[00:00:00] Speaker 01:
Good morning.

[00:00:00] Speaker 00:
Good morning.

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

[00:00:02] Speaker 00:
I'd like to reserve four minutes.

[00:00:04] Speaker 01:
All right, counsel, please be reminded that the time shown on your clock is your total time remaining.

[00:00:09] Speaker 00:
Understood.

[00:00:10] Speaker 01:
All right.

[00:00:14] Speaker 00:
So I'd like to start with the jurisdiction issue.

[00:00:16] Speaker 00:
I think that's the most important issue in this case.

[00:00:18] Speaker 00:
And I think when you get into the briefing, the core question that the jurisdiction issue boils down to is what is the effect, if any,

[00:00:29] Speaker 00:
of a non-diverse defendant filing an affidavit which negates the allegations and the complaint.

[00:00:35] Speaker 00:
Is that enough to show fraudulent joinder?

[00:00:40] Speaker 00:
And if an affidavit can do it, what kind of affidavit can do it?

[00:00:47] Speaker 00:
And out of all the cases that the parties have cited on the jurisdiction issue, only two of the cases involve affidavits from the non-diverse defendant like we have in this case.

[00:00:57] Speaker 00:
So one of those cases is Grand Care v. Thrower.

[00:01:02] Speaker 00:
That's a ninth circuit case out of California like this one.

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And the other case is an Alabama case out of the 11th circuit.

[00:01:08] Speaker 00:
That's Leg v. Wyeth.

[00:01:09] Speaker 00:
So I want to talk about those two cases.

[00:01:11] Speaker 00:
And I want to compare the affidavits that are involved in them and the affidavits that are then involved here.

[00:01:17] Speaker 00:
So in Grand Care, it's a nursing home malpractice case.

[00:01:23] Speaker 00:
And they sue a nondiverse.

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local administrator of the nursing home.

[00:01:29] Speaker 00:
And the nondiverse administrator files an affidavit basically saying, I've never treated this plaintiff.

[00:01:34] Speaker 00:
I don't treat plaintiffs.

[00:01:37] Speaker 00:
I've never caused any of the issues.

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I never caused any of the plaintiff's injuries.

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I don't know anything about the allegations in the complaint.

[00:01:44] Speaker 00:
So it is a straight denial of, and it's a non-equivocal denial, of the claims that were made in the complaint.

[00:01:53] Speaker 00:
And the court in grand care,

[00:01:55] Speaker 00:
held that that affidavit was not sufficient.

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So the holding is a denial.

[00:02:01] Speaker 00:
Even a sworn denial of the allegations does not prove their falsity.

[00:02:04] Speaker 00:
And that's because of the really high standard that you have for fraudulent jointer.

[00:02:09] Speaker 03:
So if this case were to proceed in the state court, what sort of evidence would you present to make out your claim against Ms.

[00:02:20] Speaker 03:
Humm?

[00:02:22] Speaker 00:
So I think there's three

[00:02:25] Speaker 00:
three pieces of evidence that are at issue here.

[00:02:29] Speaker 00:
Number one, we have the recollection of the people who are in the office, right?

[00:02:34] Speaker 03:
So... Well, but it wasn't clear to me that we did have any such recollection.

[00:02:38] Speaker 03:
I mean, he knows that a... I guess it was a... He does say that it was a woman who came, but he doesn't... Yeah, and he believes her name is Leland Holm.

[00:02:49] Speaker 01:
But did he recall that from having interacted with her, what the name was?

[00:02:55] Speaker 00:
So he went to his emails to try to refresh his recollection about what that was.

[00:03:00] Speaker 00:
He saw an email from her.

[00:03:02] Speaker 01:
But that was after that, correct?

[00:03:04] Speaker 00:
Yeah.

[00:03:04] Speaker 00:
And he believes that it's her.

[00:03:06] Speaker 03:
But ultimately, he doesn't put it in terms of refresh recollection.

[00:03:12] Speaker 03:
He says, I looked at the email.

[00:03:13] Speaker 03:
I saw the name.

[00:03:14] Speaker 03:
And so from that, I inferred that it must be her.

[00:03:17] Speaker 03:
So I don't read that.

[00:03:20] Speaker 03:
his declaration as making any claim about his own observations of her.

[00:03:26] Speaker 00:
So ultimately, I mean, here's an easy way we can prove the issue in state court.

[00:03:32] Speaker 00:
He's seen her, obviously.

