[00:00:00] Speaker 00: Good morning. [00:00:01] Speaker 00: Aspirationally, if I could reserve four minutes for rebuttal, please. [00:00:05] Speaker 03: All right. [00:00:05] Speaker 03: Aspirationally, it's been going fairly well today. [00:00:08] Speaker 03: So good luck. [00:00:11] Speaker 00: Good morning, Your Honors. [00:00:12] Speaker 00: May it please the Court. [00:00:14] Speaker 00: John Berg on behalf of amazon.com services LLC. [00:00:20] Speaker 00: Your honor, I first want to thank you for hearing this appeal on an expedited basis. [00:00:25] Speaker 00: Whether you knew that happened or not, there was a motion filed. [00:00:28] Speaker 00: We've squeezed onto your docket. [00:00:30] Speaker 00: There is actually a trial date set, in this case, 20 days from today. [00:00:35] Speaker 00: So we appreciate the court's willingness to hear this on an expedited basis. [00:00:39] Speaker 00: The state court would not stay it, and they set a short trial date. [00:00:45] Speaker 00: So that's the situation we're in. [00:00:48] Speaker 00: I think this case, this appeal, presents to you an issue that is well settled under this court's own precedent. [00:00:58] Speaker 00: Under Ninth Circuit law, a district court may not remand a case on the basis of a procedural defect unless that defect is first raised within 30 days of removal. [00:01:13] Speaker 00: And it goes to the court's authority. [00:01:16] Speaker 00: It goes to the court's discretion. [00:01:20] Speaker 00: And there is none, so says Congress. [00:01:23] Speaker 03: So that seems to be your principal argument that the 30-day deadline under 28 U.S.C. [00:01:28] Speaker 03: Section 1447C is not waivable even if you failed to timely raise the statutory deadline issue when you contested Appellee's remand motion. [00:01:42] Speaker 03: Do you have any case law to support your proposition? [00:01:46] Speaker 00: There is no case law about waiver of the waiver. [00:01:49] Speaker 00: I think it's essentially a congressional deadline that provides and limits the authority of the district court. [00:01:57] Speaker 00: So it is our submission that whatever we do, we cannot grant authority to this district court to remand inconsistent with a congressional mandate. [00:02:12] Speaker 00: and 1447C. [00:02:15] Speaker 02: So as I understand, well, I think let's just start with whether they actually made the argument in time. [00:02:23] Speaker 02: It seems that this is a judge-made rule, this voluntary-involuntary doctrine. [00:02:29] Speaker 02: So it's not really like a statute where there's a specific name for, you know, if it's a statute you can say 1292 or whatever the statute is and you can say you have to mention that name. [00:02:39] Speaker 02: But what is the name of the voluntary-involuntary doctrine that someone has to say? [00:02:44] Speaker 00: I don't think there are magic words. [00:02:46] Speaker 00: I agree with Appoli in that regard. [00:02:48] Speaker 00: You don't need to use magic words. [00:02:51] Speaker 00: You don't have to say a certain thing. [00:02:52] Speaker 00: And I don't think you need to have a certain citation. [00:02:56] Speaker 00: But at the very least, you've got to make that argument. [00:03:00] Speaker 00: And that is not what Appoli did in this case. [00:03:03] Speaker 02: So when I read their brief, though, they're definitely saying, [00:03:09] Speaker 02: We didn't think this should happen. [00:03:11] Speaker 02: The court made a mistake. [00:03:12] Speaker 02: We didn't want this defendant to be dismissed. [00:03:15] Speaker 02: It seems like they're making an argument that this wasn't our voluntary choice. [00:03:20] Speaker 02: And when I look at your opposition, it had arguments about why it was a voluntary choice. [00:03:26] Speaker 02: So it seems like you understood them to be making an argument about whether it was voluntary. [00:03:30] Speaker 02: And given all that, I don't understand why we should accept your argument that no one was talking about voluntariness. [00:03:39] Speaker 00: My response was based on my knowledge of the law, not what was, not the motion. [00:03:46] Speaker 00: The content of the motion did not invoke that doctrine, did not make that argument based on the state of the mind of Mr. Schroeder the appellee. [00:03:58] Speaker 00: And so that is why I've responded the way I've responded. [00:04:03] Speaker 00: They have three arguments in their motion