[00:00:01] Speaker 01:
May it please the court?

[00:00:03] Speaker 01:
I'm Eric Schnapper, representing plaintiffs and appellants in this case.

[00:00:08] Speaker 01:
The district court had federal jurisdiction on two grounds in this case.

[00:00:14] Speaker 01:
First, that there's diversity jurisdiction, and secondly, that there would be federal question jurisdiction.

[00:00:21] Speaker 01:
I'd like to begin with the issue of diversity jurisdiction.

[00:00:24] Speaker 01:
We have three different types of plaintiffs in this case.

[00:00:29] Speaker 01:
It occurred that way because it was originally

[00:00:31] Speaker 01:
clearly a federal question case and the circumstances have changed.

[00:00:36] Speaker 01:
We have several plaintiffs who were always diverse and the problem isn't there.

[00:00:42] Speaker 01:
Secondly, we have plaintiffs who are formerly non-diverse.

[00:00:45] Speaker 01:
They were not diverse at the time the case was filed.

[00:00:48] Speaker 01:
They're diverse now.

[00:00:50] Speaker 01:
What we propose to do as to them, a procedure that the Supreme Court

[00:00:55] Speaker 01:
envisioned in Grupo is to dismiss them now and then rejoin them.

[00:01:03] Speaker 01:
Diversity status is determined at the time of filing, and so as things now stand, they're non-diverse.

[00:01:11] Speaker 01:
But if we dismiss them and then rejoin them, they would again be diverse.

[00:01:15] Speaker 01:
The district court thought that was improper.

[00:01:18] Speaker 01:
The district court relied on a passage in Grupo which said,

[00:01:24] Speaker 01:
And I quote here, if the purported cure arose from a change, not from a change to the parties, but for a change in the citizenship of a continuing party, then the case had to be dismissed.

[00:01:37] Speaker 01:
But we are changing the parties.

[00:01:39] Speaker 01:
We are dismissing the formerly non-diverse parties.

[00:01:42] Speaker 01:
We're rejoining them, but they're not continuing parties.

[00:01:45] Speaker 01:
They come back in anew.

[00:01:47] Speaker 01:
You would agree that's a description?

[00:01:48] Speaker 02:
It sounds like a difference without a distinction.

[00:01:50] Speaker 01:
I'm sorry?

[00:01:51] Speaker 02:
What's the difference?

[00:01:53] Speaker 02:
I mean, that sounds like, to me, a difference without a distinction.

[00:01:56] Speaker 02:
In fact, they are the same parties.

[00:01:58] Speaker 02:
You're just pretending they're off the stage and then they're back on the stage.

[00:02:01] Speaker 02:
Well, I don't understand how that's really different.

[00:02:04] Speaker 01:
Well, the procedure envisioned in Grupo was you dismiss the plaintiffs and then they refile the lawsuit and that's fine.

[00:02:13] Speaker 01:
That's exactly what happened in Grupo.

[00:02:15] Speaker 01:
The question here is whether we would have to dismiss their claims and have them file separate lawsuits.

[00:02:21] Speaker 01:
which I don't think the defendant's dispute we could do, or have them rejoin this lawsuit.

[00:02:27] Speaker 01:
It just makes no sense to say the claims get dismissed and they can file a new lawsuit, which is exactly what Grupo says they can do, but they can't rejoin this lawsuit.

[00:02:36] Speaker 01:
Then we would have two lawsuits about the same facts

[00:02:40] Speaker 01:
It just wouldn't make any sense.

[00:02:41] Speaker 04:
That would be cleaner.

[00:02:42] Speaker 04:
Why couldn't you do that?

[00:02:43] Speaker 04:
Is there a statute of limitations problem or something like that?

[00:02:46] Speaker 01:
Not that the other side has raised.

[00:02:49] Speaker 04:
The immediate question... You could just refile the case completely anew, correct?

[00:02:54] Speaker 01:
At this point, nobody's questioning that.

[00:02:57] Speaker 01:
But the immediate... Why don't you do that, is my question.

