Legal Case Summary

The presence of Judge Lewis Pollock, a senior judge, a senior to all of us and not only his knowledge, his experience with them, and be a system analogist with same, and all the other nice things. Quite the same. That's right, it's not quite the same. And who is... I didn't finish the sentence. And the Eastern District of Pennsylvania, this court couldn't do its work. We didn't have the assistance of visiting judges from other circuits. But really, most other court and appeals judges who are senior, the actors of the court are not allowed to move around. We have too much of a round to do. But senior judges in other courts of appeals and in our own district courts, and the district judge who sits with us the most and gives us the most health is Judge Pollock. If you don't know this, you should know that had been the Dean of Yale Law School, had been the Dean of Penn Law School, and they decided, oh well, no more academics for him. So they kicked him to the district court of the Eastern District of Pennsylvania, where he's been since 1970. Judge Harderman and I have delighted to have him with us. And yesterday I said something about how I liked him, and he said, there's didn't mean that he liked me. And so maybe he won't say that today, because it's on the record as we've pointed out. You've inverted the conversation. I never infer the conversation. With respect. Let's see what the record shows. We will hear counsel after that love fest in Brown vs. Genic. May I say a word? It's no better. Do we get permission? Absolutely. I just want to say what a really great pleasure and privilege it is to work from time to time with the court of appeals. It's a particularly fine court of appeals, not just the best one in the third circuit, but around the country

. And I've sat with them. Anyhow, sitting with a slow-witter and Judge Harderman is indeed a great professional pleasure. And I should add that Judge Slowwitter handles my public relations. Okay, Mr. Landau. And I tell you all, as you know, we read the briefs and the record before we come up here. Thank you, Your Honor. May I please the court? My name is Christopher Landau, and I'm here this morning on behalf of the four appellants who are the four son defendants. Thank you, Mr. Riser, five minutes for a bottle. The key question here is whether a plaintiff can defeat removal of a multi-defendant class action by simply naming a debtor as a defendant in violation of the automatic state. The answer to that question is no. The automatic state, by its terms, provides that there can be no effective service of process on a debtor. Therefore, it's as if the debtor were not a party to the case at all, and it's not present in the case. It follows that a plaintiff can't defeat removal of an action by naming a debtor, and naming a debtor can't defeat removal of the action by a non-decker who has been properly served. Are you suggesting that that's the purpose of naming? No, this is fairly your honor. The purpose is actually immaterial, because the point is it's a legal nullity, whether it was designed that way, or whether it simply turned out that way, unbeknownst to them. They certainly take the position that they didn't know, and that's really not, neither here nor there. The point is it's just a legal nullity. If they had named Jeffic before it filed for bankruptcy, it doesn't get deleted, it just gets stayed, isn't that right? You can serve Jeffic. Now, does it mean that once they declared bankruptcy, you can't serve them or you just can't proceed against them? You can't proceed against them. If they have not been served... Well, if they haven't been served, you can't proceed anyway. I guess I never thought about the point you made at the very beginning in which you said you can't serve them

. You may be right. No, it's actually right there in the language of the automatic state itself, section 362. It says a quote. The petition filed under a bankruptcy petition operates as a say, applicable to all entities, a state of, and this is the operative language, the commencement or continuation, comma, including the issuance or employment of process, comma, of a judicial blah, blah, blah. Thank you. So, that's really the key here, Your Honor, because in other words, the district judge here was concerned and understandably so about some violation of the automatic state. She thought, again, it's understandable, the idea is once there's a state, everything freezes, you don't want the debtor to have to spend any money in defending an action, she thought the whole thing should just... Stay near the mic. I apologize, Your Honor. We get it when we listen. I feel like I'm getting feedback in the mic, but I don't want to have that figured nails on a chalkboard sound, but okay. What the district... Can you pick it off if it's down that low? What'd you say? I'll go, okay. Thank you, Your Honor. The point is, when the debtor is covered by the automatic state, at that point, this is if the debtor is just not a party, you don't want the debtor spending money. Could the Sun defendants have appealed, I mean, the big point on the other side is that they should have appealed the first order, and they didn't. Are you telling us there was nothing to appeal? Yes, in other words, frankly, I think that was probably correctly decided. I mean, certainly the law is... This court has not decided this issue, the six-circuit has decided this issue, and Bank of New York, that even a.