[00:03:34] Speaker 00:
She gave him eyedrops that he put in his eye.

[00:03:36] Speaker 00:
So we can depose Leland Ahm or just get a picture of her and say, is this the same person, right?

[00:03:43] Speaker 00:
And then that's going to be conclusive proof.

[00:03:45] Speaker 00:
But we're at a very early stage right now.

[00:03:47] Speaker 00:
And what you see from both affidavits

[00:03:49] Speaker 00:
Leland Homme's affidavit doesn't say, I've never talked to this person.

[00:03:52] Speaker 00:
It says, I don't recall talking to this person.

[00:03:55] Speaker 00:
I don't have a record of talking to this person.

[00:03:57] Speaker 00:
But that's not the same thing as saying, I know that I didn't talk to him.

[00:04:02] Speaker 03:
And at this stage, have you had any opportunity for discovery at this point?

[00:04:06] Speaker 00:
No, like barely any.

[00:04:07] Speaker 00:
So we actually, there was a fight in the

[00:04:10] Speaker 00:
in the district court over basically we wanted the business record that the Leland Haum affidavit is based on because nobody has seen these records other than her saying I looked at my own records and this is what they say.

[00:04:22] Speaker 00:
We haven't gotten a copy of it.

[00:04:23] Speaker 00:
The district court never saw a copy of it.

[00:04:25] Speaker 00:
So these records could be incomplete.

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They could be partial.

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They could be patchy.

[00:04:28] Speaker 00:
We have no idea.

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Her recollection could be incomplete.

[00:04:31] Speaker 00:
We have no idea.

[00:04:32] Speaker 00:
There's an easy way to resolve that at the district court.

[00:04:34] Speaker 00:
But the reason that these issues, that we don't get into merits issues as part of the jurisdictional analysis is because there's really not a way to get into that without then turning it into a whole merits issue.

[00:04:48] Speaker 00:
And the merits thing has just never been developed here.

[00:04:50] Speaker 00:
Ms.

[00:04:50] Speaker 00:
Thom has never been cross-examined.

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other than her attorneys who produced this affidavit.

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Nobody's spoken to her.

[00:04:57] Speaker 00:
So there just hasn't been an opportunity to actually get into this factual issue.

[00:05:01] Speaker 04:
And if you named a pseudonym as a defendant, that wouldn't be enough to defeat diversity jurisdiction.

[00:05:14] Speaker 04:
And it's not necessarily true that you'd get any jurisdictional discovery to sort that out.

[00:05:22] Speaker 04:
I guess that's one of the questions, did you consider just naming?

[00:05:24] Speaker 04:
Well, I don't know who this person is, but I'm going to name them as Jane Doe and go forward from there.

[00:05:31] Speaker 00:
Well, we named Leland Hom because we thought it was Leland Hom.

[00:05:34] Speaker 00:
And so we didn't think it was just a Jane Doe person.

[00:05:37] Speaker 00:
In fact, we were kind of surprised when the other side came back and there was all of a sudden a dispute over whether it had been her.

[00:05:43] Speaker 00:
And that was just something that we never got to actually get into in terms of the merits.

[00:05:49] Speaker 00:
I mean, there is a possibility.

[00:05:50] Speaker 00:
that Mr. Proietti has misrecalled or he's got the wrong name.

[00:05:57] Speaker 00:
It was a different sales representative.

[00:05:58] Speaker 00:
He's explicit in his affidavit that there was a sales representative who visited the office and gave him the eye drops that he put in his eye.

[00:06:05] Speaker 00:
But he might have the name wrong.

[00:06:07] Speaker 00:
That's one possibility.

[00:06:08] Speaker 00:
The other possibility is that Leland Hall might have an incomplete recollection, that her business records might be incomplete.

[00:06:14] Speaker 00:
Ultimately, the standard for

[00:06:20] Speaker 00:
fraudulent joiner is that they have to negate any possibility that The plaintiff could prevail.

[00:06:26] Speaker 00:
Well, this isn't negating any possibility because here are possibilities Leland homes in Recollection could be incomplete her business records could be incomplete.

[00:06:34] Speaker 00:
Those are possibilities They don't even require the court to assume that she's lying which is a possibility I'm not accusing her of doing that but like those are three different ways that this could be incorrect and the Affidavit that is here is much much weaker than the affidavit that was in grand care

[00:06:49] Speaker 01:
You have to even normally when a drug rep goes to Physicians office they'll leave a card or a number or something was there anything of that nature in this case there was no Nothing left with the office about her visit.

