Legal Case Summary

And Mr. Hartman and Ms. Nichols, whenever you're ready. Thank you very much, Eric. May I please your court? I'm Carl Hartman representing the appellate C. Cory Renaissance Group LLP. Do you wish to reserve any time for rebuttal? Yes, Your Honor. May I reserve a few minutes please? That's fine. At the outset, I'm going to ask both counsel. If you would address, there is a conceivable tension between the purpose of this statute, which is to have the federal courts being able to be involved with certain types of cases, but not in state cases, as you know, the in-state exception. And one could make an argument on that the island of St. Croix is about as in-state as it could conceivably get versus the text of the statute, which talks about accident or occurrence. And you have two items here. You've got the box item or the red dust red mud. And you also have the friable asbestos. And one could argue that it's hard to say that textually that those are a single accident or occurrence, perhaps you can't make that argument. That's where we see the tension here if you could address that at some point

. If I understand the court, the question is whether the statute has some sort of hidden subtext, which requires a deference beyond what's in the plain language to localize what opposing counsel's lawful. And just to clarify, the plain language is eventual occurrence, right? Yeah, of course, I'm sorry, I said accident, excuse me, it's the better occurrence. Yes. Well, Your Honor, I believe that to get into the entire issue of the intent of CAFA and what it really does, it doesn't mean beyond what's actually on the face of the language is, as Judge Smith said, and Morganby gave a tricky maneuver. Because there were so many intents going on. Well, it was really tricky there because they didn't say what they meant, but that issue's been taken care of. I think so. In the wine Morgan versus. I wouldn't mind if we went a little further in taking care of the issue of what the legislative history supposedly says with regard to this. I believe that the idea that there's some sort of special operational interest beyond the language isn't upheld anywhere in the history of the statute. All right, so you're putting all of your eggs in the event basket. Is that right? Or do I read you is putting just about all of your eggs in the article and basket? No, Your Honor, I'd say that I'm really putting all my eggs in the plaintiffs have the burdened and they haven't met the burden basket. I don't think the case really gets too much beyond that because there's no record here that suggests anything that would prove either event or occurrence. Right, there's just they have the burden they made no record with regard to the burden. Well, I mean, this is statutory interpretation. That's right, Your Honor

. And if the statutory interpretation, you got to help us as much as she does. Okay, so so back at the end event issue, the only thing that suggests legislative history here that's beyond what's absolutely apparent. Are you going to legislative history now and just jumping over the textual arguments to be made? Well, I thought the judge embryo. I'm sorry, you're still addressing the judge. Yeah, I'm sorry. The question that was asked was whether I thought there was some sort of language here that restricted the first exception to Kaffa Mass actions down below what's actually in the language answers. From your perspective, it is clear that the purpose of the statute is to try to deal with matters that go across state lines. And that cuts against the plaintiffs position. But you have a statute which has been oft criticized that has a provision that says that it does not apply or does not include any civil action in which quote all the claims in the action arise from an event or occurrence in the state in which the action was filed. That's correct. So the question here is, is an event or occurrence limited to like a three mile island type of thing? Can it exist if it's continuous? Can it still be an event or occurrence? I mean, what could argue that the Civil War, I think something was in event with, you know, with a whole lot of different occurrences perhaps. But we're trying to make some sense out of the language here and we need your help. Okay. I would say this about it. You're in the 2005, what I really want to do is answer that by giving some of the legislative history if I'm right now. Why are you turning to the legislative history without addressing the text of the statute? Well, the text of the statute is both, we both asked you about an event or occurrence

. What does event mean? I mean, shouldn't the starting point be that inquiry because that's what the district court in his opinion defined? I agree, Your Honor. I just, I don't think the statute could be any clearer in terms of what an event means. Every single, you think it is clear. Every single case that is interpreted this statute is held that an event means a single thing. Unless it has environmental tort somewhere near it. All of the other cases call an event an event. It defines it as singular. It defines it as not continuing. The only time you get into this whole idea of a continuing toward in the Restatement 161 is when you get near this environmental tort issue. There's nothing in the text of the statute that sets that environmental tort. Absolutely. That can be found somewhere in the legislative history, but not in the text of the statute. That's correct. Now, but what I want to know is if we do focus on the text, certainly in common violence, and that's what we're required to look to and to reference, isn't the term event frequently used to describe events that are as not as temporarily limited as you're suggesting. I asked a lot of it could go online and reference the event. Recently, news stories, March Madness is somewhere referred to as an event

. It's not a discrete game or even a, even a half of a game. Have that George Snell lost? I didn't care. I picked the wrong game. The district court used the example of the Civil War. That's right, but it rather long continued. It robs the exception of any meaning, Your Honor. How so? Because an event becomes... It's still definable, isn't it? Not really. In one case... You don't think the Civil War is..

. You rather I referred to it as the recent unpleasantness perhaps? No, but being able to call it... As I said in my brief, the Cretaceous Era is also called an event. And so everything that happened after the Cretaceous Era would be... The finalism. A single event. Isn't your definition really limiting? Not at all, Your Honor. Limiting how? Well, in that... It's hardly going to catch anything, right? If you're talking about a very singular one-time deal. That's the way you'd like to.

.. I mean, in this case, is it a breeze that came by and blue red mud? Is that what the event was? Well, I will say this. I know that you've noticed a new event. I know that you want to stick to the pure wording, but I will tell you that in 2005, when this was passed, the minority attempted to have the statute amended to add, particularly to add environment, continuing environmental thoughts. And when they didn't put it in, the minority railed mightily at 89 of the Senate report, saying that failing to carve out an exception to S5 to protect the environment, for just what Your Honor is discussing. But that's sort of like... If legislative history is once removed, what you're talking about is at least two or three times removed. And the thing that you want to talk about, legislative history, although it supports what you say, the trouble is this legislative history came out as legislative history sometimes does. Good two weeks after the vote was taken. I agree. And so the argument then becomes, it was someone who's skeptical, is that it was put together to keep at least one person, usually the chair of a committee, happy with regard to what the interpretation would be, but it's not even necessarily the committee's view, and certainly not the Congress's view. So what's beaten to us as federal judges is that you look to the text first, and you exhaust everything you can with regard to the text before you even begin to consider whether you should look at something else. I couldn't agree more, Your Honor. And as I say, every court that has ever examined the concept of event, if you leave out this subtext about environmental courts, is always that event is singular