.. When a defendant who is covered by the automatic state tries to remove that is ineffective, and in a sense, you can understand why that would be so, because... The service of process has been ineffective, and you don't want the debtor incurring money on that score. So, frankly, I don't see how we would have had standing. What is unusual here, a cafe creates a regime where you don't need everybody to join in a removal. Usually, you don't have this issue, because in the typical non-cathac context, if everybody who's been served has to join the removal petition, that everybody is there together, and in that situation, you can understand when there's a remand order, everybody is actually on those papers. Here, of course, under Caffa, any one defendant can remove without the consent of the other defendants. So, it gives rise to this issue of what happens when one person removes. Certainly, we had no... It would have been very odd, Your Honor, to create a rule that we, who were not named... Who did not file the removal, would have had to take an appeal of the district court's decision saying that the debtor couldn't remove when we actually thought that decision was perfectly fine. It was... We just created a very anomalous situation, forcing us to take appeals of decisions that we think were correctly decided. And again, the key here, Your Honor, is why would we have done that when we were still within our initial 30-day period for removing ourselves? It frankly seemed like a no-brainer for us to say, why would we try to get involved in this complicate... In an appeal where we really had no business and where we frankly thought that the thing was correctly decided, when we could just remove ourselves. Excuse me, Mr

. Lemn, can you serve time for a while? I did, I'm sorry, could I? You probably did with him. Yes. Okay, thank you. So again, Your Honor, I think the answer to your question specifically is, no, we could not have appeal. And again, the point is, we were still... We were not a penalty defendant case under CAFA. Let's say nobody's bankrupt. And you don't have to get the permission of all the other defendants to remove. So defendant number one moves and can... Does that stop defendant number two or three or four from doing anything? Well, Your Honor, again, one critical point is, once defendant number one has removed, the entire action is removed. It doesn't just remove the claims against defendant number one. So defendant numbers two, three or four really have nothing to do on removal, because the case has been removed. The entire action has been removed, even though they didn't join in the removal. So they're not precluded from anything, and I suppose, Your Honor, if they wanted to, they could join the removal and make themselves parties to that. So the court removes and can anybody... What can be the position with respect to remand and appeal from that? Suppose a defendant doesn't want to be removed, can that defendant who hadn't filed the removal appeal? If a defendant... Trying to just figure out the practicalities of this undercalf. Sure, it can get

...calfa creates a lot of... I mean, people in both sides of me have been district judges, but one is and one has been. And I never have been so. Right, I think the key point I'd like to make your Honor is that it would... And I think the district court would really understand this point, that it would be very odd the regime that they're proposing, Your Honor, would be that we as a non-removing defendant, again, Calfa creates this anomalous regime or one defendant can remove. We're the defendant that didn't remove, although our claims are removed. The remand takes place on the basis that is unique to the removing party, because that party is a debtor, that party couldn't remove. Their rule, Your Honor, would basically force us to be in the position of appealing a district court remand decision that we think is entirely correct. In other words, we had no issue with the district court's decision to remand the case on the ground that the Jevick bankrupt defendants had no business, had no right to remove it. But certainly, it would be very strange, I think, from a district court's perspective to be appealed and possibly reversed on a ground that the district court was never asked to consider, and that the district court may have been entirely correct on. The thing that's a little bit anomalous about that, it seems to me, though, is when you say you don't object to the remand vis-a-vis the debtor, when we talk about remand, the whole case gets airlifted. It literally, all the papers in the docket get taken from the federal court and shipped in Pittsburgh anyway, right down Grand Street to the state court. So the notion that it could be remanded vis-a-vis one party, but not the other is sort of a logical impossibility. It is not remanded vis-a-vis. The whole case is remanded. I think, again, the premise of their argument is that there's only one bite at a removal apple. That has never been the law in the non-calfa context, and certainly nothing in the calfa context made it harder to remove. When this case was removed the first time, and then there was a motion for remand, did you participate in the briefing, the argument of that? No, you're on it, and you raised a very good point. It was remanded to Suasante within days. It was removed, I believe, on June 27th, and there was no briefing or argument on that