[00:03:00] Speaker 01:
Because this would solve all these problems.

[00:03:04] Speaker 01:
Well, the district court said, seemed to think we couldn't dismiss these claims at all.

[00:03:09] Speaker 01:
And we think we can.

[00:03:12] Speaker 01:
And the defendant has a slightly different account.

[00:03:15] Speaker 01:
The defendant reads Group O as saying, if you have a formerly diverse plaintiff in the case, you must dismiss the entire case.

[00:03:23] Speaker 01:
Now, they dismissed the entire case in Group O because there was only one plaintiff.

[00:03:28] Speaker 01:
So if that plaintiff was formerly diverse and you dismiss it, then there's no case left.

[00:03:33] Speaker 01:
But if we dismiss the formerly diverse plaintiffs here, there are still always diverse plaintiffs left.

[00:03:39] Speaker 01:
So the immediate question here is only whether this case can go forward dismissing the formerly diverse plaintiffs.

[00:03:47] Speaker 01:
Whether we can bring them back in or have to file new lawsuits for them doesn't affect whether there's federal diversity jurisdiction here.

[00:03:56] Speaker 02:
It would... Well, it does with regard to the claims that they purport to bring.

[00:04:01] Speaker 02:
I mean, not all plaintiffs own exactly the same claims.

[00:04:05] Speaker 02:
It seems to me what you're proposing

[00:04:07] Speaker 02:
cuts all substance out of Grupo's decision.

[00:04:11] Speaker 02:
I don't understand how you can send somebody off the stage and bring them right back and pretend that nothing has happened.

[00:04:18] Speaker 01:
Well, I'm going to remind you, that's what happened.

[00:04:21] Speaker 01:
The court said it happened in Grupo, that the plaintiffs should... Well, they could file a new, and you could file a new here.

[00:04:27] Speaker 02:
Judge Boudet just asked you why you wouldn't.

[00:04:29] Speaker 02:
That would simplify everything.

[00:04:32] Speaker 01:
Your Honor, that would be the immediate problem in this case is that the court said we couldn't dismiss these plaintiffs at all.

[00:04:39] Speaker 02:
Well, the immediate problem is that you lack complete diversity.

[00:04:43] Speaker 02:
And you seem to acknowledge that you lack complete diversity.

[00:04:46] Speaker 02:
And that's rule number one for diversity jurisdiction.

[00:04:49] Speaker 02:
So you can't pass that test as the claim is currently brought.

[00:04:55] Speaker 01:
Is that correct?

[00:04:56] Speaker 01:
That's correct.

[00:04:57] Speaker 01:
And we propose to deal with that by dismissing the non-diverse

[00:05:01] Speaker 01:
That's a routine motion under Rule 21.

[00:05:05] Speaker 01:
That's all we're proposing to do here.

[00:05:08] Speaker 01:
All the court has to rule in now is can we dismiss the non-diverse parties?

[00:05:14] Speaker 04:
Whether we can bring them back in or they have to file... Nothing prevents you from dismissing this case completely, correct?

[00:05:18] Speaker 04:
And then just filing a new claim with the only diverse parties?

[00:05:24] Speaker 01:
Yes, but there's nothing in the rules that requires us to dismiss the claims of the always diverse parties.

[00:05:30] Speaker 01:
The normal procedure where you have a non-diverse party is to dismiss the non-diverse party.

[00:05:35] Speaker 01:
That's what we're proposing to do.

[00:05:37] Speaker 01:
Whether the formerly non-diverse parties come back in or bring another lawsuit which gets joined with this one, that issue isn't before the court.

[00:05:46] Speaker 02:
The problem is... Well, you had your opportunity to dismiss them.

[00:05:50] Speaker 02:
The district court granted defendants' motion.

[00:05:55] Speaker 02:
You're appealing that, but it doesn't sound like you're really questioning the rationale

[00:06:01] Speaker 02:
You're saying, well, we've got this other solution to the problem.

[00:06:04] Speaker 02:
But what was wrong with what the district court ruled?

[00:06:08] Speaker 02:
You lack complete diversity.