. The definition I gave you, I know that your law court went on the internet, but the definition I gave you, the quoted from an asbestos case, was that an event was a singular thing, something that happens at a discrete point in time. Wouldn't doesn't Congress now have to define more narrowly than a term event, a temporally delimited period of time? Well, they did, Your Honor. They said an event, an event, an means one event. Or a court civil war too. Well, I understand that, Your Honor, but that brings us back to the cretaceous problem, which is that if you define a event as being a broad thing, then this exception has no meaning. It simply disappears into the, I mean, the Ellen case that we discussed in green. Let's go back and bring you. The J. Ambrose question at the start. And in fact, isn't there really more than just policy behind the point that the statute contemplates that a state, in this case a territory, may be more suited for the action, isn't that what, and specifically what I'm looking at right now, is 1132, D11, B, small, I, large, Romanum, or one. It's so awkward to have a new action. But, I mean, it doesn't, that clearly, it doesn't, the mass action exclusion clearly contemplates that here we have a preference for to have an recurrence in the state in which the action was filed and that allegedly resulted in injuries in that state. We're in states contiguous to that state. Absolutely, Your Honor, the point though is that the phrase in a state, and that where the injuries that occur in a state, defines the stateness of it, defines that state interest. If progress had simply wanted to limit things down to things that occurred in a state, why put an event or occurrence? Why not put a tort? Does that argument help you or hurt you? No, that helps me a lot. Because if they hadn't specified an event or occurrence, in other words, you hit two different groups of people fighting with each other

. One group wanted to open up the state courts to environmental torts, another group wanted to close it down. And so, they came to a compromise. What was the compromise? We'll limit things with regard to things that happened within a state in which you have a thefts in a state. But the other side said, yeah, we don't want every single thing going in there. In the 2003 legislative history, and I know you don't want to hear the legislative history, it specifically said singular event, nothing more. When this thing got moved, and this is after the vote, when it got moved to the Senate in 2005, when it got moved to that committee, after the vote was taken, they changed that express language. And when they changed that express language, the minority who tried to get the single event thing taken out went crazy. So, everybody knew what the rules were. The rules were that on the one hand you have a state, an effects in a state, but the other side got something bad. What did they get back? They got back, this was limited to legislative horse trading is not what we're about. I thought we started out talking about plain language. Are you legislative history more than you have. When you get back up on rebuttal, the question that I'd like you to deal with first is assuming that you could have a continuing event or occurrence, how do you deal with the fact that you have two different emissions, one of the box site, and the one of the pryabal asbestos, and how those separate emissions can constitute an event or a return. Thank you. Thank you. Miss Nichols? Good afternoon and may it please the court

. The section that we're talking about. Better now to your name for the record. Leah Nichols. Thank you. The text we're talking about, we are talking about an event or occurrence that involves a local events and local injuries to the plaintiffs. Now the statute itself doesn't define the words event and it doesn't define the word occurrence. But as we, as has already been discussed today, the purpose of this section of D11 B21 is about keeping local controversies and local court. And so we have a, what I think is a fairly broad phrase, this event or occurrence. And if you were writing this opinion, when does the talks expel, go from being a single event to a multiple event? It goes to being multiple events, Your Honor, when there's some sort of intervening break in the chain of causation, some sort of intervening event that dramatically changes the landscape. Was there an intervening event here? No, Your Honor, not from the time that SCRG purchased the property and continued to hold it and continues to own it through the time of the complaint. What, you've led a series of discrete types of activity over a period of time. Have you not? We have not your honor. If you look at the complaint, if you look at paragraph 471, which is on page 51 of the joint appendix. This is in paragraph 471 near the bottom. It says this dispersion of toxic materials occurred continuously from the same source and they did not obey it. And so that in paragraph 471 alleges a continuous occurrence as well

. So you described to the witch, Bartle described as a continuing tort theory. Right, and I think that's reasonable. I think it's reasonable to look at continuing torts in this context, and to look at how we figure out what's one tort, how that's different from another tort. Now looking at how to define these terms event in occurrence, there's not a lot of piece law that defines the word event. But there is a large body. There's no federal appellate authorities. Right, there's only, there's one federal appellate authority defining or dealing with this. In the vodka case? Yeah, the Novodak case out of the Ninth Circuit is the only court of appeal, federal court of appeal's opinion that deals with this section. Right, and the facts there are pretty different from the facts here. And so it's not really helpful, I think, one way or the other. But the word occurrence, there's actually quite well developed body of law with regard to the word occurrence and the insurance liability context. And there, the word occurrence is consistently unanimously defined is something that can be ongoing or recurring or repeated over a period of time. And we've cited to a number of those cases from this court that deal with it in that context. And in fact, if you look up occurrence in black's law dictionary, it describes it as quote something that happens or takes place specifically an accident event or continuing condition that results in personal injury or property damage. And what we've alleged here is a continuing condition that's been going on from the time that SCRG purchased the property until the time, you know, until through the present and certainly until the time that the complaint was filed. At the beginning of the argument, Jan Jambore, you expressed a concern about both the emissions of the red dust, which is the byproduct, the industrial byproduct, which in this case is actually mixed with a lot of other material. And that's what it entails as well as the estestis. We urge or we contend that those that's just a single event or occurrence. And the reason why in this case is because it's not as if SCRG is engaging in two different processes or two different manufacturing processes that resulted in two different emissions. They bought the property at the time that they bought the property was no longer being used as a refinery. It was just a, you know, unused refinery. And it didn't do anything to abate the emissions coming out of that that property. And because of the nature of the claims here, although there's more than one material issue, they come out of the same occurrence using that same definition that's out of that well established body. But SCRG has argued as I understand it that these events, plural included erosion of red mud from the piles, disbursement and the wind of the red dust, go you to remove and immediate asbestos and proper storage of red dust, cold dust and other particulates. And the action to increase the disbursement of the toxic substance. Here, though, what it all comes down to, what all of that comes down to your honor is that SCRG failed to prevent these materials from leaving the property, from being disperse from the property. They've done nothing. And it's hard to see how the fact that they've, how to sensibly break that down into one or more event or more event or occurrence. So you could say, well, they, you know, they failed to deal with the erosion, but they also failed to deal with these mudslides. And it's sort of, and once you get into that, it's hard to draw the line there as to which is an event or occurrence. It's just not sensible. And so here, because the underlying conduct at issue is really, they're failure to do anything with anything on this site that that's a single event or occurrence as alleged in the company