. It was just remanded, and we removed, in fact, the next day. So, I mean, their notion that we are somehow playing games with the appeal system doesn't pass muster because we removed the very next day within one day of the initial remand. We would have still been within time to finally appeal how we thought that was prudent or necessary. But instead of fighting a battle that wasn't our battle, one point that's critical is that there's a 30-day removal window. That's the original 1446 window. Calfa doesn't deserve that window. We were still within our initial 30-day window to remove. So, again, why would we have even had to deal with these complexities of, should we appeal this agreement? Why fight an appeal if you can just remove? Correct. We happen to be. I think the trickier question, frankly, in terms of your setting the Calfa rules might arise for somebody when it's remanded after their 30-day window for removal has come and gone. Of course, that's not this case. Then you might have a tolling question. This might be analogous to American pipe tolling in the class action context for somebody. That situation could say, why would I have wanted to remove if the case was already removed? Again, that's not here, Your Honor, because again, it's as if the Jevick defendants were not a party to the case, and we were perfectly entitled to remove the room. Within our 30-day window, incontestantly, and so the original remand had no deal of serious effect on our ability to remove. Mr. Landau, let me ask a question that I think is probably a pointless question. There are no such thing, Your Honor. There are very few pointed questions I ask. As distinct from filing the next day, your petition for removal after the Suas Monta remand, could you have asked the District Court to modify its remand order or vacate that aspect of the bill? I don't know if that would have changed anything that we're considering. I'm just trying to dope out what the process is already. It's an interesting question, Your Honor, whether we could have done that. I certainly don't think we could have moved for reconsideration because, in a sense, the court was correct. I mean, whether we could have kind of tried to intervene in the initial one is an interesting issue. Again, because of the fact that we were still within our 30-day window, we weren't forced to cross that hard bridge here, and it was much easier to do it this way. But those are the kinds of questions as a practical matter that will arise in these, either you have a regime of tolling where a person's 30-day window gets kept open by the pendency of the initial one, or you seem to be in fairness, you have to have a regime where somebody could come in and do that

. Frankly, I think people should, this case doesn't really present a great vehicle for giving that broad guidance again because we're in the 30-day window. But people are going to want to know the answer to that, just litigators as a practical matter who are in a multi-defending class action where one person removes. They're going to want to know, gee, should I now participate in it? Should I appeal that? So I think that this case raises some very interesting issues. I think this is an easy case just given where we are on the side of the 30-day line. Now, let me ask you a question from what's different. There is currently an adversary proceeding going on on the same matter. Precisely. So if we were to agree with you, and this would have to go back to the district court, would there not be a process in which this matter could be stayed pending or consolidated or in some way affected so you don't have too duplicative actions going on? Absolutely, Your Honor. And in fact, we had made a motion to transfer this case. And that is what we wanted to do. We wanted to get this case to federal court and then transfer it to the bankruptcy because it doesn't make sense as Your Honor recognizes have two dueling class actions. In fact, one thing that happened recently is not reflected in the briefs is that the class was certified last month in the Delaware Bankruptcy Court action. So that class action is moving ahead. I don't know. I don't know the mechanism for the transfer. It's a 14 or four transfer. It would be a four transfer for interesting TV and suggestions. You wouldn't have a 1407 yet at this point. Well, okay. But I mean, and again, if you look at the DACA here, but you would have no objection to some kind of consolidation. Not only the objection, we would affirmatively welcome that. That is what we actually follow motion. You can see in the DACA sheet below to do just that. Okay. Thank you. Absolutely