[00:06:09] Speaker 02:
Hence, you have to dismiss.

[00:06:12] Speaker 02:
That seems correct.

[00:06:12] Speaker 02:
You seem to have acknowledged that.

[00:06:14] Speaker 02:
You want to do something different, but I'm not sure how that supports an appeal of the dismissal.

[00:06:20] Speaker 01:
Well, let me go back to the question before the court, which was whether it would be

[00:06:26] Speaker 01:
pointless to let us file this amended complaint because it couldn't possibly survive.

[00:06:32] Speaker 01:
And our response was, we will file the amended complaint.

[00:06:35] Speaker 01:
We will then move to dismiss the non-diverse parties.

[00:06:38] Speaker 01:
District court said we can't do that.

[00:06:40] Speaker 02:
Stop right there.

[00:06:41] Speaker 02:
You seem to acknowledge that the fourth amended complaint that has been proposed is before the court fails the complete diversity test.

[00:06:50] Speaker 02:
You have not provided an amended complaint that will pass the complete diversity test.

[00:06:55] Speaker 02:
The district court ruled based on the amended complaint you proposed, and it wasn't wrong.

[00:07:00] Speaker 02:
It lacks complete diversity.

[00:07:02] Speaker 02:
So how is that appealable?

[00:07:04] Speaker 01:
Because we indicated what we wanted to do was to dismiss the non-diverse parties, and the judge said we could not do that.

[00:07:14] Speaker 01:
I mean, I understand the procedural posture is a little bit unusual, but I guess the question would have been, should we have responded to the order

[00:07:24] Speaker 01:
by dismissing the case and filing it anew, it would have made no sense.

[00:07:29] Speaker 01:
We still have this federal question case issue in the case.

[00:07:33] Speaker 01:
I mean, we'd have all sorts of procedural problems if we tried to solve that problem that way.

[00:07:41] Speaker 01:
There's a second question about the never diverse plaintiffs.

[00:07:49] Speaker 01:
Their district court here made three distinct errors.

[00:07:52] Speaker 01:
First, it said that

[00:07:54] Speaker 01:
of the defendant had argued that those were indispensable parties.

[00:07:59] Speaker 01:
That's just wrong.

[00:08:00] Speaker 01:
They didn't argue that.

[00:08:02] Speaker 01:
Secondly, the district court faulted us for not briefing the four Section 19B factors.

[00:08:10] Speaker 01:
Those factors have nothing to do with the issue in this case.

[00:08:13] Speaker 01:
You have to go back to the structure of Rule 19.

[00:08:16] Speaker 01:
Rule 19A defines required parties as the language of the rule.

[00:08:22] Speaker 01:
And it says, the required parties must be joined if you can join them.

[00:08:27] Speaker 01:
Rule 19B says, if there's a required party that can't be joined, here's how you decide whether the remaining parties can continue.

[00:08:37] Speaker 01:
That's just not the problem in our case.

[00:08:39] Speaker 01:
There's no contention here that we have required parties that can't be joined.

[00:08:46] Speaker 01:
And that would be the issue.

[00:08:47] Speaker 01:
The issue is, can this case not go forward because the required parties can't be joined?

[00:08:53] Speaker 01:
And it's clear they're not required.

[00:08:55] Speaker 04:
How can the case proceed without the estate of the victim here?

[00:09:00] Speaker 01:
The estate is not a required party.

[00:09:03] Speaker 01:
This is like a car accident with three victims.

[00:09:06] Speaker 01:
No one is required a party in that situation.

[00:09:09] Speaker 04:
But to go back to... I mean, aren't they all... They're not... The other parties are not victims in the sense that they were attacked.

[00:09:19] Speaker 04:
They're just victims in the sense that their loved one was attacked.

[00:09:22] Speaker 01:
But they have different kinds of claims.

[00:09:25] Speaker 01:
But the standard for a required party is spelled out in Rule 19A.

[00:09:30] Speaker 01:
The defendant has never argued these are required parties under 19A, and they can't.