. And that's what it entails as well as the estestis. We urge or we contend that those that's just a single event or occurrence. And the reason why in this case is because it's not as if SCRG is engaging in two different processes or two different manufacturing processes that resulted in two different emissions. They bought the property at the time that they bought the property was no longer being used as a refinery. It was just a, you know, unused refinery. And it didn't do anything to abate the emissions coming out of that that property. And because of the nature of the claims here, although there's more than one material issue, they come out of the same occurrence using that same definition that's out of that well established body. But SCRG has argued as I understand it that these events, plural included erosion of red mud from the piles, disbursement and the wind of the red dust, go you to remove and immediate asbestos and proper storage of red dust, cold dust and other particulates. And the action to increase the disbursement of the toxic substance. Here, though, what it all comes down to, what all of that comes down to your honor is that SCRG failed to prevent these materials from leaving the property, from being disperse from the property. They've done nothing. And it's hard to see how the fact that they've, how to sensibly break that down into one or more event or more event or occurrence. So you could say, well, they, you know, they failed to deal with the erosion, but they also failed to deal with these mudslides. And it's sort of, and once you get into that, it's hard to draw the line there as to which is an event or occurrence. It's just not sensible. And so here, because the underlying conduct at issue is really, they're failure to do anything with anything on this site that that's a single event or occurrence as alleged in the company. The district court, I think, found that Hurricane Maryland, which struck in 1995, began the now, I guess, continuous dispersion of the red mud of which you complain. I mean, would be fair to say that Hurricane Maryland was an event or occurrence for purposes of this session. And if an, if an hurricane had struck and caused significant changes to, to the location. So for example, tore up a building or something like that or changed the landscape and caused erosion. Then yes, that could be an event or occurrence. Can we, can we decide this issue on the plain text of the statue? Yes, Your Honor. Absolutely. So that we would not have to resort to that exposed effort by the Senate. Exactly, Your Honor. Absolutely. At least somebody in the Senate. Yes. Exactly. Maybe a staffer. Yes. This case can absolutely be decided on the plain text of the statute

. The district court, I think, found that Hurricane Maryland, which struck in 1995, began the now, I guess, continuous dispersion of the red mud of which you complain. I mean, would be fair to say that Hurricane Maryland was an event or occurrence for purposes of this session. And if an, if an hurricane had struck and caused significant changes to, to the location. So for example, tore up a building or something like that or changed the landscape and caused erosion. Then yes, that could be an event or occurrence. Can we, can we decide this issue on the plain text of the statue? Yes, Your Honor. Absolutely. So that we would not have to resort to that exposed effort by the Senate. Exactly, Your Honor. Absolutely. At least somebody in the Senate. Yes. Exactly. Maybe a staffer. Yes. This case can absolutely be decided on the plain text of the statute. And again, it's already noted it makes sense to look at occurrence as it's used in these insurance liability context. I mean, those, those policies are often written to deal with, you know, suits for toxic torts. And so I think that's an appropriate place to look. Would you agree that it's, at this point, it's your burden to prove the event exception applies? No, Your Honor. Are we dispute that it's an exception versus a versus just part of the definition of a removable mass action? But that aside, it is here we're looking at the complaint and does do the allegations in the complaint constitute a local event or occurrence. And so here, as far as who ultimately bears the burden as Judge Amber earlier said, it's really a such to reinterpretation. The question I asked your opponent to consider the last of you, how do you reconsider the emission of two different types of toxic chemicals to be a single or event or occurrence under the language of Kaffa? In this case, Your Honor, the allegation comes down to SCRG's failure to do anything to prevent particles from this same site from going elsewhere. When that bought the site, it was defunct. It was not an operational refinery. It's not as if it had one process over in, you know, part area one doing one thing and another process and in part B or part two, where the emissions and the facts are going to be very different. But at the very least aren't there two different occurrences here, one box site, one asbestos? No, Your Honor. It's one occurrence because it's all coming out of their failure to do anything with this site. They purchased the site, it had all of these things were already being emitted from the site at the time of the purchase and they did nothing about any of them. In the process of what went on at the site, did the, you're saying that the, what was emitted was always at the same end. So, the instant box site and asbestos or the, for the, for the, yes, since 2002, both of them were being emitted to our, to our knowledge. Yes, now it may be that, you know, the, you know, the merits haven't been determined yet, but to our knowledge and the allegations and the complaint are that for, I believe it says for at least 10 years asbestos, the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, to that is to serve low given and when they're But that is to serve low given to their, they have earned from the Maycan by these liability contracts

. And again, it's already noted it makes sense to look at occurrence as it's used in these insurance liability context. I mean, those, those policies are often written to deal with, you know, suits for toxic torts. And so I think that's an appropriate place to look. Would you agree that it's, at this point, it's your burden to prove the event exception applies? No, Your Honor. Are we dispute that it's an exception versus a versus just part of the definition of a removable mass action? But that aside, it is here we're looking at the complaint and does do the allegations in the complaint constitute a local event or occurrence. And so here, as far as who ultimately bears the burden as Judge Amber earlier said, it's really a such to reinterpretation. The question I asked your opponent to consider the last of you, how do you reconsider the emission of two different types of toxic chemicals to be a single or event or occurrence under the language of Kaffa? In this case, Your Honor, the allegation comes down to SCRG's failure to do anything to prevent particles from this same site from going elsewhere. When that bought the site, it was defunct. It was not an operational refinery. It's not as if it had one process over in, you know, part area one doing one thing and another process and in part B or part two, where the emissions and the facts are going to be very different. But at the very least aren't there two different occurrences here, one box site, one asbestos? No, Your Honor. It's one occurrence because it's all coming out of their failure to do anything with this site. They purchased the site, it had all of these things were already being emitted from the site at the time of the purchase and they did nothing about any of them. In the process of what went on at the site, did the, you're saying that the, what was emitted was always at the same end. So, the instant box site and asbestos or the, for the, for the, yes, since 2002, both of them were being emitted to our, to our knowledge. Yes, now it may be that, you know, the, you know, the merits haven't been determined yet, but to our knowledge and the allegations and the complaint are that for, I believe it says for at least 10 years asbestos, the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, to that is to serve low given and when they're But that is to serve low given to their, they have earned from the Maycan by these liability contracts. And so sometimes event, sometimes event, and I think the SCRG is pointed to one dictionary definition, for example, that defines a venn as a mortis grief, as something more discreet. But there's nothing, and they've, and SCRG has provided no example of a definition of occurrence. That's that narrow. And both sides of our view, this case, based on how the district court adjudicated it, which is defining and interpreting the term event, am I correct? Yes, the district court defined an interpreted event, but the statute does say event or occurrence. I know what statute says, but my point is in terms of arguments that we can and should consider, neither of you have argued that this is an occurrence under the statutory term as opposed to an event, have you? We certainly have argued that here, your honor, in the briefing, absolutely. That we have argued that it's an occurrence. So to the extent that these terms are somewhat our broad difficulty to find, it is important to keep in mind the purpose of CAFA, which CAFA has not won, but two provisions that aim to keep local controversies in local courts. All of the events here, all the relevant events occurred on the island. This is a case brought by local islanders for damages. I'll just talk about that about to the extent we can consider purpose, everything flows in your direction. There's no doubt about that. The hang up is the text of the statute. Certainly, your honor. The one that I quoted earlier and that the site was given by Judge Smith. Is there anything we can look to in this structure of the statute, aside from just the language of a vendor occurrence that would support your position? With regard to, I think there, yes, and that's that the, there are two provisions that keep local attempt to ensure to keep local events or occurrences in state court. There's the one that we've been talking about, and then there's also the D4 exception, which applies to both class actions and mass actions that says that we're a defendant, and two thirds of the plaintiffs are citizens of the same state that those cases should also be in state court

