, there isn't really, but why isn't it plausible? [00:10:40] Speaker 05: If it is something a hair above baselessness, then maybe we're having a discussion then. [00:10:46] Speaker 05: But then we're again, we're back removed from going back to where Martin says that you have a starting point of whether or not you afford award fees is that there is and it's a neutral statute that you come forward and that's what the analysis was. [00:10:59] Speaker 05: They looked at both [00:11:00] Speaker 05: You know, should there be a presumption of a warning fee? [00:11:02] Speaker 05: Should it be only in frivolous or what was the Solicitor General's position? [00:11:07] Speaker 05: It was frivolous, unreasonable, or without foundation. [00:11:11] Speaker 05: The Supreme Court rejected all those formulations and said, no, this is straight down the middle. [00:11:16] Speaker 05: So you need to look at something straight down the middle. [00:11:17] Speaker 05: And if you're at the, well, there is this iodo specter of something that could be a question, then we're outside a reasonable basis. [00:11:24] Speaker 05: You know, if I'm going to get my car washed today based upon the weather, is it a 10% chance, a 90% chance of rain? [00:11:30] Speaker 05: Those are things about, you're looking at probabilities, not a guarantee, whether or not. [00:11:35] Speaker 00: We have you over your time, so we'll still give you two minutes for rebuttal, but let's hear from the other side. [00:11:42] Speaker 02: Your honors, good morning, and may it please the court, my name is Eugene Rome, on behalf of defendant FLE Namecheap. [00:11:51] Speaker 02: At a particular structure, I was going to argue today, but in a lot of... I am so sorry. [00:11:55] Speaker 02: But in light of the questions they had posed, I want to hone in on those particular issues. [00:12:02] Speaker 02: You alluded to the fact that there was an allegation without lawful court order. [00:12:05] Speaker 02: And I think that's a significant one, because everything's predicated upon what had happened in New Delhi. [00:12:12] Speaker 02: But it goes substantially beyond that. [00:12:14] Speaker 02: And while we're not currently hassling with the ruling, [00:12:17] Speaker 02: remand of the federal court demanding the matter. [00:12:21] Speaker 02: There are certainly jurisdictional hooks that frankly could be and should have been viewed substantially differently. [00:12:27] Speaker 02: I'll be specific here. [00:12:29] Speaker 02: Fourth claim in the complaint is for breach of contract. [00:12:32] Speaker 02: The breach of contract states that the agreement, the DNRA, and that's the agreement buying between what plaintiff alleges ink, mango, and Namecheap has certain requirements. [00:12:44] Speaker 02: So what plaintiff says is that it's bound by DNRA. [00:12:46] Speaker 02: and it identifies the agreement. [00:12:49] Speaker 02: And at this is paragraph 25, the Notice of Removal, we quote certain passages of the DNRA and we state that, defendant Namecheap may terminate or suspend services at any time for cause, which without limitation includes registration of prohibited domain names, abusive services, payment irregularities, or [00:13:10] Speaker 02: material allegations of illegal conduct, which is obviously trademark infringement. [00:13:13] Speaker 02: Subsequently, paragraph 26 of the notice of removal, we allude to the fact that the DNRA prohibits plaintiff from using nameship services in a manner that infringes upon trademark rights of a third party. [00:13:28] Speaker 02: So that's squarely this issue. [00:13:31] Speaker 02: The reason I bring that up is the... [00:13:34] Speaker 00: Typically, defenses can't be the basis for federal jurisdiction, right? [00:13:38] Speaker 00: So this is, I think they have a pretty good argument that this was a contract claim. [00:13:43] Speaker 00: They're basically just saying, you promised to give us this domain and now you're not. [00:13:47] Speaker 00: And they've had various state law versions of that. [00:13:53] Speaker 00: You're trying to say, well, we have this Indian action, or maybe you were violating trademark, but those are defenses. [00:13:59] Speaker 00: And as I understand it, you wouldn't only need to show that somehow they're embedded to get over this problem that they're defense, but also that they're substantial. [00:14:09] Speaker 00: Then federal courts would really care a lot about them. [00:14:12] Speaker 00: I do think they have a pretty good argument that you can't come close to that. [00:14:16] Speaker 00: So can you make their best argument for what the question is that's not just a defense and how it's important to the federal