[00:09:37] Speaker 01:
The beginning language in Rule 19A says you're not required party if joining you would defeat subject matter jurisdiction.

[00:09:46] Speaker 01:
The defendants want them in the case to defeat subject matter jurisdiction.

[00:09:51] Speaker 01:
But under the clear language of 19A, if they would defeat subject matter jurisdiction, they're not required.

[00:09:58] Speaker 01:
That's the end of it.

[00:10:00] Speaker 01:
So they didn't raise it, and the judge

[00:10:04] Speaker 01:
invoked the wrong standard and disregarded the first 45 words of Rule 19B, which explained that it's not about the problem in this case, it's about a different problem.

[00:10:17] Speaker 01:
The other question in the case concerns federal question jurisdiction.

[00:10:23] Speaker 01:
There are five subsidiary issues here.

[00:10:26] Speaker 01:
The central argument that was advanced in the district court

[00:10:29] Speaker 01:
by the defendant was that if there's no federal private cause of action to enforce the federal statute at issue, there can't be federal question jurisdiction.

[00:10:43] Speaker 01:
The district court bought that in a somewhat hard to understand opinion.

[00:10:49] Speaker 01:
At page 11 of the record excerpts, there's an entire paragraph about this.

[00:10:55] Speaker 01:
The district court either thought that was always the case or usually the case.

[00:10:58] Speaker 01:
It's wrong either way.

[00:11:00] Speaker 01:
The dispositive decision about this issue, about whether it matters whether there's a private cause of action for purposes of this kind of federal question case, is Grable.

[00:11:12] Speaker 01:
And Grable says three things.

[00:11:14] Speaker 01:
First, the private cause of action is not a necessary condition of federal question jurisdiction.

[00:11:20] Speaker 01:
Secondly, Merrill Dow did not establish any kind of per se rule, and clearly the district court thought that was a per se rule.

[00:11:28] Speaker 01:
And third, whether there's a private cause of action is merely relevant to, but not dispositive of, the question of whether there's federal question jurisdiction.

[00:11:38] Speaker 01:
This court has, on a number of occasions, separated that issue out and said there would be two circumstances under which there would be federal question jurisdiction.

[00:11:47] Speaker 01:
One would be if there is a federal private cause of action.

[00:11:52] Speaker 01:
And the other one would be under the grable factors.

[00:11:54] Speaker 01:
The court said it repeatedly.

[00:11:55] Speaker 01:
You joined the Newtack Village case where you used that formula, and we think that's the right formula.

[00:12:02] Speaker 04:
So that's my question then.

[00:12:04] Speaker 04:
So why would there be a federal interest that's substantial when you're just interpreting a criminal law statute?

[00:12:14] Speaker 04:
If this were to go to state court and you're going to use the criminal law as a standard of negligence, I just don't see why that's substantial on the federal government at all.

[00:12:26] Speaker 04:
Because a state court interpretation of that statute is not going to be binding on any federal prosecutor.

[00:12:31] Speaker 04:
It's not going to be binding on any case, frankly, in federal court.

[00:12:36] Speaker 04:
So I just don't understand why it's substantial.

[00:12:38] Speaker 01:
There were two answers to that.

[00:12:39] Speaker 01:
First of all, on your theory, Grable would have been wrongly decided.

[00:12:43] Speaker 01:
The issue in Grable,

[00:12:44] Speaker 01:
was did that claim come into federal court?

[00:12:46] Speaker 01:
If it had gone to state court, the state court's interpretation of the Internal Revenue Code wouldn't have been binding on anybody, but Supreme Court said it belonged in federal court.

[00:12:54] Speaker 04:
Yeah, I think it's distinguishable because I could see that having collateral effects in this state, because that's about notice of post offices, I think, right?

[00:13:01] Speaker 04:
Am I right?

[00:13:02] Speaker 04:
Well, I just think it's distinguishable because here we're talking about a federal criminal statute, right?

[00:13:08] Speaker 04:
And if a state court interpreted it, it won't have spillover effects anywhere.

[00:13:13] Speaker 01:
I don't know that there would be spill or effect in Grable, but that's not the standard.