[00:07:04] Speaker 01:
She didn't leave a card.

[00:07:05] Speaker 00:
She didn't leave anything not that we could find I Think ultimately the easiest way to resolve the who done it question is to

[00:07:17] Speaker 00:
get either a picture or put Ms.

[00:07:19] Speaker 00:
Lillian on in a deposition and then he or Mr. Peretti in a deposition and show him a picture.

[00:07:27] Speaker 01:
It's really odd that he wasn't able to say an age range, a height range, a weight range, a body build range or something.

[00:07:39] Speaker 01:
Ethnicity, nothing was given regarding the description.

[00:07:44] Speaker 00:
Yeah, I can explain why we didn't include that.

[00:07:46] Speaker 00:
And part of that is because once they raised the issue of it's not Leland Holm, well, we don't actually have a photograph of her.

[00:07:53] Speaker 01:
Well, but if he saw her, wouldn't he have a recollection of how she looked, what color her hair was, or something that would bolster his claim that it was she?

[00:08:06] Speaker 00:
Absolutely.

[00:08:09] Speaker 00:
that's going to be something that would be easy to resolve in state court.

[00:08:12] Speaker 00:
The problem that we have here is that, like, let's say we put into the affidavit, you know, brown eyes, six foot tall or whatever, we don't have anything to tie that to in the complaint.

[00:08:25] Speaker 00:
So we don't have a way at this stage without any discovery to make that match Leland Haum, right?

[00:08:32] Speaker 01:
Well, if it's her, it wouldn't match her.

[00:08:35] Speaker 01:
So I don't understand why

[00:08:38] Speaker 01:
think that would not be a positive thing in your favor to have a description?

[00:08:45] Speaker 00:
Because there's nothing in the record that says, from their side, Leland Haum is six foot tall, right?

[00:08:51] Speaker 00:
And so if he says, I remember somebody who's six foot tall, and we include that in the affidavit, we don't have that yet to tie to her.

[00:08:59] Speaker 00:
We would need some amount of discovery, basically, to be able to resolve that question.

[00:09:04] Speaker 01:
Well, someone could say if you wait to get a picture of her, then that becomes your description.

[00:09:09] Speaker 01:
Whereas if you describe her before having seen the picture and then the picture matches, the credibility is much higher.

[00:09:17] Speaker 01:
That's all I'm saying.

[00:09:18] Speaker 00:
And I agree.

[00:09:19] Speaker 00:
And I mean, ultimately, I think in state court, we wouldn't have an objection to them deposing Mr. Proetti first.

[00:09:29] Speaker 00:
you know, lock down that thing.

[00:09:31] Speaker 00:
But at the end of the day, the standard that we're looking at is not a like, how do we balance the credibility of the different parties?

[00:09:37] Speaker 00:
It's a is there any possibility that the plaintiff could possibly win in state court standard?

[00:09:42] Speaker 01:
Well, that's I mean, it's the dearth of of the evidence that was presented.

[00:09:49] Speaker 01:
That's a real question.

[00:09:51] Speaker 00:
Yeah.

[00:09:51] Speaker 00:
And so I think what you have is at the beginning of the case, at the outset of the case,

[00:09:59] Speaker 00:
plaintiffs aren't always going to have a full set of evidence, right?

[00:10:02] Speaker 00:
That's what the purpose of discovery is.

[00:10:04] Speaker 00:
I mean, that's why in a criminal case, when a defendant gets ID'd by a witness, they put the defendant on the stand, and they ask the witness, or in the counsel table, and they ask the witness, do you recognize this person in the courtroom?

[00:10:18] Speaker 00:
The way we would do it in state court is to basically have him ID her as the person.

[00:10:26] Speaker 00:
order extracted a description of them, like you said, but there's ways to do that in state court that just... We have to look at the state of what we have now.

[00:10:34] Speaker 01:
and determine whether or not there's a possibility that you could prevail in state court.

[00:10:38] Speaker 01:
So looking at what we have now, that's a close question.

[00:10:42] Speaker 00:
So looking at what we have now, the question is, does what we have now exclude the possibility?

[00:10:49] Speaker 00:
Does it knock out the possibility of doing that?

[00:10:52] Speaker 00:
And so the less evidence you have at the early stage, the more opening possibilities there are,

[00:10:58] Speaker 00:
then the easier it is to fit through any reasonable possibility standard.