for remand. [00:04:07] Speaker 00: and they all relate to the non-existence of diversity. [00:04:13] Speaker 00: The voluntary and involuntary rule exists when there is diversity. [00:04:20] Speaker 00: There actually is diversity, which is not what they argued, but there's not removability for policy reasons because plaintiffs should be given the opportunity to control the venue [00:04:34] Speaker 00: it by their voluntary actions. [00:04:38] Speaker 02: I guess my point though is when you read their brief, it's very clear that they, if they're allowed to control their case, that they didn't want this to happen to their case. [00:04:49] Speaker 02: So why haven't they conveyed the point with that brief that this was not voluntary, even if they don't use that word? [00:04:56] Speaker 00: What they're doing is providing factual predicate for other arguments. [00:05:03] Speaker 00: Factual predicate. [00:05:04] Speaker 00: They don't take that next step and make the lawful legal analysis or argument that this is a, this is diversity that came about through an involuntary act. [00:05:18] Speaker 00: Like they don't speak to this. [00:05:19] Speaker 03: They didn't want, they don't want to be in federal court. [00:05:22] Speaker 03: You want to be in federal court. [00:05:23] Speaker 03: I think that that's pretty clear from everything. [00:05:26] Speaker 03: And then when the district court dismissed [00:05:31] Speaker 03: It's a long name that I'm not, the D name, I guess. [00:05:36] Speaker 03: Say it. [00:05:37] Speaker 03: Dom Condecar. [00:05:38] Speaker 03: Dom Condecar. [00:05:40] Speaker 00: Dom Condecar. [00:05:41] Speaker 03: Okay. [00:05:42] Speaker 03: When the district court dismissed, then the district court fairly immediately put that individual back in within a day, right? [00:05:55] Speaker 03: So, it certainly doesn't seem like, [00:06:01] Speaker 03: They didn't want it to happen and the only way this can be in federal court is it has to be, it's a diversity case, right? [00:06:09] Speaker 03: That's the only way. [00:06:12] Speaker 03: So I just don't see how they can be faulted in that situation. [00:06:16] Speaker 03: They get it immediately reinstated and then, you know, I guess you look to on all of this, who's got sharp elbows here? [00:06:26] Speaker 03: Is it them or is it you? [00:06:27] Speaker 00: Well, I will tell you this much. [00:06:31] Speaker 00: In state court, the efforts to actually not prosecute the default judgment against Dom Kondakar stood out. [00:06:43] Speaker 00: There were intentional, deliberate choices made by plaintiffs' counsel to not actually prosecute. [00:06:50] Speaker 02: So why did the court put back that defendant then? [00:06:53] Speaker 00: The state court was told in an ex parte proceeding that they had extended a deadline [00:07:01] Speaker 00: that actually they had not according to the transcript. [00:07:05] Speaker 00: And that's actually the district court's opinion end of day is that this litigant was told to file a motion and then chose not to file that motion. [00:07:18] Speaker 02: But the state court, I mean, for whatever reason, the state court thinks you're wrong about that. [00:07:24] Speaker 02: the state court, which is the one that had the deadline and the one that had the defendant and had to decide whether to dismiss it, dismissed it for a moment and then thought, oh, I've made a mistake and put it back. [00:07:33] Speaker 02: So if we take that, I mean, certainly for our purposes anyway, it shows that the plaintiff was trying to keep the defendant in because they went to the state court and said, bring him back, right? [00:07:45] Speaker 00: Well, factually, I lived it and it didn't appear that way until [00:07:51] Speaker 00: there was a realization about the control of the venue and the possibility of removal based on diversity. [00:07:58] Speaker 00: But Your Honors, the merits of the voluntary and involuntary rule here today, I don't believe isn't before the court. [00:08:07] Speaker 00: The question, your jurisdiction, depends on whether or not the district court exceeded its authority and under binding precedent. [00:08:15] Speaker 02: But the district court gave two reasons. [00:08:17] Speaker 02: The district court said, [00:08:18] Speaker 02: I think that the brief actually did make the voluntary argument well enough. [00:08:23] Speaker 02: And then the second one was, and you waived the