[00:13:17] Speaker 01:
The standard is whether the issue is important to the federal government, not whether it's in federal court or state court.

[00:13:22] Speaker 04:
So why is it important to the federal government if a state court interprets a criminal law statute?

[00:13:27] Speaker 01:
In that theory, every case would fail, because it's just the state.

[00:13:32] Speaker 01:
It would be in state.

[00:13:33] Speaker 01:
I don't want to say just the state court.

[00:13:34] Speaker 01:
That's not very federalist of me.

[00:13:36] Speaker 01:
But it would be in state court.

[00:13:37] Speaker 01:
That argument can't be right.

[00:13:39] Speaker 01:
The question here is, is the underlying

[00:13:43] Speaker 01:
dispute going to be one of importance to the federal government.

[00:13:47] Speaker 01:
And the court distinguished, say, gun, where it was hard to say what federal issue would come up.

[00:13:54] Speaker 01:
And the issue here, which both parties described, is whether the defendant's conduct violated the criminal statute.

[00:14:00] Speaker 01:
This is a very important criminal statute.

[00:14:02] Speaker 01:
There are very important issues of statutory interpretation out there.

[00:14:07] Speaker 04:
Can you articulate why it's important to the federal government that

[00:14:11] Speaker 04:
that that being federal court versus state court, that's what I'm missing.

[00:14:15] Speaker 01:
Our view is that's not the standard.

[00:14:17] Speaker 01:
The standard is, is the question important to the federal government?

[00:14:21] Speaker 01:
Okay, yeah, explain that.

[00:14:21] Speaker 01:
That's our view.

[00:14:22] Speaker 01:
Okay.

[00:14:23] Speaker 01:
I'd like to save the remainder of my time.

[00:14:25] Speaker 03:
We'll go one minute for rebuttal.

[00:14:38] Speaker 00:
Your honors, and may it please the court, Paul Harreld for Defendant Apoly Google.

[00:14:43] Speaker 00:
I'd like to begin by noting a remark Judge Owens made in a prior case that some cases go on for a long time, and this has been one of them.

[00:14:52] Speaker 00:
We're here today because plaintiffs are attempting to restart a nine-year-old case that has already run its course through the entire federal judiciary.

[00:15:03] Speaker 00:
After four complaints and appeal to this court,

[00:15:07] Speaker 00:
a unanimous Supreme Court decision concluding that their claims were meritless and over a dozen other federal court decisions rejecting similar anti-terrorism claims against Internet platforms.

[00:15:20] Speaker 00:
plaintiffs now finally concede that they are unable to state a viable claim under the federal statute they litigated under for nearly a decade.

[00:15:30] Speaker 00:
And that should have been the end of the matter, just as it was in the Copeland, Sinclair, and Palmucci cases that this court disposed of after Tomna.

[00:15:39] Speaker 00:
But rather than accept this outcome, plaintiffs propose to pivot to entirely new state and foreign law theories that they knew about,

[00:15:48] Speaker 00:
but tactically and strategically withheld for years.

[00:15:53] Speaker 00:
The district court correctly denied that effort as futile, finding it lacked any basis for subject matter jurisdiction, and this court should affirm that sound exercise of discretion.

[00:16:05] Speaker 00:
I'd like to make three points this morning.

[00:16:06] Speaker 00:
The first is about diversity jurisdiction.

[00:16:09] Speaker 00:
As Judge Clifton's question to my friend on the other side pointed out,

[00:16:17] Speaker 00:
The diversity question, diversity jurisdiction question here is quite simple.

[00:16:21] Speaker 00:
The proposed fourth amended complaint that plaintiffs submitted to the court below doesn't state a claim for diversity jurisdiction.

[00:16:30] Speaker 00:
It's concededly the fact that the parties to that complaint are not diverse, and that's frankly enough to end the matter and affirm on that ground.

[00:16:41] Speaker 00:
Plaintiff's proposals to cure that conceited lack of diversity are just an impermissible exercise in jurisdictional gamesmanship that violate the foundational time of filing rule by making a distinction without a difference and would require jettisoning what has always been the essential and central party to this case, the estate of Noemi Gonzalez.