. And so sometimes event, sometimes event, and I think the SCRG is pointed to one dictionary definition, for example, that defines a venn as a mortis grief, as something more discreet. But there's nothing, and they've, and SCRG has provided no example of a definition of occurrence. That's that narrow. And both sides of our view, this case, based on how the district court adjudicated it, which is defining and interpreting the term event, am I correct? Yes, the district court defined an interpreted event, but the statute does say event or occurrence. I know what statute says, but my point is in terms of arguments that we can and should consider, neither of you have argued that this is an occurrence under the statutory term as opposed to an event, have you? We certainly have argued that here, your honor, in the briefing, absolutely. That we have argued that it's an occurrence. So to the extent that these terms are somewhat our broad difficulty to find, it is important to keep in mind the purpose of CAFA, which CAFA has not won, but two provisions that aim to keep local controversies in local courts. All of the events here, all the relevant events occurred on the island. This is a case brought by local islanders for damages. I'll just talk about that about to the extent we can consider purpose, everything flows in your direction. There's no doubt about that. The hang up is the text of the statute. Certainly, your honor. The one that I quoted earlier and that the site was given by Judge Smith. Is there anything we can look to in this structure of the statute, aside from just the language of a vendor occurrence that would support your position? With regard to, I think there, yes, and that's that the, there are two provisions that keep local attempt to ensure to keep local events or occurrences in state court. There's the one that we've been talking about, and then there's also the D4 exception, which applies to both class actions and mass actions that says that we're a defendant, and two thirds of the plaintiffs are citizens of the same state that those cases should also be in state court. And so to the extent that the rest of the statute has some weight or has some influence on how we define a vendor occurrence, it makes sense to think of things as, that this is a local or vendor occurrence that the statute intends to keep in state court. Finally, just a quick note with regard to, we are arguing about here what the claims and allegations are in the complaint. There has not even been an answer to the complaint at this stage, there's been no discovery, and there's virtually no record in this case. And so I believe in the, in the reply brief, SCRG raised a lot of facts that aren't in the record, but here, again, the focus is what's in the complaint, that's all we have at this stage. And the district court certainly acknowledge that all we're dealing with and all that he was dealing with are allegations. Yes, that's correct, Your Honor. So finally, just to say that if this court reverses the district court on that we've alleged a an event or occurrence that's local, in the alternative, we ask that on remand, that you remand with instructions to permit us to get discovery on the question of whether or not SCRG is a citizen of the Virgin Islands. Didn't Judge Bordel make a finding of fact on that matter that we would have to determine clearly, Ramies? No. Was that not a finding fact? Your Honor, it's, frankly, it's Dicta, because you didn't need to find that. I have a brief, how do you make a finding of fact it's Dicta? It didn't need to be decided to, it was something that was in dispute in the district court. It didn't need to be decided for Judge Bordel to reach the conclusion of not the court did. District judges reach alternative conclusions all the time. It may depend on the case, on the moment, on the style of the judge, but often they will do so in an effort to make things easier for the court of appeals. How does that make it any less of a finding of fact? Your Honor, I see that I'm out of time. Can I go right ahead? Thank you. It's, to the extent of finding a fact, the court didn't actually deal with the D4 question

. And so to the extent that the rest of the statute has some weight or has some influence on how we define a vendor occurrence, it makes sense to think of things as, that this is a local or vendor occurrence that the statute intends to keep in state court. Finally, just a quick note with regard to, we are arguing about here what the claims and allegations are in the complaint. There has not even been an answer to the complaint at this stage, there's been no discovery, and there's virtually no record in this case. And so I believe in the, in the reply brief, SCRG raised a lot of facts that aren't in the record, but here, again, the focus is what's in the complaint, that's all we have at this stage. And the district court certainly acknowledge that all we're dealing with and all that he was dealing with are allegations. Yes, that's correct, Your Honor. So finally, just to say that if this court reverses the district court on that we've alleged a an event or occurrence that's local, in the alternative, we ask that on remand, that you remand with instructions to permit us to get discovery on the question of whether or not SCRG is a citizen of the Virgin Islands. Didn't Judge Bordel make a finding of fact on that matter that we would have to determine clearly, Ramies? No. Was that not a finding fact? Your Honor, it's, frankly, it's Dicta, because you didn't need to find that. I have a brief, how do you make a finding of fact it's Dicta? It didn't need to be decided to, it was something that was in dispute in the district court. It didn't need to be decided for Judge Bordel to reach the conclusion of not the court did. District judges reach alternative conclusions all the time. It may depend on the case, on the moment, on the style of the judge, but often they will do so in an effort to make things easier for the court of appeals. How does that make it any less of a finding of fact? Your Honor, I see that I'm out of time. Can I go right ahead? Thank you. It's, to the extent of finding a fact, the court didn't actually deal with the D4 question. So there is no finding with regard to whether the D4 exception fits. We requested discovery below. And for good reason, Judge Bordel didn't need to grant that. You also didn't cross appeal on that either, right? We couldn't have your honor. And the reason we couldn't have is because we got 100% of the relief that we asked for below, which was a remand to the state court. And we asked the U of Rm. Okay, thank you very much. Mr. Hartman. But let me ask you at the outset, if we ruled in your favor, and we reversed, what do you think the consequences would be for the next case? I mean, I almost can see the headlines here that, you know, U.S. Court of Appeals says that an island can't qualify for the in-state exception. I mean, those seem to be the consequences. It seems that it would be absurd to say otherwise. If they did so, Your Honor, I think calling it the in-state exception would be the the logical part of the argument. The name of the exception is the single occurrence exception

. So there is no finding with regard to whether the D4 exception fits. We requested discovery below. And for good reason, Judge Bordel didn't need to grant that. You also didn't cross appeal on that either, right? We couldn't have your honor. And the reason we couldn't have is because we got 100% of the relief that we asked for below, which was a remand to the state court. And we asked the U of Rm. Okay, thank you very much. Mr. Hartman. But let me ask you at the outset, if we ruled in your favor, and we reversed, what do you think the consequences would be for the next case? I mean, I almost can see the headlines here that, you know, U.S. Court of Appeals says that an island can't qualify for the in-state exception. I mean, those seem to be the consequences. It seems that it would be absurd to say otherwise. If they did so, Your Honor, I think calling it the in-state exception would be the the logical part of the argument. The name of the exception is the single occurrence exception. In other words, Although it seems like everybody refers to it as the in-state exception. Well, except it's not really. What it really is, it says an event or occurrence in a state where results occur to state. If you take, for instance, the question to you is, if we were to rule in your favor, what do you think the consequences would be for future cases? Because if St. Croix doesn't qualify for the in-state exception, other than maybe some island in a way, what does? Well, Your Honor, we coded to the Armstead case, which wasn't in St. Croix, it was in Louisiana. And there were issues that the cross the state line into Texas was the negligence there, so on and so forth. Were decisions made there. And what they court said was, look, you focus on the event. Where did the event happen? What was the event? And the point being that this isn't a statute, the new figure headline shouldn't be about the in-state exception. It should say, Cauffa was specifically written, the mass action in Cauffa was specifically written, to accept one very narrow range of things. It's where there were single catastrophic events. And they just find them, fires, explosions, spills. That's all it was ever talked about with regard to this issue. Let me leave you with this. When former Justice Alita was on our court, he was involved, he wrote in a case called Smith, which went in bank, it was a social security case