waiver. [00:08:26] Speaker 02: So if the first one is right, I mean, we kind of do have to figure out whether the brief made this argument well enough to evaluate whether the first argument was right and therefore whether the district court authority, right? [00:08:37] Speaker 00: You have jurisdiction to decide your jurisdiction. [00:08:40] Speaker 00: I believe you do need to look at the brief de novo and ask yourself, is that argument made? [00:08:47] Speaker 00: And ask yourself, [00:08:48] Speaker 00: What is the standard in this context? [00:08:51] Speaker 00: Can we make arguments implicitly? [00:08:55] Speaker 00: Can we just offer factual predicate and draw assumptions from that? [00:08:59] Speaker 00: Apparent reliance, for example, is what the district court said. [00:09:05] Speaker 00: I would submit that is an incredibly practically unworkable standard in this context. [00:09:13] Speaker 00: And the cases that I have seen, they don't read between the lines. [00:09:18] Speaker 00: look to if there's common facts between this argument and that argument to decide whether or not it's actually been made in the context of the motion for remand. [00:09:29] Speaker 00: They talk in terms of it being explicitly included. [00:09:33] Speaker 02: Were any of those ones where there are no magic words, though? [00:09:36] Speaker 02: I mean, you started out by admitting there are no magic words for this doctrine. [00:09:39] Speaker 02: So can you point to any case where it's so amorphous what it means to raise this argument? [00:09:46] Speaker 00: Well, so when I say there's not a need for magic words, there is a name for this doctrine. [00:09:52] Speaker 00: It's the voluntary involuntary rule or doctrine. [00:09:56] Speaker 00: And that's how I understood it walking into, again, my response to the motion for remand. [00:10:02] Speaker 00: I didn't believe they had made the argument. [00:10:04] Speaker 03: But if I allege you didn't have a right to arrest me, you need probable cause. [00:10:09] Speaker 03: Do I have to say that's a Fourth Amendment violation? [00:10:13] Speaker 00: As I said, I don't believe you need to use magic words, but you certainly have to make the argument. [00:10:20] Speaker 00: Here they've made a different argument, three different arguments. [00:10:23] Speaker 00: The first one was that diversity didn't arise because it was an erroneous dismissal and therefore there never was diversity and it shouldn't have been removed on that grounds. [00:10:36] Speaker 00: The second argument they made in the motion for remand is that [00:10:40] Speaker 00: it was corrected so quickly before Amazon could remove the case and therefore there was no diversity at the time of the removal. [00:10:49] Speaker 00: And the third is Amazon acted in bad faith and we know from the briefing and from the court's rulings that there was no bad faith but that aside it was based on this idea that we knew that the [00:11:01] Speaker 00: the dismissal was ineffective because it was a court error. [00:11:07] Speaker 00: I can test that factually, but that said, every one of the arguments is about the alleged non-existence of diversity at the time of removal, whereas the voluntary, involuntary rule actually has diversity. [00:11:24] Speaker 00: Removal, jurisdictionally, subject matter-wise, is proper, but for policy reasons, [00:11:31] Speaker 00: it can be remanded on that basis. [00:11:34] Speaker 00: So they're making a different argument. [00:11:37] Speaker 00: I think an objective review of the motion for remand speaks for itself in that respect. [00:11:45] Speaker 03: That's actually with the... Do you want to save any time? [00:11:49] Speaker 00: Yes. [00:11:50] Speaker 00: Thank you. [00:11:50] Speaker 00: I will do that. [00:11:51] Speaker 00: All right. [00:11:52] Speaker 00: Thank you. [00:11:55] Speaker 03: All right. [00:11:55] Speaker 03: We'll go to the appellee at this point. [00:11:59] Speaker 01: Good morning and may it please the court, Lindsay Burroughs for plaintiff Timothy Schroeder. [00:12:03] Speaker 01: I plan to address two issues this morning. [00:12:06] Speaker 01: First, the district court had discretion to refuse to consider Amazon's untimely waiver argument. [00:12:12] Speaker 01: And second, Mr. Schroeder sufficiently raised his voluntary and voluntary rule argument in his timely motion for remand. [00:12:19] Speaker 01: If this court agrees with either