[00:17:04] Speaker 00:
Second, the district court correctly found no federal question jurisdiction.

[00:17:09] Speaker 00:
plaintiffs' attempts to bootstrap a state law and negligence claim into federal court is foreclosed by the Supreme Court's decision in Merrill Dow and fails several of the grable factors.

[00:17:21] Speaker 00:
And third, even if this court were to find a path to jurisdiction where the district court did not, denial of leave to amend should still be affirmed on the alternative and overwhelming grounds of undue delay, prejudice, and futility on the merits.

[00:17:38] Speaker 00:
I think probably now on the diversity jurisdiction point, it makes sense to talk or to address Judge Bumte's question to my counsel, my friend on the other side about whether simply refiling this as a new case would be something that plaintiffs could do that would maybe more efficiently resolve these issues.

[00:17:58] Speaker 00:
I don't think that's the case at all.

[00:18:00] Speaker 00:
The most efficient way to dispose of this case is for this court to affirm and bring it to an end.

[00:18:06] Speaker 00:
I think apparent from the prior decisions in this case and the other cases that plaintiffs have no viable claim under any theory and simply allowing it to be really relitigated under a new moniker is not an efficient use of the court's resources.

[00:18:21] Speaker 04:
Would there be anything precluding them from doing that, a sexual limitations defense or anything of that nature?

[00:18:26] Speaker 00:
We haven't analyzed it in detail, Your Honor, and it might depend on whatever new claims they tried to plead in that new action.

[00:18:36] Speaker 00:
My recollection is that the statute of limitations for a negligence claim under California law is short and would have run by now.

[00:18:44] Speaker 00:
I think it's two or three years.

[00:18:45] Speaker 00:
I don't know if there are other doctrines that might toll that that plaintiffs could rely on.

[00:18:50] Speaker 00:
I confess I'm not an expert or familiar with French law, so I don't know what the statute of limitations are.

[00:18:56] Speaker 00:
they even have such a thing under French law.

[00:19:00] Speaker 00:
I do think there is a separate issue of the preclusive effect of this decision that might as a matter of claim preclusion or issue preclusion prohibit a new suit.

[00:19:13] Speaker 02:
But ordinarily a dismissal based on lack of jurisdiction is not taken to be a ruling on the merits.

[00:19:20] Speaker 02:
I mean, we wind up dismissing without prejudice

[00:19:24] Speaker 02:
So you think there's a basis upon which you seek finality, but I'm not sure that a jurisdictional dismissal can give you that.

[00:19:34] Speaker 02:
I'm not sure there's a great risk otherwise, but there are lots of questions about this case that I can't answer any more than you can.

[00:19:41] Speaker 02:
So is there anything else we can do other than if we would affirm we're basically saying, we don't have jurisdiction,

[00:19:49] Speaker 02:
and leave it if they want to try to file someplace else for that court to try to deal with the issue.

[00:19:56] Speaker 00:
To be sure, Your Honor, this court doesn't need to decide whether the judgment in this case would have preclusive effect on a future court.

[00:20:04] Speaker 00:
So it's not necessary to decide that.

[00:20:07] Speaker 00:
I do think you're correct, Your Honor, that dismissals for lack of jurisdiction are typically without prejudice.

[00:20:13] Speaker 00:
But that isn't quite what we have here.

[00:20:16] Speaker 00:
It's important to recall the procedural history and the four prior complaints in this case, the last of which, the third amended complaint, was dismissed by the district court on the merits.

[00:20:31] Speaker 00:
And then that dismissal was affirmed by

[00:20:34] Speaker 00:
this court and while I can see the Supreme Court vacated that judgment it did so noting that the complaint appeared to state little if any claim on the merits and after that when plaintiffs were given the opportunity to move for leave to file a fourth amended complaint they abandoned all of those prior claims that they brought under federal law which is a waiver of those claims and a concession that they can't

[00:21:03] Speaker 00:
state a claim on the merits of those.