. Thank you. Thank you. Are you okay? Thank you. All right. Then we'll hear from your friend, the only other side of the aisle. Mr. O'Brien. Good morning, Your Highness. We're making some law here under cap and there's not a lot as we well know. A couple of things. Notwithstanding the absence of a lot of law, there are some facts here that. And I know the court read the briefs, obviously, from the ten or the questions, but it's important here to look at the factual scenario as it occurred. Well, May 18, some ten months ago, big companies shut down. 1200 people went out with 24 hours notice they lost their jobs. Economic catastrophe in Burlington County. Thereafter, I got involved nine days later, not knowing. And I did file the complaint in state court in Burlington County under state law only because the judge Slavitor, you know, under federal law, it's pretty hard. If you have a failing employer, you were involved in the APA decision several months ago. It's pretty hard to get a cause of action under federal law, worn act wise with a failing employer. There's a new law in New Jersey just passed in December of seven. Doesn't have any defenses for the most part from an employer for an employer in a failing business. The whole over action does charge the federal worn act as well as the... No, my action was filed in state court. The one in bankruptcy does

... No, the one in bankruptcy does. Yes, it does. Yes, they filed it initially in federal worn act as an adversary proceeding in bankruptcy and then amended it and included the state act. But that wouldn't adversely affect the possibility of some consolidation. I don't know. I don't know. There's another proceeding going on. You asked the question, why isn't this case in federal bankruptcy? No, I didn't answer. Well, I thought you had suggested that maybe there's an issue as to why it's not in bankruptcy court. Why... Son didn't try to get itself in bankruptcy court. And I don't really answer to that because I don't think they've tried to get the federal judge Judge Shanahan or the bankruptcy judge Judge Shanahan to move this case down in front of him. And Judge Pollock, you asked the question and I think it was a pretty good one relative to simply going back to the district court judge, Judge Bum, and simply saying, you can't remand something you have no control over almost. It's like a metaphysically impossible thing to do. And that wasn't done. So what we have here is a factual scenario wherein I filed the complaint. It was, of course, later dismissed by the Superior Court because against the Jevick defendants, it's still up there in Burlington County Superior Court. But you start with proposition here. You've got a New Jersey gang of defendants or group of defendants who are Jersey residents. You've got a cause of action in New Jersey. You got for the most part a vast number of New Jersey plaintiffs overwhelmingly so. And you got the acts that were complained about all occurring in New Jersey