of those arguments, it should affirm the district court's order remand in the case to state court. [00:12:26] Speaker 01: First, Amazon forfeited or waived its argument as to the timing of the objection to removal by failing to raise that argument until after the magistrate's findings or recommendations. [00:12:36] Speaker 03: And for Amazon... Well, it was 59 days, right, as opposed to prior to the 30 days, right? [00:12:43] Speaker 01: The motion was made within the 30 days. [00:12:46] Speaker 01: So the question, I think, you know, there are multiple questions. [00:12:50] Speaker 01: The first question, though, [00:12:51] Speaker 01: is whether the district court could say, Amazon, you failed to raise the timeliness of the waiver issue. [00:13:00] Speaker 01: That's a basis itself for refusing to consider the argument. [00:13:07] Speaker 01: Really, for Amazon to prevail on that first issue, the court would need to treat the 30-day limit for objections to removal as jurisdictional. [00:13:15] Speaker 01: and conclude that an argument invoking the 30-day rule can be raised at any time. [00:13:19] Speaker 01: That is essentially Amazon's argument. [00:13:22] Speaker 01: But that argument fails because, as this court has made clear and as Amazon acknowledges, objections to jurisdiction under 1447C are procedural, not jurisdictional. [00:13:32] Speaker 01: And that, for example, is in Smith v. Milon. [00:13:35] Speaker 01: It's in the Lively v. Wildoats case. [00:13:38] Speaker 01: In fact, it's the removing party's burden to establish jurisdiction. [00:13:42] Speaker 01: And because the 30 day rule is procedural and not jurisdictional, a removing party can forfeit or waive an argument about the timeliness of the objection. [00:13:51] Speaker 01: This is not an argument ultimately like lack of jurisdiction that can be raised at any time. [00:13:57] Speaker 01: That is, you know, Mr. Schroeder's fundamental point as to the first question. [00:14:02] Speaker 01: And to be clear, plaintiff's position is not that the district court had discretion to extend the 30 days. [00:14:10] Speaker 01: Plaintiff's position is that the district court had discretion to refuse to consider a procedural non-jurisdictional argument raised for the first time in an objection to the magistrate's findings and recommendations. [00:14:24] Speaker 02: Some of the cases sound like it really is a question of authority for the district court, though, and that this 30-day deadline is very [00:14:32] Speaker 02: Rigid so you're just arguing that it's not [00:14:36] Speaker 01: No, Your Honor, and forgive me if I haven't been clear on this point. [00:14:41] Speaker 01: Our argument isn't that the 30, we're not disputing that the 30 day argument is rigid. [00:14:47] Speaker 01: Our argument is that a district court has discretion to refuse to consider an argument invoking the 30 day rule if that argument is untimely. [00:14:59] Speaker 02: I guess the problem is though, does the district court need to assess for itself whether the 30 day rule is satisfied? [00:15:05] Speaker 02: because it seems like not considering their argument that it was violated puts aside maybe their argument, but if the district court needs to assess it on its own, it seems like arguably you didn't satisfy that rule unless we get to the other point, which is that maybe you did satisfy that rule by making the argument. [00:15:25] Speaker 02: So if I were you, I would have started with the other point, but chose what you did. [00:15:30] Speaker 02: So here we are, and we're talking about whether you can get out of a problem by talking about the other side having a problem. [00:15:36] Speaker 02: And I'm not sure why you can. [00:15:37] Speaker 03: Yeah, and I mean, I take your Honor's point. [00:15:41] Speaker 03: I guess, I guess, would you agree that if appellant timely raised that statutory deadline argument, then the district court would have had to reject your voluntary and involuntary argument as untimely? [00:15:54] Speaker 03: Yes, Your Honor. [00:15:56] Speaker 03: Okay. [00:15:56] Speaker 02: Wait, so you're saying that's, I think you're now saying that your brief didn't make the argument within the 30 days? [00:16:02] Speaker 01: No, no, no. [00:16:03] Speaker 01: I'm sorry. [00:16:04] Speaker 01: I took it as a hypothetical as, yeah, I mean, certain, no, absolutely plaintiff is not, plaintiff's argument is that he timely raised