[00:21:05] Speaker 00:
So that is an issue in the judgment here, not just the lack of jurisdiction over the new claims.

[00:21:11] Speaker 00:
And I would submit it would be an anomalous and unfair result if a plaintiff were able to escape the preclusive effects of prior decisions against it simply by trying to introduce new claims that deprived the court of jurisdiction over the case.

[00:21:31] Speaker 00:
I think maybe now I should turn to the question of federal question jurisdiction unless there are any more questions about diversity.

[00:21:38] Speaker 00:
Plaintiff's argument here is equally flawed.

[00:21:41] Speaker 00:
The only hook for federal question jurisdiction is a California negligence claim that appears to be premised, at least in part, on an alleged violation of a federal criminal statute.

[00:21:53] Speaker 00:
the material support statute 2339A.

[00:21:57] Speaker 00:
Now that theory we think is squarely foreclosed by the Supreme Court's decision in Merrill Dow, which also addressed a negligence per se claim, in that case premised on a misbranding violation of the Food, Drug and Cosmetics Act.

[00:22:11] Speaker 00:
But the reasoning of Merrill Dow applies with great force in this case, and nothing in Grable or any subsequent Supreme Court decisions has overruled or rejected that reasoning.

[00:22:22] Speaker 04:
So that's my question.

[00:22:24] Speaker 04:
Is your argument that Merrill Dow applies in all cases where there's negligence per se as a charge?

[00:22:28] Speaker 04:
Or how does it interact with Grable?

[00:22:32] Speaker 00:
Grable put Merrill Dow in context.

[00:22:35] Speaker 00:
So since Grable, I think it's fair to say that negligence per se claims premised on violations of federal law, there is a theoretical possibility that those could arise under federal law and invoke the court's federal question jurisdiction.

[00:22:52] Speaker 00:
I think that's what Grable suggests, but to my knowledge there aren't any such cases, and it would be the rare sort of negligence per se claim that did present a substantial question of federal law.

[00:23:04] Speaker 00:
As Your Honor noted, here we have a federal criminal statute where there's no substantial federal interest that would preclude the state court from passing on that question if the federal

[00:23:18] Speaker 00:
government has an interest in enforcing the law, it can do so in federal court without being affected by the state.

[00:23:24] Speaker 04:
How do you analyze what's substantial?

[00:23:27] Speaker 04:
Is it the spillover effects?

[00:23:28] Speaker 04:
That's what I was thinking of it.

[00:23:29] Speaker 04:
If the state court rules on a federal question that could have spillover effects on the federal government or other entities, that makes it substantial.

[00:23:38] Speaker 04:
How else would you think about it?

[00:23:41] Speaker 00:
That's one avenue that courts have highlighted for satisfying the substantiality prong of Grable.

[00:23:50] Speaker 00:
On this front, I think the court's City of Oakland decision is instructive as it lays out some different factors that courts consider when weighing the substantiality factor.

[00:24:00] Speaker 00:
The fact that the question calls for a pure legal question about the interpretation of a federal statute or implicates the operation of a federal agency or as in Grable I think the question as you noted was about title to a piece of property where the title was affected by whether the IRS had given a statutorily compliant notice by either personal service or certified

[00:24:28] Speaker 04:
I could see that having spillover effects, and that's why that makes sense there.

[00:24:34] Speaker 00:
Absolutely, it has a spillover effect on how the IRS operates in that case, and there's nothing like that here.

[00:24:40] Speaker 00:
And I think it's important to understand that the substantiality inquiry under Grable is about the importance of the issue to the federal system as a whole.

[00:24:49] Speaker 00:
We acknowledge that this case is very important to the parties, but that's not the question for purposes of determining whether there's federal question jurisdiction.

[00:24:58] Speaker 00:
I would also like to highlight the other ground that the district court found a lack of federal question jurisdiction here, and that's that it's not at all clear that the complaint necessarily raises any substantial question of federal law.

[00:25:12] Speaker 00:
The way that the negligence claim is pled in the complaint, it seems like there is a path for plaintiffs to state a claim without relying on the material support statute at all, and the court could also affirm on that ground.