. Now that kind of scenario seems to me kind of important under CAFA. So if in fact we get into the position of of remanding this case or sending this case back to district court and telling them to grant the removal, what you've got essentially is a case that has all the end issue of a non-CaFA case. But I guess the bottom line here is those are all policy arguments against the wisdom of CAFA. Well, I think it's clear that you want to be in New Jersey court. Maybe you have some good policy reasons why you should be in New Jersey court. But I think you need to persuade us why you have a right to be in New Jersey court or conversely why why your adversary doesn't have a right to be in federal court. Well, the short answer here is what's a federal district court judge to do? Judge Bum got this case on a removal petition from Jevick. That's the uniqueness of this case. And perhaps the suggestion is that she shouldn't have decided this way and simply say I can't entertain a removal petition Mr. Jevick. Simply because I year in non entity a metaphysical impossibility and I'm not supposed to do anything to you. But the fact of the matter is that Jevick did file the application for removal and that's the that's the flaw with the argument here that's been raised by the employer. Judge, I thought some didn't son remove the action. Well, this is the second time. Yeah, I have to the first removal, but the question becomes how many shots do you get at removal? There's cases that we have cited in our brief saying you one shot at removal judge Bum said we're not going to have a bunch of revolving doors here. How about the other defendants maybe they can come in if I deny it against son? Are you saying that the cases established the principle that if you have multiple defendants, removal can happen only once? Yes, under this statute there are the unusual nature of cafes doesn't have to be all defendants agreeing to go in, but I think it's pretty clear that once you remove and it's important here to think what was removed, Jevick was attempting to remove the entire case. And what you're going to get here is piecemeal because now we have son coming back trying to remove a second time against themselves, not the entire case, but against themselves. Is it possible to conceive of this as a situation in which the judges sue a Sponte, we man first decision or second? Pardon? First or second? The first ring and the second. Essentially was a statement they never was a removal because Jevick as you say metaphysically doesn't exist and therefore what we have here called the second removal is really a first removal. But she did in response to Jevick's request, considered on the merits. And I guess the question is if you decide that the second removal is okay. Essentially, I think you're deviating from a rule that says you get one shot at removal and I think that's the problem here. Well, one defendant improperly removes why does that pollute the opportunity for all the other defendants? Well, I don't think you can have a sequence of different defendants coming forward and simply say, well, I get a micro act now. That's not the way the removal statutes work. Well, why would they want to if in fact the whole thing has been removed and another defendant also wants to remove? It's been removed. Why would you have the Syrian and removal? Because the first time judge bomb said no, but let's assume she was put put aside that take the ordinary case in which you said what we would have. I think you said was a series of different defendants removing, but if you don't have the first removal invalid because it was against a non it couldn't happen. Would you ever really practically have another situation with multiple removals? Why would they do that? If other defendants wanted the case removed also, you don't remove as to a defendant. You remove the whole case. So why would you ever have extra removals except in the case where there was a remand like now? So we generous situation. It is. And it's interesting, but you also have here some important policy considerations under CAFA. We've got a situation here where we have a huge deviation from traditional removal law where we have individual defendants removing as you know well when you remove everybody's got to remove. Under CAFA, including the debtor. I don't know. I mean, isn't that the real policy, concerned? It seems to me if we adopt the rule you're advocating, a party could always defeat removal by naming a bankrupt entity as one of the defendants. Well, you're going to have to look at whether there was a fraudulent joy or not. Why should why should intent be the barometer here? Why? Opposing council argue that that's immaterial. Why is that wrong? Because it's wrong because you're ignoring the Jevick bankruptcy removal. Not understanding Jevick was in bankruptcy. It's a tenth of remove. You're essentially there are two wrongs, right? Jevick should never have been sued. You can't sue a party in bankers. Agreed. And and and and Jevick should not have been should not have removed the case because as you point out. Jevick was not in existence under the law, but the question becomes you're going to find a lot more times when the bankruptcy stay, which I did. I violated the bankruptcy state, not knowing at the time. It was legal malpractice, not the name, Jevick, knowing what I know at the time when I father lawsuit. Understandably, if you don't name the employer, then what kind of lawyer are you? You know, but by the same token, we get to we get to the point that judge bum gets this in front of her. And I think you have to take a hard look at what she what she talked about the second time. I mean, it's not the most extensive kind of order, but you don't. Not only is it not so extensive, the other side didn't have an opportunity to be heard on the matter