. In other words, Although it seems like everybody refers to it as the in-state exception. Well, except it's not really. What it really is, it says an event or occurrence in a state where results occur to state. If you take, for instance, the question to you is, if we were to rule in your favor, what do you think the consequences would be for future cases? Because if St. Croix doesn't qualify for the in-state exception, other than maybe some island in a way, what does? Well, Your Honor, we coded to the Armstead case, which wasn't in St. Croix, it was in Louisiana. And there were issues that the cross the state line into Texas was the negligence there, so on and so forth. Were decisions made there. And what they court said was, look, you focus on the event. Where did the event happen? What was the event? And the point being that this isn't a statute, the new figure headline shouldn't be about the in-state exception. It should say, Cauffa was specifically written, the mass action in Cauffa was specifically written, to accept one very narrow range of things. It's where there were single catastrophic events. And they just find them, fires, explosions, spills. That's all it was ever talked about with regard to this issue. Let me leave you with this. When former Justice Alita was on our court, he was involved, he wrote in a case called Smith, which went in bank, it was a social security case. And basically, he said that if the text of a statute is completely absurd in the circumstances in that now exist, you don't allow the absurdity, or you do basically what he says, you don't follow the text. And now he's still, I was given speeches where he has said that when he was, that was reversed by the Supreme Court, where you do follow the text, can't be right. Supreme Court certainly is never right all the time, because they weren't right in that case. But the question here is, it seems as if to rule in your favor would create something that is so illogical, that it could be deemed to be absurd. It would almost be that you don't have the in-state exception. I guess you may be the only argument you have is that, yes, you do have the in-state exception, provide you have a single event of occurrence. Well, I think your honor said something of the same about absurdity in Abramson recently that CAFUS should be left alone to its language unless the result is basically absurd. And it's not absurd to think, especially in light of what Congress talked about. It's not absurd to think that what they were trying to do was create a very, very narrow exception when you hit a very specific type of event, that kind of event, not being a 40-year spell, it being where something goes boom. Remember, this was an exception to a bill that intended to broadly widen CAFUS the jurisdiction of the federal court's guard to the... If something doesn't go boom, but there is an admission for one week over the course of one week, that's not it. That's where the real issue comes down. I mean, the real trick here is what happens when you have something that's so close on it that it could go either way. Well, that's why God created judges

. And basically, he said that if the text of a statute is completely absurd in the circumstances in that now exist, you don't allow the absurdity, or you do basically what he says, you don't follow the text. And now he's still, I was given speeches where he has said that when he was, that was reversed by the Supreme Court, where you do follow the text, can't be right. Supreme Court certainly is never right all the time, because they weren't right in that case. But the question here is, it seems as if to rule in your favor would create something that is so illogical, that it could be deemed to be absurd. It would almost be that you don't have the in-state exception. I guess you may be the only argument you have is that, yes, you do have the in-state exception, provide you have a single event of occurrence. Well, I think your honor said something of the same about absurdity in Abramson recently that CAFUS should be left alone to its language unless the result is basically absurd. And it's not absurd to think, especially in light of what Congress talked about. It's not absurd to think that what they were trying to do was create a very, very narrow exception when you hit a very specific type of event, that kind of event, not being a 40-year spell, it being where something goes boom. Remember, this was an exception to a bill that intended to broadly widen CAFUS the jurisdiction of the federal court's guard to the... If something doesn't go boom, but there is an admission for one week over the course of one week, that's not it. That's where the real issue comes down. I mean, the real trick here is what happens when you have something that's so close on it that it could go either way. Well, that's why God created judges. You know, I think... No, I know. First he created judges, then in the order of evolution or in the order of creation, he created the eight, which tells you something about what we stand. But I don't think it's profound to say that a judge given a good set of rules on what constitutes an event can't draw that line. As I said, I don't think that exists here because council says SCRG didn't do anything, but as I pointed out in the brief, we sued someone in one of six billion dollar judgment for bulldozer that raped Faria A and it spilled stuff all over the place and we couldn't recover for it because of negligence there. I just don't think that it's that profound problem. Thank you. Thank you to both council. Thank you, Ann. We'll take the matter under advisement. Thank you. Thank you, guys.