[00:25:28] Speaker 00:
Your honors, I'd like to maybe conclude by talking briefly about the alternative grounds for affirmance here.

[00:25:33] Speaker 00:
The delay here is substantial.

[00:25:37] Speaker 00:
In fact, I think it's hard to find a worse case of delay than the one we have here, where the case has been going on for nine years, where there have been four prior complaints.

[00:25:50] Speaker 00:
And we're at the fifth proposed complaint in this case.

[00:25:53] Speaker 00:
And it's conceded that the claims that are being attempted

[00:25:57] Speaker 00:
the plans are attempting to bring now were known and available to them and could have been pled earlier.

[00:26:02] Speaker 00:
There's no reason and I think the court's decision in asking properties is constructive on this point.

[00:26:09] Speaker 00:
At some point a party may not respond to an adverse ruling by claiming that another theory not previously advanced provides a possible ground for relief and should be considered.

[00:26:20] Speaker 00:
So there was no certainly no abuse of discretion by the district court in denying plaintiffs leave to amend and we respectfully urge the court to affirm unless the court has any further questions All right.

[00:26:33] Speaker 01:
Thank you counsel Your Honor may it please the court first to respond to a point that my friend made The question here isn't whether this case is going to end

[00:26:49] Speaker 01:
The question is only whether it continues in state court or federal court.

[00:26:53] Speaker 01:
It doesn't go away.

[00:26:56] Speaker 01:
They objected in their brief and below and here to what they describe as the delay in raising this.

[00:27:04] Speaker 01:
I'd remind the court that for the large majority of the time of the delay, this case was up on appeal.

[00:27:10] Speaker 01:
There was no possible way to amend the pleadings.

[00:27:14] Speaker 01:
They suggest that we should have known all along

[00:27:17] Speaker 01:
that the aiding and abetting claim, which was the original federal claim, was baseless.

[00:27:22] Speaker 01:
I'd remind the court that this court unanimously upheld that claim in the Tamna case.

[00:27:30] Speaker 01:
The Ninth Circuit got it wrong.

[00:27:32] Speaker 01:
But it was clearly not a frivolous argument to have made.

[00:27:36] Speaker 01:
It would be controlling today if the Supreme Court hadn't granted certiorari.

[00:27:42] Speaker 01:
So I think this is not a delay problem.

[00:27:44] Speaker 01:
The law has changed underneath us here, as sometimes happens.

[00:27:49] Speaker 01:
With regard to the question of what constitutes a substantial federal claim, Judge Bumtang, we

[00:27:57] Speaker 01:
There's no spillover effect in Grable that's different from here.

[00:28:02] Speaker 01:
The IRS would not have been bound by a state court decision in Beaumontay about how the IRS would be supposed to, excuse me, in Grable, sorry, about how to proceed.

[00:28:16] Speaker 01:
They wouldn't do that.

[00:28:17] Speaker 01:
And the criminal division won't be bound by a state court decision about the criminal statute.

[00:28:23] Speaker 01:
It's the same situation.

[00:28:24] Speaker 01:
The question is, does the answer matter to the federal government?

[00:28:27] Speaker 01:
not is the federal government going to be bound by it.

[00:28:30] Speaker 01:
It wouldn't be bound either way.

[00:28:32] Speaker 01:
Thank you very much.

[00:28:32] Speaker 03:
Thank you, counsel.

[00:28:33] Speaker 03:
Thanks to both of you for your briefing and argument in this case.

[00:28:36] Speaker 03:
This matter is submitted.

[00:28:38] Speaker 03:
Judge Boumante and I will be back tomorrow with the chief.

[00:28:41] Speaker 03:
Thank you.

[00:28:41] Speaker 03:
And so remember, students, hang by.

[00:28:44] Speaker 03:
Law clerks are going to talk to you, answer questions.

[00:28:47] Speaker 03:
And then once we're done conferencing, we'll come out and we'll talk to you a little bit as well.

[00:28:51] Speaker 03:
Thank you.