[00:11:04] Speaker 00:
And I believe I'm out of time.

[00:11:06] Speaker 00:
Oh, I think the clock's going to disappear.

[00:11:09] Speaker 04:
It's their burden, not yours, to establish fraudulent jointer by this high standard.

[00:11:15] Speaker 04:
Is that right?

[00:11:15] Speaker 00:
Yes, Your Honor.

[00:11:16] Speaker 04:
Could you speak just a little bit about the sanctions issue?

[00:11:19] Speaker 04:
I mean, even if we agree with you and vacate, how do you

[00:11:28] Speaker 04:
Explain I mean, you know the basically kind of stipulated to the the amount of sanctions.

[00:11:34] Speaker 04:
So I kind of put the defendants in the district court in a difficult position with the timing of this this reply brief and amendment

[00:11:45] Speaker 00:
Yeah, so I think we have two arguments on the sanctions issue.

[00:11:50] Speaker 00:
The first argument is just the wording of the standing order.

[00:11:55] Speaker 04:
Why isn't the district court in the best position to interpret its own standing orders, particularly when it already had consistent with the view?

[00:12:01] Speaker 00:
So I think that the district court's interpretation of the standing order still has to be consistent with English.

[00:12:07] Speaker 00:
And the phrase in lieu of has a definitive meaning.

[00:12:11] Speaker 00:
It means instead of.

[00:12:13] Speaker 00:
So the district court interpreted this to mean

[00:12:15] Speaker 00:
If you file an opposition, you are not allowed to file an amendment, but... No, without notice, right?

[00:12:23] Speaker 01:
It doesn't require notice?

[00:12:24] Speaker 00:
I believe the district court's interpretation was that once you do one, you can't do the other.

[00:12:29] Speaker 00:
So you have to pick.

[00:12:30] Speaker 04:
Well, given the timeline, I get that you might have to give notice the day before, but you've probably already chosen by that time whether you're going

[00:12:43] Speaker 04:
You can either timely file your reply under the rules, or if you're not going to timely file your reply, the assumption which you would confirm by a notice of intent is that you're going to amend.

[00:12:56] Speaker 04:
It seems like that's the way it's supposed to work, and you did neither.

[00:13:01] Speaker 00:
Rule 15 inherently anticipates that there will be some amount of briefing that the plaintiff will see before they amend, because it's 21 days after a 12-B motion is filed.

[00:13:12] Speaker 00:
So the question is, what the district court, by its interpretation, was trying to create is a situation where you don't have a reply.

[00:13:21] Speaker 00:
Essentially, that gets filed, and then an amendment happens.

[00:13:25] Speaker 00:
But the balance of how much information should the plaintiff get before they make a decision about whether to amend is ultimately set by the federal rules.

[00:13:35] Speaker 00:
So federal rule of civil procedure 15 selects essentially a balance there.

[00:13:41] Speaker 00:
They say the plaintiff has a right.

[00:13:43] Speaker 04:
You've got 21 days, I guess, to think it through, but you have all of the information in the opposing brief.

[00:13:51] Speaker 04:
or in the moving brief, I'm sorry, by 10 days before you have to make this decision, right?

[00:13:56] Speaker 04:
Nine or 10 days.

[00:13:57] Speaker 00:
I think there's additional information you can get from the reply in that the rules of civil procedure allow us to take that information into account in ultimately deciding whether or not to file the amended brief.

[00:14:08] Speaker 00:
And that's a right that we have, as this court held in Ramirez.

[00:14:14] Speaker 00:
It's a right.

[00:14:15] Speaker 00:
And so if it's a right, then rule

[00:14:17] Speaker 00:
The major premise of the argument, Rule 83, says that local rules and standing orders have a limited ability to restrict the rights of parties who aren't willfully acting in violation of them.

[00:14:30] Speaker 00:
And the minor premise then is that this is a right under Rule 15, as Ramirez says.

[00:14:37] Speaker 00:
And so the question is, can the district court, in effect, create a shorter period of time

[00:14:44] Speaker 00:
for the plaintiff to amend or to decide.

[00:14:47] Speaker 00:
I mean, ultimately what it comes down to is make the decision to amend, right?

[00:14:51] Speaker 00:
So under rule 15, we can make that decision up until day 21.

[00:14:55] Speaker 00:
Under the court's order, we wouldn't have as long to make the decision.