the argument. [00:16:12] Speaker 01: If as a hypothetical, you know, it were time, okay, I'm so sorry. [00:16:18] Speaker 01: I think I might've misunderstood the hypothetical. [00:16:20] Speaker 01: And, but yeah, plaintiff's argument is that he did raise it within 30 days. [00:16:26] Speaker 01: And I think I can just shift to that argument now, although we can talk more about the trial court's discretion to refuse to consider an untimely argument. [00:16:36] Speaker 01: Mr. Schroeder adequately raised the voluntary involuntary rule by making the factual and legal argument that there was no federal jurisdiction [00:16:44] Speaker 01: because the state court erroneously dismissed the non-diverse defendant. [00:16:49] Speaker 01: And I think importantly what plaintiff's timely motion treatment does is tie the lack of jurisdiction, the legal issue to the involuntary act, the state court's erroneous dismissal of the non-diverse defendant. [00:17:05] Speaker 01: And I think, you know, as you noted, Judge Friedland, the involuntary-involuntary rule is a judge-made doctrine rooted in fairness in the conservation of limited judicial resources. [00:17:16] Speaker 01: The basic rule is that removal is improper if federal jurisdiction is created only by circumstances outside of the plaintiff's control because the plaintiff is master of the complaint [00:17:26] Speaker 01: and the plaintiff's complaint determines removability. [00:17:30] Speaker 01: And this court traced the history of that doctrine in Self v. Motors, and I do think it's important to note that the doctrine originated in the 1898 case, Powers v. Chesapeake and Ohio Railroad Company, but the court in that case never used the words voluntary or involuntary. [00:17:47] Speaker 01: Rather, the court explained that removal is improper if it is predicated solely on, quote, circumstances wholly beyond the plaintiff's control. [00:17:55] Speaker 01: And that's on page 100 of the opinion. [00:17:58] Speaker 01: In the next case developing the doctrine, Whitcomb, the Supreme Court held that a state court's ruling, quote, adverse to plaintiff without his assent could not operate to make the case removable. [00:18:09] Speaker 01: And in self, this court held that dismissal of the non-diverse plaintiff by the state court does not create diversity jurisdiction. [00:18:17] Speaker 02: Can I ask? [00:18:20] Speaker 02: To figure out whether you made this argument originally within the 30 days, it seems like the district court decided that you did. [00:18:28] Speaker 02: Are we reviewing that de novo, or do we apply some sort of abuse of discretion standard to the district court's evaluation about whether a brief made an argument well enough in the district court? [00:18:41] Speaker 01: Thank you, Your Honor. [00:18:43] Speaker 01: You know, this is obviously a very fact-bound question. [00:18:46] Speaker 01: And I think, you know, as we said on the brief, I think, you know, there is some authority for the idea that it could be a clearer standard or abuse of discretion. [00:18:55] Speaker 01: But even under a de novo standard of review, this court should conclude that Mr. Schroeder adequately raised the argument. [00:19:02] Speaker 01: And I would point the court to ER 162, for example. [00:19:05] Speaker 01: The header of, and this is in plaintiff's timely motion for remand, the header of that section provides, removal is improper because this court lacks jurisdiction. [00:19:16] Speaker 01: The argument under the header is that defendant took advantage of an error by the state court. [00:19:22] Speaker 01: to create an illusion that diversity jurisdiction exists. [00:19:25] Speaker 01: Thus, this court must reject federal jurisdiction in remand to the state court. [00:19:30] Speaker 01: And I think what's important about what plaintiff is doing in that example is tying the lack of federal jurisdiction to the fact that the state court erroneously dismissed the state case. [00:19:41] Speaker 01: So there we have sort of the confluence of the rule of law [00:19:45] Speaker 01: and the factual basis to support it, which I think this court should conclude is raised even under a de novo standard of review. [00:19:54] Speaker 03: Here's where I'm struggling a bit. [00:19:56] Speaker 03: The district court here decided to accept your voluntary and involuntary argument by rejecting appellants' untimely statutory deadline argument. [00:20:08] Speaker 