courts? [00:14:23] Speaker 02: Your honor, we would argue that we are actually in compliance with the agreement. [00:14:27] Speaker 02: In other words, to construct whether or not we're in breach, we have to have breached a particular portion of the contract. [00:14:35] Speaker 02: If we are removing the domain based on the very requirement of the agreement, if we are preventing access, [00:14:41] Speaker 02: that says you're not infringing. [00:14:42] Speaker 02: That's not a defense. [00:14:44] Speaker 02: That's part of a prima facie case. [00:14:45] Speaker 02: What we're saying is that this is our right. [00:14:48] Speaker 02: There's no breach. [00:14:49] Speaker 02: It's not an affirmative defense in a sense of perhaps a statute of limitations or some other affirmative defense that would validate our conduct. [00:14:58] Speaker 02: There's simply not an instance of breach by Namecheap when it undertakes that action. [00:15:05] Speaker 00: So an element of one of the claims in the complaint as you see it is we are not violating trademark and we're not violating a foreign court order. [00:15:13] Speaker 00: That's like part of the elements of their burden of their claim. [00:15:18] Speaker 02: I believe so. [00:15:18] Speaker 02: It's contract construction. [00:15:21] Speaker 02: What I'm saying is that they're saying you [00:15:24] Speaker 02: transfer the domain out. [00:15:26] Speaker 02: Well, in derogation of your contractual obligations to us. [00:15:31] Speaker 02: So we have to look at what the contract says. [00:15:33] Speaker 02: If the contract says, here are the circumstances upon which we can prevent you from having access to the domain. [00:15:39] Speaker 02: And one of those is when it is infringing a third party right, which obviously brings up both the New Delhi litigation issue and just federal question issues. [00:15:50] Speaker 02: Then there's no breach. [00:15:52] Speaker 02: If the contract says just in a different situation, [00:15:55] Speaker 02: On a particular date, you can undertake this action and the defendant undertakes that action on that day. [00:16:01] Speaker 02: It's not an affirmative defense to say that it did so. [00:16:04] Speaker 02: It's merely a factor of contract construction. [00:16:08] Speaker 02: From our point of view, it's a prima facie issue as opposed to an affirmative defense truly to the conduct. [00:16:15] Speaker 00: So even if that's true, in Gunn there was a patent question that was part of the claim, but it wasn't substantial. [00:16:22] Speaker 00: What would make this embedded question about whether there's trademark infringement or some problem with the Indian court? [00:16:31] Speaker 00: a substantial federal question. [00:16:33] Speaker 02: Your honor, it's the largest question permeating this entire litigation. [00:16:37] Speaker 00: No, but substantial means that it matters to the courts and our, I mean, it's not substantial in the, it's substantial in the sense that it needs to be in federal court instead of needing to be in state court. [00:16:50] Speaker 02: I think the strongest point is that it requires construction of trademark rights. [00:16:55] Speaker 00: But that was true in Gunn about the patent. [00:16:58] Speaker 02: Here, I don't think we can navigate that issue without considering trademark rights, because it's a question of territoriality. [00:17:03] Speaker 02: There are all kinds of federal issues arising out of the trademark rights that have to be navigated for any of these claims, and most specifically, the contract claim to have been properly adjudicated. [00:17:19] Speaker 02: And it's not an affirmative defense. [00:17:22] Speaker 02: Everything stems, all the allegations stem from [00:17:27] Speaker 02: the plaintiff and appellants claimed rights to the mark underlying the domain. [00:17:33] Speaker 02: And that affects every cause of action stated in the complaint and their adjudication. [00:17:38] Speaker 02: It's not merely a question of an affirmative defense, rather whether or not trademark rights both are properly utilized domestically, but also whether or not the domestic trademark rights impact the Indian right holders [00:17:56] Speaker 02: and the rulings of the New Delhi Court, they permeate every facet of every claim in this complaint. [00:18:07] Speaker 02: More so, this is not my argument. [00:18:10] Speaker 02: This is a direct allegation that has been stated by the plaintiff in the matter. [00:18:17] Speaker 02: They reference the New Delhi litigation. [00:18:19] Speaker 02: They construct the ruling of the New Delhi litigation [00:18:23] Speaker 02: they set out the bounds of what the New Delhi Court has said can be done. [00:18:28] Speaker 