And Mr. Hartman and Ms. Nichols, whenever you're ready. Thank you very much, Eric. May I please your court? I'm Carl Hartman representing the appellate C. Cory Renaissance Group LLP. Do you wish to reserve any time for rebuttal? Yes, Your Honor. May I reserve a few minutes please? That's fine. At the outset, I'm going to ask both counsel. If you would address, there is a conceivable tension between the purpose of this statute, which is to have the federal courts being able to be involved with certain types of cases, but not in state cases, as you know, the in-state exception. And one could make an argument on that the island of St. Croix is about as in-state as it could conceivably get versus the text of the statute, which talks about accident or occurrence. And you have two items here. You've got the box item or the red dust red mud. And you also have the friable asbestos. And one could argue that it's hard to say that textually that those are a single accident or occurrence, perhaps you can't make that argument. That's where we see the tension here if you could address that at some point. If I understand the court, the question is whether the statute has some sort of hidden subtext, which requires a deference beyond what's in the plain language to localize what opposing counsel's lawful. And just to clarify, the plain language is eventual occurrence, right? Yeah, of course, I'm sorry, I said accident, excuse me, it's the better occurrence. Yes. Well, Your Honor, I believe that to get into the entire issue of the intent of CAFA and what it really does, it doesn't mean beyond what's actually on the face of the language is, as Judge Smith said, and Morganby gave a tricky maneuver. Because there were so many intents going on. Well, it was really tricky there because they didn't say what they meant, but that issue's been taken care of. I think so. In the wine Morgan versus. I wouldn't mind if we went a little further in taking care of the issue of what the legislative history supposedly says with regard to this. I believe that the idea that there's some sort of special operational interest beyond the language isn't upheld anywhere in the history of the statute. All right, so you're putting all of your eggs in the event basket. Is that right? Or do I read you is putting just about all of your eggs in the article and basket? No, Your Honor, I'd say that I'm really putting all my eggs in the plaintiffs have the burdened and they haven't met the burden basket. I don't think the case really gets too much beyond that because there's no record here that suggests anything that would prove either event or occurrence. Right, there's just they have the burden they made no record with regard to the burden. Well, I mean, this is statutory interpretation. That's right, Your Honor. And if the statutory interpretation, you got to help us as much as she does. Okay, so so back at the end event issue, the only thing that suggests legislative history here that's beyond what's absolutely apparent. Are you going to legislative history now and just jumping over the textual arguments to be made? Well, I thought the judge embryo. I'm sorry, you're still addressing the judge. Yeah, I'm sorry. The question that was asked was whether I thought there was some sort of language here that restricted the first exception to Kaffa Mass actions down below what's actually in the language answers. From your perspective, it is clear that the purpose of the statute is to try to deal with matters that go across state lines. And that cuts against the plaintiffs position. But you have a statute which has been oft criticized that has a provision that says that it does not apply or does not include any civil action in which quote all the claims in the action arise from an event or occurrence in the state in which the action was filed. That's correct. So the question here is, is an event or occurrence limited to like a three mile island type of thing? Can it exist if it's continuous? Can it still be an event or occurrence? I mean, what could argue that the Civil War, I think something was in event with, you know, with a whole lot of different occurrences perhaps. But we're trying to make some sense out of the language here and we need your help. Okay. I would say this about it. You're in the 2005, what I really want to do is answer that by giving some of the legislative history if I'm right now. Why are you turning to the legislative history without addressing the text of the statute? Well, the text of the statute is both, we both asked you about an event or occurrence. What does event mean? I mean, shouldn't the starting point be that inquiry because that's what the district court in his opinion defined? I agree, Your Honor. I just, I don't think the statute could be any clearer in terms of what an event means. Every single, you think it is clear. Every single case that is interpreted this statute is held that an event means a single thing. Unless it has environmental tort somewhere near it. All of the other cases call an event an event. It defines it as singular. It defines it as not continuing. The only time you get into this whole idea of a continuing toward in the Restatement 161 is when you get near this environmental tort issue. There's nothing in the text of the statute that sets that environmental tort. Absolutely. That can be found somewhere in the legislative history, but not in the text of the statute. That's correct. Now, but what I want to know is if we do focus on the text, certainly in common violence, and that's what we're required to look to and to reference, isn't the term event frequently used to describe events that are as not as temporarily limited as you're suggesting. I asked a lot of it could go online and reference the event. Recently, news stories, March Madness is somewhere referred to as an event. It's not a discrete game or even a, even a half of a game. Have that George Snell lost? I didn't care. I picked the wrong game. The district court used the example of the Civil War. That's right, but it rather long continued. It robs the exception of any meaning, Your Honor. How so? Because an event becomes... It's still definable, isn't it? Not really. In one case... You don't think the Civil War is... You rather I referred to it as the recent unpleasantness perhaps? No, but being able to call it... As I said in my brief, the Cretaceous Era is also called an event. And so everything that happened after the Cretaceous Era would be... The finalism. A single event. Isn't your definition really limiting? Not at all, Your Honor. Limiting how? Well, in that... It's hardly going to catch anything, right? If you're talking about a very singular one-time deal. That's the way you'd like to... I mean, in this case, is it a breeze that came by and blue red mud? Is that what the event was? Well, I will say this. I know that you've noticed a new event. I know that you want to stick to the pure wording, but I will tell you that in 2005, when this was passed, the minority attempted to have the statute amended to add, particularly to add environment, continuing environmental thoughts. And when they didn't put it in, the minority railed mightily at 89 of the Senate report, saying that failing to carve out an exception to S5 to protect the environment, for just what Your Honor is discussing. But that's sort of like... If legislative history is once removed, what you're talking about is at least two or three times removed. And the thing that you want to talk about, legislative history, although it supports what you say, the trouble is this legislative history came out as legislative history sometimes does. Good two weeks after the vote was taken. I agree. And so the argument then becomes, it was someone who's skeptical, is that it was put together to keep at least one person, usually the chair of a committee, happy with regard to what the interpretation would be, but it's not even necessarily the committee's view, and certainly not the Congress's view. So what's beaten to us as federal judges is that you look to the text first, and you exhaust everything you can with regard to the text before you even begin to consider whether you should look at something else. I couldn't agree more, Your Honor. And as I say, every court that has ever examined the concept of event, if you leave out this subtext about environmental courts, is always that event is singular. The definition I gave you, I know that your law court went on the internet, but the definition I gave you, the quoted from an asbestos case, was that an event was a singular thing, something that happens at a discrete point in time. Wouldn't doesn't Congress now have to define more narrowly than a term event, a temporally delimited period of time? Well, they did, Your Honor. They said an event, an event, an means one event. Or a court civil war too. Well, I understand that, Your Honor, but that brings us back to the cretaceous problem, which is that if you define a event as being a broad thing, then this exception has no meaning. It simply disappears into the, I mean, the Ellen case that we discussed in green. Let's go back and bring you. The J. Ambrose question at the start. And in fact, isn't there really more than just policy behind the point that the statute contemplates that a state, in this case a territory, may be more suited for the action, isn't that what, and specifically what I'm looking at right now, is 1132, D11, B, small, I, large, Romanum, or one. It's so awkward to have a new action. But, I mean, it doesn't, that clearly, it doesn't, the mass action exclusion clearly contemplates that here we have a preference for to have an recurrence in the state in which the action was filed and that allegedly resulted in injuries in that state. We're in states contiguous to that state. Absolutely, Your Honor, the point though