. I think you said was a series of different defendants removing, but if you don't have the first removal invalid because it was against a non it couldn't happen. Would you ever really practically have another situation with multiple removals? Why would they do that? If other defendants wanted the case removed also, you don't remove as to a defendant. You remove the whole case. So why would you ever have extra removals except in the case where there was a remand like now? So we generous situation. It is. And it's interesting, but you also have here some important policy considerations under CAFA. We've got a situation here where we have a huge deviation from traditional removal law where we have individual defendants removing as you know well when you remove everybody's got to remove. Under CAFA, including the debtor. I don't know. I mean, isn't that the real policy, concerned? It seems to me if we adopt the rule you're advocating, a party could always defeat removal by naming a bankrupt entity as one of the defendants. Well, you're going to have to look at whether there was a fraudulent joy or not. Why should why should intent be the barometer here? Why? Opposing council argue that that's immaterial. Why is that wrong? Because it's wrong because you're ignoring the Jevick bankruptcy removal. Not understanding Jevick was in bankruptcy. It's a tenth of remove. You're essentially there are two wrongs, right? Jevick should never have been sued. You can't sue a party in bankers. Agreed. And and and and Jevick should not have been should not have removed the case because as you point out. Jevick was not in existence under the law, but the question becomes you're going to find a lot more times when the bankruptcy stay, which I did. I violated the bankruptcy state, not knowing at the time. It was legal malpractice, not the name, Jevick, knowing what I know at the time when I father lawsuit. Understandably, if you don't name the employer, then what kind of lawyer are you? You know, but by the same token, we get to we get to the point that judge bum gets this in front of her. And I think you have to take a hard look at what she what she talked about the second time. I mean, it's not the most extensive kind of order, but you don't. Not only is it not so extensive, the other side didn't have an opportunity to be heard on the matter. Well, George Pollock suggested it if they didn't like the disposition that could have went back inside to her. What are you doing? It's a non entity. It's metaphysically non existent. You know, but instead second crack at the apple. No, not son. I mean, that's son could not have the problem. I mean, she she didn't appear to distinguish the fact or perhaps it wasn't meaningful to her. But the party that removed the second time was not Jevick, but in fact, son, which is a living breathing corporate entity and did apparently have the right to remove the case. At least initially before Jevick. Well, I guess I guess that's my question. It sounds like your argument is that this mistake that was made by Jevick somehow forecloses son's opportunity to remove. And there's just no case law on that. There's there's nothing, but by the same token, what's what's the district court judge the second time up? And I disagree with you, Judge Hardman. I think judge judge Bob knew son was a new guy at the block and was a was one of the actors here. And I guess the question is that the bottom line here was when you make this decision and you decide if you decide that son has the ability to go in for a second file a second petition because of nature of the first removal petition. Essentially, you're given them the second crack at the apple. And I don't think removal law says you get a second crack at the apple. If you look at our cases. Mr. Abraham. Suppose, supposedly changed this narrative a little. Suppose the initial removal was by son. Then you move to remand. What it is judge bum to say to herself, well, I have here a case removed to me. It shouldn't be here because. Traffic is not an entity that can be sued

. Well, George Pollock suggested it if they didn't like the disposition that could have went back inside to her. What are you doing? It's a non entity. It's metaphysically non existent. You know, but instead second crack at the apple. No, not son. I mean, that's son could not have the problem. I mean, she she didn't appear to distinguish the fact or perhaps it wasn't meaningful to her. But the party that removed the second time was not Jevick, but in fact, son, which is a living breathing corporate entity and did apparently have the right to remove the case. At least initially before Jevick. Well, I guess I guess that's my question. It sounds like your argument is that this mistake that was made by Jevick somehow forecloses son's opportunity to remove. And there's just no case law on that. There's there's nothing, but by the same token, what's what's the district court judge the second time up? And I disagree with you, Judge Hardman. I think judge judge Bob knew son was a new guy at the block and was a was one of the actors here. And I guess the question is that the bottom line here was when you make this decision and you decide if you decide that son has the ability to go in for a second file a second petition because of nature of the first removal petition. Essentially, you're given them the second crack at the apple. And I don't think removal law says you get a second crack at the apple. If you look at our cases. Mr. Abraham. Suppose, supposedly changed this narrative a little. Suppose the initial removal was by son. Then you move to remand. What it is judge bum to say to herself, well, I have here a case removed to me. It shouldn't be here because. Traffic is not an entity that can be sued. Should she on that basis grant remand or just send. Do you have a. Do you have a. Do you have a. Do you have a. Do you have a. Do you have a. Do you have a. Do you have a. Do you have a. Do you have a. Do you have a. Do you have a. Do you have a. Do you have a. Do you have a. Do you have a. Do you have a. If I. The prevalent. The prevalent there is. The hangout office is. Oh, am ensureexisting that the next stage the. Unlike. So justice has already happened at least in my case. Finally, I have sat down, I have some time left