02: And what can be done more importantly, they address the territory. [00:18:34] Speaker 00: Some of this seems to be about abusive discretion. [00:18:36] Speaker 00: And one thing that puzzled me about the district court is it seems to have remanded very quickly. [00:18:44] Speaker 00: Like you removed and it remanded the same day or the next day without even getting further briefing on the issue. [00:18:50] Speaker 00: If it did that, [00:18:51] Speaker 00: Doesn't that make it seem like it was very obvious? [00:18:54] Speaker 00: I mean, it said it seems to have acted as if this was a very obvious issue, but then on the attorney's fees issue, you thought it acted like it wasn't a very obvious issue. [00:19:05] Speaker 02: act prudently, and I think there is an effort to recast something that's innocuous as nefarious, the fact that we sent an email to the state court advising of the intention to remove. [00:19:17] Speaker 02: That was done as a point of courtesy. [00:19:19] Speaker 02: We didn't know how quickly the state court was going to rule on the submitted papers. [00:19:23] Speaker 00: That's not what I'm asking. [00:19:24] Speaker 00: I'm asking about the federal court. [00:19:25] Speaker 00: So as I understand it, you removed to federal court and the federal court immediately remanded back to state court within 24 hours or something without even getting [00:19:35] Speaker 00: a full set of briefing on whether it should remand. [00:19:39] Speaker 02: Your Honor, I don't have direct insight into the judge's workload or their inclinations for fast action. [00:19:45] Speaker 02: I really can't speak to that. [00:19:47] Speaker 02: But I would like to address an argument on bad faith that I think was not an accurate submission of the issue. [00:19:54] Speaker 02: I'm looking at the court order on the attorney's fee issue. [00:20:00] Speaker 02: And I'm quoting here, defense arguments ultimately lack merit under the well-plated complaint rule. [00:20:04] Speaker 02: But that does not entail they were patently objectively unreasonable. [00:20:07] Speaker 02: And the previous sentence states that the defendant, well, that the plaintiff argues that the removal was brought in bad faith. [00:20:15] Speaker 02: In other words, it's not that the court is setting a higher threshold. [00:20:19] Speaker 02: Rather, what the court is doing is referencing the plaintiff's argument that this was done in bad faith. [00:20:24] Speaker 02: The federal court applied that. [00:20:26] Speaker 02: appropriate standard and stated that the removal was not objectively unreasonable. [00:20:32] Speaker 02: And that's what's required. [00:20:34] Speaker 02: And under what's it called under Martin, again, this is a quote, we haven't a good authority that a motion to a court discretion is a motion not to its inclination, but to its judgment. [00:20:46] Speaker 02: And the judgment is to be guided by sound legal principles. [00:20:49] Speaker 02: We have that the court, the federal court enrolling in a motion for attorney's fees, [00:20:55] Speaker 02: accurately stated the standard, accurately cited the cases. [00:20:58] Speaker 02: There's no legal error. [00:21:01] Speaker 02: And it evaluated every single argument submitted by the plaintiff. [00:21:07] Speaker 02: And so there's no abuse of discretion. [00:21:09] Speaker 02: And that's a standard to which it should be held on a review of the denial of a motion for attorney's fees. [00:21:18] Speaker 03: We don't have to decide whether your claim should have stayed in federal court, correct? [00:21:23] Speaker 02: You do not. [00:21:27] Speaker 02: nothing for it. [00:21:30] Speaker 00: Let's put 2 minutes on the clock, please. [00:21:37] Speaker 05: Just a few things, Your Honor. [00:21:39] Speaker 05: First, Placer Dome was cited on page 4 of our reply brief, so I didn't screw that one up. [00:21:47] Speaker 05: The question about, I mean, [00:21:53] Speaker 05: The elements of a contract claim are, there's a binding contract that's breached and damages. [00:21:57] Speaker 05: None of those require, imply, or anything involved with foreign law. [00:22:03] Speaker 05: And to the extent that they come up, again, these are anticipated defenses. [00:22:06] Speaker 05: We've covered this. [00:22:08] Speaker 05: I think to clarify the kind of the timing of this in terms of the unusual circumstances, we had a hearing on the Tierra in the state court. [00:22:19] Speaker 05: And before we could try to, before we thought we had the order entered in state court, they removed it. [00:22:25] Speaker 05: So they got a free shot at hearing the TRO arguments. [00:22:29] Speaker 05: And I assume if they lost, if they won