is that the phrase in a state, and that where the injuries that occur in a state, defines the stateness of it, defines that state interest. If progress had simply wanted to limit things down to things that occurred in a state, why put an event or occurrence? Why not put a tort? Does that argument help you or hurt you? No, that helps me a lot. Because if they hadn't specified an event or occurrence, in other words, you hit two different groups of people fighting with each other. One group wanted to open up the state courts to environmental torts, another group wanted to close it down. And so, they came to a compromise. What was the compromise? We'll limit things with regard to things that happened within a state in which you have a thefts in a state. But the other side said, yeah, we don't want every single thing going in there. In the 2003 legislative history, and I know you don't want to hear the legislative history, it specifically said singular event, nothing more. When this thing got moved, and this is after the vote, when it got moved to the Senate in 2005, when it got moved to that committee, after the vote was taken, they changed that express language. And when they changed that express language, the minority who tried to get the single event thing taken out went crazy. So, everybody knew what the rules were. The rules were that on the one hand you have a state, an effects in a state, but the other side got something bad. What did they get back? They got back, this was limited to legislative horse trading is not what we're about. I thought we started out talking about plain language. Are you legislative history more than you have. When you get back up on rebuttal, the question that I'd like you to deal with first is assuming that you could have a continuing event or occurrence, how do you deal with the fact that you have two different emissions, one of the box site, and the one of the pryabal asbestos, and how those separate emissions can constitute an event or a return. Thank you. Thank you. Miss Nichols? Good afternoon and may it please the court. The section that we're talking about. Better now to your name for the record. Leah Nichols. Thank you. The text we're talking about, we are talking about an event or occurrence that involves a local events and local injuries to the plaintiffs. Now the statute itself doesn't define the words event and it doesn't define the word occurrence. But as we, as has already been discussed today, the purpose of this section of D11 B21 is about keeping local controversies and local court. And so we have a, what I think is a fairly broad phrase, this event or occurrence. And if you were writing this opinion, when does the talks expel, go from being a single event to a multiple event? It goes to being multiple events, Your Honor, when there's some sort of intervening break in the chain of causation, some sort of intervening event that dramatically changes the landscape. Was there an intervening event here? No, Your Honor, not from the time that SCRG purchased the property and continued to hold it and continues to own it through the time of the complaint. What, you've led a series of discrete types of activity over a period of time. Have you not? We have not your honor. If you look at the complaint, if you look at paragraph 471, which is on page 51 of the joint appendix. This is in paragraph 471 near the bottom. It says this dispersion of toxic materials occurred continuously from the same source and they did not obey it. And so that in paragraph 471 alleges a continuous occurrence as well. So you described to the witch, Bartle described as a continuing tort theory. Right, and I think that's reasonable. I think it's reasonable to look at continuing torts in this context, and to look at how we figure out what's one tort, how that's different from another tort. Now looking at how to define these terms event in occurrence, there's not a lot of piece law that defines the word event. But there is a large body. There's no federal appellate authorities. Right, there's only, there's one federal appellate authority defining or dealing with this. In the vodka case? Yeah, the Novodak case out of the Ninth Circuit is the only court of appeal, federal court of appeal's opinion that deals with this section. Right, and the facts there are pretty different from the facts here. And so it's not really helpful, I think, one way or the other. But the word occurrence, there's actually quite well developed body of law with regard to the word occurrence and the insurance liability context. And there, the word occurrence is consistently unanimously defined is something that can be ongoing or recurring or repeated over a period of time. And we've cited to a number of those cases from this court that deal with it in that context. And in fact, if you look up occurrence in black's law dictionary, it describes it as quote something that happens or takes place specifically an accident event or continuing condition that results in personal injury or property damage. And what we've alleged here is a continuing condition that's been going on from the time that SCRG purchased the property until the time, you know, until through the present and certainly until the time that the complaint was filed. At the beginning of the argument, Jan Jambore, you expressed a concern about both the emissions of the red dust, which is the byproduct, the industrial byproduct, which in this case is actually mixed with a lot of other material. And that's what it entails as well as the estestis. We urge or we contend that those that's just a single event or occurrence. And the reason why in this case is because it's not as if SCRG is engaging in two different processes or two different manufacturing processes that resulted in two different emissions. They bought the property at the time that they bought the property was no longer being used as a refinery. It was just a, you know, unused refinery. And it didn't do anything to abate the emissions coming out of that that property. And because of the nature of the claims here, although there's more than one material issue, they come out of the same occurrence using that same definition that's out of that well established body. But SCRG has argued as I understand it that these events, plural included erosion of red mud from the piles, disbursement and the wind of the red dust, go you to remove and immediate asbestos and proper storage of red dust, cold dust and other particulates. And the action to increase the disbursement of the toxic substance. Here, though, what it all comes down to, what all of that comes down to your honor is that SCRG failed to prevent these materials from leaving the property, from being disperse from the property. They've done nothing. And it's hard to see how the fact that they've, how to sensibly break that down into one or more event or more event or occurrence. So you could say, well, they, you know, they failed to deal with the erosion, but they also failed to deal with these mudslides. And it's sort of, and once you get into that, it's hard to draw the line there as to which is an event or occurrence. It's just not sensible. And so here, because the underlying conduct at issue is really, they're failure to do anything with anything on this site that that's a single event or occurrence as alleged in the company. The district court, I think, found that Hurricane Maryland, which struck in 1995, began the now, I guess, continuous dispersion of the red mud of which you complain. I mean, would be fair to say that Hurricane Maryland was an event or occurrence for purposes of this session. And if an, if an hurricane had struck and caused significant changes to, to the location. So for example, tore up a building or something like that or changed the landscape and caused erosion. Then yes, that could be an event or occurrence. Can we, can we decide this issue on the plain text of the statue? Yes, Your Honor. Absolutely. So that we would not have to resort to that exposed effort by the Senate. Exactly, Your Honor. Absolutely. At least somebody in the Senate. Yes. Exactly. Maybe a staffer. Yes. This case can absolutely be decided on the plain text of the statute. And again, it's already noted it makes sense to look at occurrence as it's used in these insurance liability context. I mean, those, those policies are often written to deal with, you know, suits for toxic torts. And so I think that's an appropriate place to look. Would you agree that it's, at this point, it's your burden to prove the event exception applies? No, Your Honor. Are we dispute that it's an exception versus a versus just part of the definition of a removable mass action? But that aside, it is here we're looking at the complaint and does do the allegations in the complaint constitute a local event or occurrence. And so here, as far as who ultimately bears the burden as Judge Amber earlier said, it's really a such to reinterpretation. The question I asked your opponent to consider the last of you, how do you reconsider the emission of two different types of toxic chemicals to be a single or event or occurrence under the language of Kaffa? In this case, Your Honor, the allegation comes down to SCRG's failure to do anything to prevent particles from this same site from going elsewhere. When that bought the site, it was defunct. It was not an operational refinery. It's not as if it had one process over in, you know, part area one doing one thing and another process and in part B or part two, where the emissions and the facts are going to be very different. But at the very least aren't there two different occurrences here, one box site, one asbestos? No, Your Honor. It's one occurrence because it's all coming out of their failure to do anything with this site. They purchased the site, it had all of these things were already