03: In doing so, it engaged in a policy analysis of the statutory deadline and said that it was exercising authority to waive the statutory deadline for you. [00:20:21] Speaker 03: Would you agree that the district court had no authority to waive the statutory deadline? [00:20:27] Speaker 03: If I feel, if I believe that, do you lose then or is there a way you can still win? [00:20:33] Speaker 01: I guess I disagree with what the district court was doing. [00:20:37] Speaker 01: I think the district court expressly found that plaintiff did not waive the statutory deadline. [00:20:44] Speaker 01: And as we just pointed out, that legal conclusion is well supported by the factual record, which includes plaintiff's timely motion to remand, as well as Amazon's response to that motion. [00:20:57] Speaker 01: And I think under any sort of understanding of [00:21:01] Speaker 03: But the district court also kind of interwove saying that the appellant that it engaged that the appellant waived the statutory deadline argument. [00:21:17] Speaker 03: didn't it. [00:21:18] Speaker 01: No the district court expressly rejected the magistrate judges finding and recommendation that there was waiver. [00:21:26] Speaker 01: The district court said we're finding that this argument was not waived. [00:21:31] Speaker 02: Sorry didn't the district court give two reasons. [00:21:33] Speaker 02: I read the district court is having two reasons. [00:21:36] Speaker 02: One was that the Amazon did not object in time to timeliness. [00:21:40] Speaker 02: And the second was, and anyway, the motion to remand was good enough. [00:21:45] Speaker 02: So it was like two alternative reasons. [00:21:46] Speaker 01: And plaintiff is continuing to assert that both of those alternative reasons are correct. [00:21:52] Speaker 03: And so what if I don't agree with you that they're both correct? [00:21:57] Speaker 03: Can you win on one? [00:21:59] Speaker 03: I'm not sure about this 30 day. [00:22:01] Speaker 03: I don't like messing with the 30 day rule here. [00:22:06] Speaker 01: then I think if your honor is concerned about the 30 days, then I think the easiest path for this court to affirm is to find that the argument was adequately raised. [00:22:17] Speaker 01: And that argument is well supported by the record. [00:22:20] Speaker 01: Again, I would point this court to ER 162, ER 164, that's the argument under the header that we just talked about. [00:22:28] Speaker 01: The header on ER 164 is, quote, the record proves that the non-diverse defendant is a party to this case and his dismissal is error. [00:22:38] Speaker 01: And ER 156 to 157 is the recitation of the facts underlying the erroneous dismissal. [00:22:48] Speaker 01: And I think an important [00:22:50] Speaker 01: part of looking at whether something is adequately raised, you know, sort of the idea of this doctrine is that both that the court has an opportunity to rule on it, but also that the opposing party has the opportunity to meet the argument. [00:23:06] Speaker 01: And in this case, Amazon met the argument. [00:23:09] Speaker 01: In fact, the first line of Amazon's response to plaintiff's timely argument was, quote, plaintiff made the deliberate decision not to pursue entry against [00:23:20] Speaker 01: defendant, Don Kumdar, sorry, the non-diverse defendant. [00:23:24] Speaker 01: This choice and this choice alone resulted in complete diversity supporting the removal jurisdiction of this court." [00:23:31] Speaker 01: Amazon was engaging on the substantive question of whether the dismissal was voluntary or not, which demonstrates that voluntariness was squarely at issue. [00:23:42] Speaker 01: As Amazon concedes, magic words are not required. [00:23:45] Speaker 01: What is required though is that there's an assertion of the facts and law to support the argument. [00:23:52] Speaker 01: And in this case, the legal argument that plaintiff was making is that there was not diversity jurisdiction. [00:23:59] Speaker 01: And again, the fact was the trial court's erroneous dismissal of the case as the non-diverse defendant. [00:24:12] Speaker 03: We don't appear to have any additional questions you have to [00:24:16] Speaker 03: 2 minutes and 45 seconds, and it's your choice how to use them. [00:24:20] Speaker 01: Unless the court has other questions, we would respectfully ask this court to affirm. [00:24:23] Speaker 01: Thank you. [00:24:24] Speaker 