the arguments, the TRO and the TRO is denied, we would still probably be in state court. [00:22:36] Speaker 05: And this wouldn't be an issue, but they try to circumvent it and try to get around it. [00:22:39] Speaker 05: And but for the quick work of the state court, our client would have been dead in the water over the weekend. [00:22:45] Speaker 05: This was a Friday afternoon. [00:22:46] Speaker 05: It was over a three day weekend. [00:22:49] Speaker 05: I can't imagine that we've gotten any relief from the federal court any faster to get the lights back on the case. [00:22:55] Speaker 05: There's already a finding by the state court of irreparable harm. [00:22:58] Speaker 05: So these are unusual circumstances of already trying to get around what was lawfully issued Tierra order. [00:23:05] Speaker 03: Let me ask a question that may come a little bit out of left field. [00:23:09] Speaker 03: Would you seek to recover the fees expended in the federal proceeding once you successfully conclude the contract claim in state court? [00:23:24] Speaker 04: Under, I guess under what? [00:23:25] Speaker 03: We have very liberal rules in Arizona. [00:23:28] Speaker 03: I practiced for 30 years there about actions under contract. [00:23:35] Speaker 03: And the impulse of state courts, at least when I practice, was that if you prevailed on a contract, you recovered all your fees. [00:23:45] Speaker 05: There certainly is a question about the intersection of if there's a statute that provides it and denied it versus there's to be conflicting statutes between state and federal court about that. [00:23:54] Speaker 05: That is still a long way removed and we have a statute here that provides for it. [00:23:59] Speaker 05: I think there's a question, again, back to the fundamental need of [00:24:02] Speaker 05: that we can't be in a situation where plaintiffs, where we need quick relief, are damned if you do and damned if you don't. [00:24:11] Speaker 05: If we had filed the federal court, I'm sure the question would have been, or we should have been in the first place. [00:24:15] Speaker 03: I'm not questioning the timing at all. [00:24:18] Speaker 03: I'm just, have you considered whether it be successful from your point of view? [00:24:24] Speaker 03: conclusion of the state court proceedings, whether you could file a request for attorney's fees for everything your client had to expend, including the efforts in federal court. [00:24:38] Speaker 05: So that would, so no, I have not considered that is still so far removed in our proceedings in the state court action. [00:24:46] Speaker 05: The second is it does require success in the state court action. [00:24:50] Speaker 05: So there certainly is an outcome where [00:24:52] Speaker 05: We are not successful or there is a discretion where those fees are not awarded in the state court. [00:24:58] Speaker 05: I think there's a question of choice of law still about whether or not Arizona fees would apply or not. [00:25:03] Speaker 05: So there's a whole bunch of other questions there. [00:25:05] Speaker 05: So it's not even to guarantee that there may be a backstop, but the law does not necessarily require that kind of backstop to get to where we are today. [00:25:12] Speaker 05: I understand your response. [00:25:13] Speaker 05: Thank you. [00:25:14] Speaker 00: I found Placer Dome now that you pointed to where it was. [00:25:17] Speaker 00: And really the reasoning there is all about how the claims did not embed this federal question, that it was, there were things in the complaint about international action, but none of them were part of the claim. [00:25:28] Speaker 00: So I'm not sure it helps us, it gets us back to the same problem about whether your claims actually did embed some sort of notion of lack of court order or lack of reason that they broke this contract. [00:25:40] Speaker 05: Again, I think you're back to, you know, Placer Dome was decided foregone. [00:25:43] Speaker 05: So gun is the standard that controls the federal question and when you apply it. [00:25:47] Speaker 05: You know I I do I feel all I would love to have I P contract cases and fell court, but they don't meet the standard under gun. [00:25:55] Speaker 05: So I think as your honor was picking up that even a situation that specifically addresses federal rights. [00:26:04] Speaker 05: That does not necessarily really invoke federal question jurisdiction. [00:26:08] Speaker 05: So we're still a step away from something that is already decided as not invoking federal question jurisdiction. [00:26:16] Speaker 00: Thank you both sides for the helpful arguments. [00:26:17] Speaker 00: This case is submitted and we are adjourned.