[00:15:00] Speaker 00:
And the court could easily, if they wanted to avoid a situation where work gets done, they could set the reply, the opposition date for a 12B motion to just 21 days out, and then you would never have this issue.

[00:15:15] Speaker 00:
Thank you.

[00:15:17] Speaker 01:
Thank you, Council.

[00:15:17] Speaker 01:
I'll give you a minute for rebuttal.

[00:15:46] Speaker 02:
Good morning, Your Honor, and may it please the court.

[00:15:49] Speaker 02:
Savannah Jensen on behalf of ABVI.

[00:15:53] Speaker 02:
I'd like to start where my opponent started, which is on the jurisdictional question and address the issues that he raised about the affidavit that we submitted on behalf of Ms.

[00:16:02] Speaker 02:
Helm.

[00:16:04] Speaker 02:
So the affidavit that was submitted in grand care is different from what Ms.

[00:16:09] Speaker 02:
Holmes submitted here.

[00:16:11] Speaker 02:
The affidavit that was submitted in grand care, the defendant denied responsibility for the policies, as my opponent said, for the policies that caused plaintiff to sustain her fall.

[00:16:24] Speaker 02:
And she pointed out that her role was simply administrative.

[00:16:27] Speaker 02:
But that was not enough.

[00:16:29] Speaker 02:
That denial was not enough to show that there was no possibility of recovery, because under California law, there was a possibility of recovery against somebody in the role of administrator, even if it hadn't been pled.

[00:16:43] Speaker 02:
Here the issue is different because miss home isn't saying Somebody in the role of sales representative who was there that day may not have liability She is saying I was not there that day.

[00:16:56] Speaker 02:
It wasn't me Here's the evidence showing that it wasn't me and that is different from grand care, right?

[00:17:02] Speaker 03:
But the state court doesn't have to believe that does it?

[00:17:09] Speaker 02:
But the issue is is

[00:17:11] Speaker 02:
whether she was fraudulently joined in the federal court.

[00:17:14] Speaker 03:
Right.

[00:17:14] Speaker 03:
No, I understand that.

[00:17:15] Speaker 03:
But that, in turn, depends on whether there's any possibility, which is a word that Grand Care italicized, whether there's any possibility that he could prevail against her in the state court.

[00:17:26] Speaker 03:
And what I'm saying is the fact that she submitted a declaration that says she didn't do it and she wasn't there does not mean that there's no possibility that he could prevail against her in state court.

[00:17:39] Speaker 02:
I think it does mean that, Your Honor.

[00:17:41] Speaker 02:
She doesn't just say, as my opponent represented, that she has no recollection.

[00:17:46] Speaker 02:
She says she had no recollection of visiting plaintiff's office.

[00:17:53] Speaker 02:
And then she goes on to say, I have never met Perry Priwet, Dr. Gary Rieger, or Dr. Elizabeth McMahome, which were the other doctors that existed there.

[00:18:04] Speaker 02:
She confirms that she had met one of the doctors in that office, but in a different location.

[00:18:09] Speaker 03:
I know what she says, but your position, I think, requires us to believe that if this were to go to state court, and there were an opportunity for discovery, and she could be deposed, and that after all of that, there is no possibility that the state court could do anything other than say, yes, we agree with her.

[00:18:32] Speaker 03:
Is that your view?

[00:18:33] Speaker 02:
So the federal court is standing in and predicting what the state court might do.

[00:18:37] Speaker 02:
And the federal court is allowed to consider evidence that's submitted by the defendant.

[00:18:42] Speaker 02:
And here there's no reason to doubt Ms.

[00:18:44] Speaker 02:
Holmes' credibility or to doubt her testimony.

[00:18:45] Speaker 04:
But I guess there's no reason to doubt.

[00:18:47] Speaker 04:
I mean, we've got what, I mean, simplified as basically a swearing contest between two declarants.

[00:18:55] Speaker 04:
And there's a little other evidence there.

[00:18:58] Speaker 04:
But that might make it close on summary judgment.

[00:19:01] Speaker 04:
It certainly wouldn't cut it at a motion to dismiss.

[00:19:05] Speaker 04:
And fraudulent joiner is an impossibility test.

[00:19:09] Speaker 04:
It's not a plausibility test.

[00:19:11] Speaker 04:
It's not a genuine dispute test.

[00:19:14] Speaker 04:
Why isn't that enough to get it over the line?