03: Thank you. [00:24:27] Speaker 00: John Berg on behalf of the appellant again. [00:24:30] Speaker 00: You will notice if you review carefully this district court's order of remand, Judge Armageddon does not rule that it was sufficiently argued in the motion for remand. [00:24:43] Speaker 00: It doesn't come up. [00:24:44] Speaker 00: She refers to [00:24:46] Speaker 00: the argument as untimely, plaintiff's argument, sorry, appellee's argument as untimely. [00:24:53] Speaker 00: And then she expressly excuses, quote, excuses the timeliness of plaintiff's argument. [00:25:00] Speaker 00: You don't excuse timeliness of an argument that's timely. [00:25:07] Speaker 00: What this court did do is attempt to support the exercise of its discretion to excuse the timeliness [00:25:17] Speaker 00: by pointing to two things, the factual predicate and the motion for remand that we've discussed and this idea that it was fairly apparent that the appellee was thinking of that doctrine or that rule at the time of the filing of the motion for remand. [00:25:33] Speaker 00: But then the district court draws one conclusion from those two facts and that is that Amazon had fair notice and an opportunity to respond. [00:25:45] Speaker 00: At no point in this district court's opinion did the district court say what was in the motion for remand was sufficient to satisfy the deadline under 1447. [00:25:57] Speaker 00: The deadline under 1447 is strict. [00:26:01] Speaker 02: It is a matter of- Sorry, I finally found the sentence I wanted to ask you about when you're saying this, though. [00:26:05] Speaker 02: The court said further, although plaintiff did not express- this is at ER 5. [00:26:10] Speaker 02: Further, although plaintiff did not expressly invoke the voluntary, involuntary rule in his motion to remand, [00:26:15] Speaker 02: He supplied facts from which it was fairly apparent that he was relying on this rule. [00:26:19] Speaker 02: Why isn't that saying he raised it well enough? [00:26:24] Speaker 02: It's the fourth and fifth line or so of ER 5, right in the heart of the opinion in order adopting the FNR with clarification. [00:26:34] Speaker 00: So what I turn to is ER 6 and 7 where there's an in-depth analysis of this very point. [00:26:43] Speaker 00: Right? [00:26:43] Speaker 00: And it says again, at ER 6, the concept of first, I think, talking about the error. [00:26:53] Speaker 00: And then you see from the third, I'm sorry, fourth and third lines before the bottom, quote, this court therefore finds defendant received fair notice and an opportunity to respond. [00:27:06] Speaker 00: And so then it goes on. [00:27:07] Speaker 02: Isn't that usually a way of saying it was raised? [00:27:11] Speaker 02: Notice of the argument and opportunity to respond means that they made the argument, which is what it said the page before where it says adequately raised it. [00:27:20] Speaker 00: Proceeding that is the point that we actually asked for a cert reply and got a cert reply. [00:27:28] Speaker 00: Okay, so yes, we had an opportunity by asking for a surreply. [00:27:33] Speaker 00: And asking for a surreply, we said, this is improper, it's belated, it's outside the motion for remand. [00:27:40] Speaker 00: In the surreply, repeatedly, over and over, this is improper, belated, and outside the motion for remand. [00:27:49] Speaker 00: In our first objections to the first F&R by Magistrate Russo, [00:27:54] Speaker 00: We cited 1447C. [00:27:56] Speaker 00: We said this other belated argument was waived and the court agreed in its order declining to adopt that FNR. [00:28:10] Speaker 02: Right. [00:28:10] Speaker 02: And the other issue. [00:28:11] Speaker 02: But on this issue, the court says although plaintiff did not expressly invoke the involuntary rule, he supplied facts from which it was fairly apparent that he was trying to raise this rule. [00:28:21] Speaker 00: Yes, and along with other factors like us asking for a surreply and not being prejudiced, it comes to the conclusion that there's no unfairness to us and therefore she's exercising her discretion. [00:28:35] Speaker 02: I read it as two reasons though. [00:28:37] Speaker 02: One is it was raised well enough and anyway they waived the objection. [00:28:42] Speaker 00: Again, at ER 7 last time in that section, under these circumstances, the court will exercise its discretion to excuse the timeliness. [00:28:55] Speaker 00: So it says there is a fair appearance. [00:29:00] Speaker 00: It says there is a factual predicate within this motion for Iman. [00:29:04] Speaker 00: What it does not say is factual predicate is sufficient to satisfy 1440C, 47C, and Your Honors, no other court has found that. [00:29:15] Speaker 00: And that can't be enough. [00:29:17] Speaker 02: So I think you want us to review this de novo, though. [00:29:20] Speaker 02: So, I mean, does it matter what the district court said? [00:29:24] Speaker 00: Well, I think you may need to forge a standard in terms of what is necessary within a motion to remand to satisfy 1447C. [00:29:33] Speaker 00: And I would say to your honor, anything that allows an implicit argument is going to cause a mess on and really spoil the whole purpose behind 1447C, which is to resolve the venue issue at the earliest moment [00:29:52] Speaker 00: Right? [00:29:53] Speaker 00: And what you're going to have is the extra multi-factor considerations about fairness to decide whether or not we should deem an implicit argument sufficient to satisfy. [00:30:04] Speaker 00: And no court has done that and it doesn't make practical sense to do that. [00:30:08] Speaker 02: So if you want us, if you think this is a novel question, we need to publish to resolve it, but you want us to do it in the next, how many days? [00:30:14] Speaker 03: Yeah, I wanted to clarify the time and with both parties just so that, [00:30:20] Speaker 03: I'm not sure that, you said you have a trial date in the district court? [00:30:25] Speaker 00: February 23rd. [00:30:27] Speaker 00: In state court though, because it's... State court. [00:30:29] Speaker 00: Wait, where's the trial date? [00:30:32] Speaker 00: February 23rd. [00:30:33] Speaker 00: And it's where? [00:30:34] Speaker 00: 20 days from now. [00:30:35] Speaker 00: And it's where? [00:30:36] Speaker 00: It's in Multnomah County, Oregon, state court. [00:30:40] Speaker 03: The matter was remanded and we appealed based on... Okay, so hypothetically, and I'm not, we have a conference, so I'm not [00:30:48] Speaker 03: Hypothetically, if we agreed that to affirm the district court on the motion to remand, then you have a trial date on the 23rd. [00:30:59] Speaker 00: That is correct. [00:31:00] Speaker 03: All right. [00:31:01] Speaker 03: But if we can't get it done, then the trial date's obviously going to go away for both parties. [00:31:08] Speaker 03: I mean, you know, that doesn't [00:31:11] Speaker 03: give us a lot of, you know, maybe we can get it done. [00:31:13] Speaker 03: I don't know. [00:31:14] Speaker 03: We have in conference. [00:31:15] Speaker 03: So one way or the other. [00:31:17] Speaker 03: So if we agreed that you win, then of course it's in the motion to remit. [00:31:23] Speaker 03: Then you're back in the district court, right? [00:31:25] Speaker 00: The easy way to deal with it was a stay pending appeal, which we requested, but the state court declined to grant that stay. [00:31:34] Speaker 00: So we asked for expedited treatment here. [00:31:37] Speaker 03: Okay. [00:31:38] Speaker 03: And let me just, I know I have a Pelley on the line here too, just in that limited area. [00:31:43] Speaker 03: Is that, is that your understanding of the trial date as well? [00:31:47] Speaker 01: Yes, your honor. [00:31:48] Speaker 03: So if we affirmed, then you're going to trial the 23rd. [00:31:51] Speaker 03: If we don't affirm, but you know, it doesn't, I can't make any promises about anything, but it's good for us to have the backdrop of we obviously like to [00:32:06] Speaker 03: be mindful of the real world. [00:32:08] Speaker 02: Can I just ask, though, so there is no stay pending this appeal, so if we don't do anything, the trial is happening? [00:32:15] Speaker 02: Is that the situation? [00:32:16] Speaker 00: The trial would happen, and I believe any judgment would be subject to reversal based on the absence of remand jurisdiction and the Supremacy Clause issues and all kinds of the mess. [00:32:32] Speaker 00: Is my time up otherwise? [00:32:34] Speaker 03: Yes, it's way up. [00:32:36] Speaker 00: Thank you. [00:32:37] Speaker 03: But thank you both for your helpful arguments in this matter. [00:32:41] Speaker 03: And of course, we always want to try to accommodate schedules, but we have to get the right answer too. [00:32:47] Speaker 03: So we'll conference and do our best. [00:32:50] Speaker 03: Thank you.