being emitted from the site at the time of the purchase and they did nothing about any of them. In the process of what went on at the site, did the, you're saying that the, what was emitted was always at the same end. So, the instant box site and asbestos or the, for the, for the, yes, since 2002, both of them were being emitted to our, to our knowledge. Yes, now it may be that, you know, the, you know, the merits haven't been determined yet, but to our knowledge and the allegations and the complaint are that for, I believe it says for at least 10 years asbestos, the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, for the, to that is to serve low given and when they're But that is to serve low given to their, they have earned from the Maycan by these liability contracts. And so sometimes event, sometimes event, and I think the SCRG is pointed to one dictionary definition, for example, that defines a venn as a mortis grief, as something more discreet. But there's nothing, and they've, and SCRG has provided no example of a definition of occurrence. That's that narrow. And both sides of our view, this case, based on how the district court adjudicated it, which is defining and interpreting the term event, am I correct? Yes, the district court defined an interpreted event, but the statute does say event or occurrence. I know what statute says, but my point is in terms of arguments that we can and should consider, neither of you have argued that this is an occurrence under the statutory term as opposed to an event, have you? We certainly have argued that here, your honor, in the briefing, absolutely. That we have argued that it's an occurrence. So to the extent that these terms are somewhat our broad difficulty to find, it is important to keep in mind the purpose of CAFA, which CAFA has not won, but two provisions that aim to keep local controversies in local courts. All of the events here, all the relevant events occurred on the island. This is a case brought by local islanders for damages. I'll just talk about that about to the extent we can consider purpose, everything flows in your direction. There's no doubt about that. The hang up is the text of the statute. Certainly, your honor. The one that I quoted earlier and that the site was given by Judge Smith. Is there anything we can look to in this structure of the statute, aside from just the language of a vendor occurrence that would support your position? With regard to, I think there, yes, and that's that the, there are two provisions that keep local attempt to ensure to keep local events or occurrences in state court. There's the one that we've been talking about, and then there's also the D4 exception, which applies to both class actions and mass actions that says that we're a defendant, and two thirds of the plaintiffs are citizens of the same state that those cases should also be in state court. And so to the extent that the rest of the statute has some weight or has some influence on how we define a vendor occurrence, it makes sense to think of things as, that this is a local or vendor occurrence that the statute intends to keep in state court. Finally, just a quick note with regard to, we are arguing about here what the claims and allegations are in the complaint. There has not even been an answer to the complaint at this stage, there's been no discovery, and there's virtually no record in this case. And so I believe in the, in the reply brief, SCRG raised a lot of facts that aren't in the record, but here, again, the focus is what's in the complaint, that's all we have at this stage. And the district court certainly acknowledge that all we're dealing with and all that he was dealing with are allegations. Yes, that's correct, Your Honor. So finally, just to say that if this court reverses the district court on that we've alleged a an event or occurrence that's local, in the alternative, we ask that on remand, that you remand with instructions to permit us to get discovery on the question of whether or not SCRG is a citizen of the Virgin Islands. Didn't Judge Bordel make a finding of fact on that matter that we would have to determine clearly, Ramies? No. Was that not a finding fact? Your Honor, it's, frankly, it's Dicta, because you didn't need to find that. I have a brief, how do you make a finding of fact it's Dicta? It didn't need to be decided to, it was something that was in dispute in the district court. It didn't need to be decided for Judge Bordel to reach the conclusion of not the court did. District judges reach alternative conclusions all the time. It may depend on the case, on the moment, on the style of the judge, but often they will do so in an effort to make things easier for the court of appeals. How does that make it any less of a finding of fact? Your Honor, I see that I'm out of time. Can I go right ahead? Thank you. It's, to the extent of finding a fact, the court didn't actually deal with the D4 question. So there is no finding with regard to whether the D4 exception fits. We requested discovery below. And for good reason, Judge Bordel didn't need to grant that. You also didn't cross appeal on that either, right? We couldn't have your honor. And the reason we couldn't have is because we got 100% of the relief that we asked for below, which was a remand to the state court. And we asked the U of Rm. Okay, thank you very much. Mr. Hartman. But let me ask you at the outset, if we ruled in your favor, and we reversed, what do you think the consequences would be for the next case? I mean, I almost can see the headlines here that, you know, U.S. Court of Appeals says that an island can't qualify for the in-state exception. I mean, those seem to be the consequences. It seems that it would be absurd to say otherwise. If they did so, Your Honor, I think calling it the in-state exception would be the the logical part of the argument. The name of the exception is the single occurrence exception. In other words, Although it seems like everybody refers to it as the in-state exception. Well, except it's not really. What it really is, it says an event or occurrence in a state where results occur to state. If you take, for instance, the question to you is, if we were to rule in your favor, what do you think the consequences would be for future cases? Because if St. Croix doesn't qualify for the in-state exception, other than maybe some island in a way, what does? Well, Your Honor, we coded to the Armstead case, which wasn't in St. Croix, it was in Louisiana. And there were issues that the cross the state line into Texas was the negligence there, so on and so forth. Were decisions made there. And what they court said was, look, you focus on the event. Where did the event happen? What was the event? And the point being that this isn't a statute, the new figure headline shouldn't be about the in-state exception. It should say, Cauffa was specifically written, the mass action in Cauffa was specifically written, to accept one very narrow range of things. It's where there were single catastrophic events. And they just find them, fires, explosions, spills. That's all it was ever talked about with regard to this issue. Let me leave you with this. When former Justice Alita was on our court, he was involved, he wrote in a case called Smith, which went in bank, it was a social security case. And basically, he said that if the text of a statute is completely absurd in the circumstances in that now exist, you don't allow the absurdity, or you do basically what he says, you don't follow the text. And now he's still, I was given speeches where he has said that when he was, that was reversed by the Supreme Court, where you do follow the text, can't be right. Supreme Court certainly is never right all the time, because they weren't right in that case. But the question here is, it seems as if to rule in your favor would create something that is so illogical, that it could be deemed to be absurd. It would almost be that you don't have the in-state exception. I guess you may be the only argument you have is that, yes, you do have the in-state exception, provide you have a single event of occurrence. Well, I think your honor said something of the same about absurdity in Abramson recently that CAFUS should be left alone to its language unless the result is basically absurd. And it's not absurd to think, especially in light of what Congress talked about. It's not absurd to think that what they were trying to do was create a very, very narrow exception when you hit a very specific type of event, that kind of event, not being a 40-year spell, it being where something goes boom. Remember, this was an exception to a bill that intended to broadly widen CAFUS the jurisdiction of the federal court's guard to the... If something doesn't go boom, but there is an admission for one week over the course of one week, that's not it. That's where the real issue comes down. I mean, the real trick here is what happens when you have something that's so close on it that it could go either way. Well, that's why God created judges. You know, I think... No, I know. First he created judges, then in the order of evolution or in the order of creation, he created the eight, which tells you something about what we stand. But I don't think it's profound to say that a judge given a good set of rules on what constitutes an event can't draw that line. As I said, I don't think that exists here because council says SCRG didn't do anything, but as I pointed out in the brief, we sued someone in one of six billion dollar judgment for bulldozer that raped Faria A and it spilled stuff all over the place and we couldn't recover for it because of negligence there. I just don't think that it's that profound problem. Thank you. Thank you to both council. Thank you, Ann. We'll take the matter under advisement. Thank you. Thank you, guys