[00:19:16] Speaker 04:
Particularly, I guess, under that standard, the email, which is

[00:19:24] Speaker 04:
Enigmatic, we might say, but it's within a month of the alleged visit.

[00:19:32] Speaker 04:
And it's not an introductory email.

[00:19:34] Speaker 04:
It's not anything else.

[00:19:36] Speaker 04:
It doesn't rule out the possibility that there hasn't been prior contact.

[00:19:43] Speaker 04:
So under this really, really low bar for creating the possibility of a court ruling in his favor, why not?

[00:19:54] Speaker 02:
So I think, as the district court found, there is no dispute of fact that was created by plaintiff's declaration.

[00:20:01] Speaker 02:
He admits that the only reason he inferred that it was Ms.

[00:20:05] Speaker 02:
Holm who visited him was because of that email a month later.

[00:20:09] Speaker 02:
But that's not a dispute of fact.

[00:20:11] Speaker 02:
That's consistent with her declaration that her first sales call was also in January of 2022.

[00:20:18] Speaker 02:
Prior to that, she wasn't taking sales calls.

[00:20:20] Speaker 02:
She knew she had been hired in July.

[00:20:23] Speaker 02:
Her training had completed in October.

[00:20:25] Speaker 04:
And so... That all sounds like a great to put into a statement of undisputed facts at summary judgment, but isn't the standard much, much lower under grand care?

[00:20:39] Speaker 04:
Impossible that he could prevail?

[00:20:42] Speaker 02:
Here I think it is impossible that he could prevail if you look at the evidence that's been submitted Unless you're saying that the only evidence that the that the evidence that you have to account for Takes into account the possibility of perjury at this stage Let me ask you this I have a question about this.

[00:21:03] Speaker 01:
So what do we look at when we're determining the possibility of

[00:21:09] Speaker 01:
him prevailing in the state trial, do we look into the future as to what the depositions could show, what the summary judgment motion would look like, or do we look at what we have at this present time and try to predict?

[00:21:23] Speaker 01:
That's important to me, whether we consider what was before the court to determine the possibility or whether we look and see based on future discovery or future events.

[00:21:37] Speaker 01:
What do we look at to determine the possibility?

[00:21:41] Speaker 02:
Right, you look at what has been submitted in response to this fraudulent join during inquiry.

[00:21:45] Speaker 01:
And what case says that?

[00:21:47] Speaker 02:
I think grand care stands for that proposition.

[00:21:49] Speaker 02:
I think a lot of the cases that we cite, including some of the Fifth Circuit jurisprudence talking about the summary inquiry that the federal court conducts at the fraudulent Joinder stage supports that.

[00:22:01] Speaker 02:
I think this court's jurisprudence on when jurisdictional discovery is appropriate supports that.

[00:22:08] Speaker 02:
For that, I would point to, since my opponent raised jurisdictional discovery, which wasn't briefed in this case,

[00:22:15] Speaker 02:
So so the district court in this case is there any request for jurisdictional discovery and not in the lower court?

[00:22:22] Speaker 02:
The the district I'm sorry there I Believe in plaintiffs opposition brief he took the position that he should have been allowed Discovery to identify who if not miss home and the district court said that plaintiff wasn't entitled to that discovery He made a specific finding in his order and he said

[00:22:42] Speaker 02:
Plaintiff cites no authority suggesting that defendants were obliged to provide discovery at this stage.

[00:22:48] Speaker 02:
Further, it appears that plaintiff is partly responsible for this lack of discovery as defendants offered to provide discovery subject to a protective order that plaintiff refused.

[00:22:56] Speaker 04:
What was that offer?

[00:22:59] Speaker 02:
We offered to provide the records that were in Miss Holmes declaration.

[00:23:03] Speaker 02:
And then on the jurisdictional issue question, the Ninth Circuit recently affirmed denial of jurisdictional discovery where discovery would have been a phishing expedition based on theories which defendants have specifically denied via sworn statements.

[00:23:19] Speaker 02:
Fair allegations in the face of specific denials are insufficient reasons for a court to grant jurisdictional discovery.

[00:23:26] Speaker 02:
That case, again, wasn't in our briefing because this issue didn't come up in the appellate brief.

[00:23:31] Speaker 02:
But it's Yamashita versus LG Chemical Limited, 62F4496.

[00:23:39] Speaker 02:
And the quote was from page 507.

[00:23:45] Speaker 04:
How much of the fraudulent joiner inquiry under grand carry do you understand to involve legal as opposed to factual questions when we're saying it's impossible?

[00:23:55] Speaker 04:
Or do you rest at all on what claims may actually be available against Ms.

[00:24:00] Speaker 04:
Hong?

[00:24:02] Speaker 02:
So I think the court's analysis in grand care was primarily legal.

[00:24:06] Speaker 02:
I think the first step was looking at the complaint and saying that the court couldn't conclude based on the allegations that had been pled thus far that there was no possibility under state law that the administrator would not be liable because there were provisions of law that might hold somebody in the administrator's role liable.

[00:24:25] Speaker 02:
But she didn't have a factual dispute about whether she was, in fact, the administrator that had been named.

[00:24:33] Speaker 02:
She conceded that she was the administrator for the healthcare facility that was at issue.

[00:24:38] Speaker 02:
She was the right party that plaintiff had intended to name.

[00:24:42] Speaker 02:
And then her declaration, which was considered in that case, didn't say anything that disputed that kind of theory.

[00:24:52] Speaker 02:
And so the Ninth Circuit found

[00:24:54] Speaker 02:
Hadn't raised any issue as to whether she could be liable or that there was any possibility that she could be liable And just to clarify you I take it you don't dispute that that if in fact ms.

[00:25:06] Speaker 03:
Hom had Been there that day and given him the eye drops that she She could be subject as a legal matter.

[00:25:14] Speaker 03:
She could be subject to a negligence claim under state law Is that right?

[00:25:18] Speaker 02:
I don't know that I would concede that at this point, but that's not a basis that you haven't argued that she's Correct.

[00:25:25] Speaker 02:
It's not a basis that we're saying the fraudulent joiner inquiry would be correct If there aren't any further questions on that issue I can move to touch on the sanctions issue

[00:25:41] Speaker 02:
So we believe that the sanctions were appropriate here for exactly the reasons that were identified by your honor Here the district court reasonably interpreted his standing order consistent with a prior decision that he had issued the in lieu of Language in that standing order.

[00:25:59] Speaker 02:
It just means that that's the typical procedure typically when you respond to a motion to dismiss you are

[00:26:05] Speaker 02:
Either file an opposition brief or in lieu of filing an opposition brief you file an amended complaint Again, if plaintiff had been confused about that language He could have figured out what the district court's interpretation of it was shouldn't plaintiff have the opportunity to see the Defendant's last word in reply before making the decision of whether to amend Which is a right under rule 15

[00:26:32] Speaker 02:
So he did he had the right to amend and he did amend the issue is whether he followed the court's standing order and amending and here he did not.

[00:26:42] Speaker 02:
And there's also the separate issue in this case that plaintiff had already acknowledged that he had been planning an amendment since the party submitted an original joint stipulation asking for.

[00:26:51] Speaker 02:
Extended time for defendant to file its initial motion so here It's just implausible that plaintiff waited didn't realize he was going to amend until he saw a reply brief when he had the same Arguments that we had made in our original motion to dismiss I don't think there's anything in our reply.

[00:27:09] Speaker 04:
I mean don't don't we May we have to answer that that question?

[00:27:15] Speaker 04:
More generally, though, in order to determine whether there's a conflict between the operation of the two, the standing order.

[00:27:22] Speaker 04:
I mean, the question is whether the standing order and operation conflicts with Rule 15, not the particular question of this case.

[00:27:30] Speaker 04:
At least that's one of them.

[00:27:32] Speaker 02:
So the district court designed his standing order to be consistent with Rule 15.

[00:27:36] Speaker 02:
Plaintiff still has the entire 21-day period to amend.

[00:27:41] Speaker 02:
It's just he shouldn't have filed an opposition brief if he was intending to amend.

[00:27:45] Speaker 03:
I mean I understand that the district court had already interpreted this, but I'm struggling with How to read the words of the order and maybe you can help me that so where a defendant has filed a rule 12b6 motion Okay, that happened here And in lieu of filing an opposition if the plaintiff intends to file an amended complaint then Then there's the requirement

[00:28:14] Speaker 03:
On its face that seems like it applies in the situation where the plaintiff intends to file an amended complaint, but not an opposition it doesn't I mean I I don't know how we give effect to the phrase in lieu of without concluding that This just doesn't apply if you're going to file both an opposition and an amended complaint So how do we how do we get that out of these words?

[00:28:38] Speaker ?:
I?

[00:28:38] Speaker 02:
It's it's just not typical practice to file both and so I think what the district court was getting at is You file your opposition by the date on which it's due which plaintiff did not do here and if you're not going to file an opposition then you either need to file your amended complaint by that date or file notice saying that you're going to take the remaining the remainder of your rule 15 period I

[00:29:04] Speaker 02:
Think it's consistent with how practice generally operates on that reading doesn't even that require a Plaintiff to commit to amending prior to what rule 15 requires But I think what you mentioned in your question to my opponent is exactly right If you have to file an opposition by the deadline set forth in the local rules by the time you're filing your opposition You presumably know if you're gonna oppose versus amend.

[00:29:29] Speaker 04:
Yeah, although this is a day before so it doesn't quite work and

[00:29:33] Speaker 04:
It is in terms of the reading it prior to the date on which the opposition is due.

[00:29:40] Speaker 04:
So I get it might take some lawyers more than a day to draft a brief in opposition.

[00:29:46] Speaker 04:
But that doesn't quite align with that reading, I guess, is the hiccup there.

[00:29:54] Speaker 02:
So in this case, plaintiff didn't do either.

[00:29:57] Speaker 02:
He didn't file a timely opposition brief.

[00:30:00] Speaker 02:
He also didn't file an amendment by the day before or the day of.

[00:30:05] Speaker 02:
All of these pieces happened after the deadline.

[00:30:08] Speaker 02:
So even for that reason, I think it was appropriate to still.

[00:30:12] Speaker 02:
find that he had violated the district court standing order and award a reasonable sanction here.

[00:30:17] Speaker 02:
The district court didn't obviously award terminating sanctions and the district court allowed the amendment and we litigated the rest of the case based on the amended complaint.

[00:30:28] Speaker 02:
So he didn't lose any right that he had.

[00:30:31] Speaker 02:
He was just asked to compensate defendants for the time spent in responding to his violation of the standing order.

[00:30:49] Speaker 02:
All right, if there are no further questions, I think my time is up.

[00:30:52] Speaker 02:
Thank you all.

[00:30:56] Speaker 01:
One minute.

[00:31:04] Speaker 00:
I'd like to just make two very brief points.

[00:31:07] Speaker 00:
Number one, there was a really great question, which was, what do we look at?

[00:31:12] Speaker 00:
Do we look at what has been on file now, or do we look at what might be on file in the state court?

[00:31:20] Speaker 00:
Grandview answers that question.

[00:31:22] Speaker 00:
In Grandview, there was an affidavit from the defendant.

[00:31:26] Speaker 01:
But give me the language, the holding in grand care, the language from the court that says we look down the road at everything that might possibly be admitted.

[00:31:36] Speaker 00:
So it's the operation of what they did.

[00:31:39] Speaker 00:
It's at least by implication.

[00:31:40] Speaker 01:
I don't think there's a specific.

[00:31:41] Speaker 01:
OK.

[00:31:42] Speaker 01:
I understand your argument.

[00:31:43] Speaker 01:
I was looking for some specific language in grand care that tells us what we looked at.

[00:31:48] Speaker 01:
what we look at, and in grand care, they looked specifically at the documents that were presented to the district court.

[00:31:56] Speaker 01:
They didn't go into what could be introduced later during discovery.

[00:32:02] Speaker 00:
There was no plaintiff's affidavit, though.

[00:32:04] Speaker 00:
And so if they were only looking at the defendant's affidavit, the entire universe would have been that affidavit, right?

[00:32:11] Speaker 01:
And so it's... Not necessarily.

[00:32:13] Speaker 01:
I mean, they were looking at it compared to the complaint.

[00:32:18] Speaker 01:
So that was not the entire universe.

[00:32:20] Speaker 01:
They measured that against the complaint.

[00:32:23] Speaker 01:
Yes, sure.

[00:32:24] Speaker 00:
That's correct.

[00:32:25] Speaker 00:
And the second is, with respect to the protective order, we had a disagreement on the form of the protective order.

[00:32:30] Speaker 00:
We offered any standard protective order.

[00:32:32] Speaker 00:
They wanted a protective order that wouldn't have allowed us to use the documents they disclosed, which obviously would defeat the point of having the documents.

[00:32:41] Speaker 01:
All right.

[00:32:41] Speaker 01:
Thank you, counsel.

[00:32:43] Speaker 01:
Thank you to both counsel.

[00:32:44] Speaker 01:
The case just argued is submitted for a decision by the court.