. Should she on that basis grant remand or just send. Do you have a. Do you have a. Do you have a. Do you have a. Do you have a. Do you have a. Do you have a. Do you have a. Do you have a. Do you have a. Do you have a. Do you have a. Do you have a. Do you have a. Do you have a. Do you have a. Do you have a. If I. The prevalent. The prevalent there is. The hangout office is. Oh, am ensureexisting that the next stage the. Unlike. So justice has already happened at least in my case. Finally, I have sat down, I have some time left. I'll just say this to you, Your Highness, if I may. This case concerns, I know it's, it seems like an arcane point under new, or a nuance under removal statutes. And I'm concerned about what it pertains because state has been around now for eight months. I ran in the superior court trying to get some relief under a state law, state actors and state plaintiffs and state conduct. And here we are eight months later. And we're trying to figure out a nuance as to whether we want to remove. And I know it's policy, Judge Hardiman, you say, well, you're arguing about policy, arguing against CAFA. No, I'm not because if you look at our brief, we briefed this CAFA issue as to whether the judge maybe should have also looked at whether CAFA jurisdiction permitted or whether this was a local exemption under CAFA. Why? I don't know, I don't think a local exemption covers this. But why isn't the case that's in the adversary proceeding now, adequately protective of your clients? I want to state court judge to decide a new state law. It needs to be heard. Well, is that state law any different from the Moorne law, the federal Moorne law? Oh, big difference. There are no defenses under the state act. Additionally, the state act doesn't give 60 days pay. The state law provides for one week to pay for each year's service. Additionally, there's a huge definition in the state law of what an employer is. But doesn't the adversary action also cover the state Moorne law? It does. We are not the lawyer in the adversary action. No, no. It may not do as good a job as you would do as we can see here. But isn't, aren't the employees right being adequately protected? Is one of you before a neutral decision maker or a jury? I just, yeah, the bankruptcy judge. But what I did is I filed 200 proofs of claim. We were everything 200 people here. I filed 200 proofs of claim in bankruptcy against Jevac. I don't want a state court or a federal bankruptcy judge deciding a matter of state law. But that's, go ahead

. I'll just say this to you, Your Highness, if I may. This case concerns, I know it's, it seems like an arcane point under new, or a nuance under removal statutes. And I'm concerned about what it pertains because state has been around now for eight months. I ran in the superior court trying to get some relief under a state law, state actors and state plaintiffs and state conduct. And here we are eight months later. And we're trying to figure out a nuance as to whether we want to remove. And I know it's policy, Judge Hardiman, you say, well, you're arguing about policy, arguing against CAFA. No, I'm not because if you look at our brief, we briefed this CAFA issue as to whether the judge maybe should have also looked at whether CAFA jurisdiction permitted or whether this was a local exemption under CAFA. Why? I don't know, I don't think a local exemption covers this. But why isn't the case that's in the adversary proceeding now, adequately protective of your clients? I want to state court judge to decide a new state law. It needs to be heard. Well, is that state law any different from the Moorne law, the federal Moorne law? Oh, big difference. There are no defenses under the state act. Additionally, the state act doesn't give 60 days pay. The state law provides for one week to pay for each year's service. Additionally, there's a huge definition in the state law of what an employer is. But doesn't the adversary action also cover the state Moorne law? It does. We are not the lawyer in the adversary action. No, no. It may not do as good a job as you would do as we can see here. But isn't, aren't the employees right being adequately protected? Is one of you before a neutral decision maker or a jury? I just, yeah, the bankruptcy judge. But what I did is I filed 200 proofs of claim. We were everything 200 people here. I filed 200 proofs of claim in bankruptcy against Jevac. I don't want a state court or a federal bankruptcy judge deciding a matter of state law. But that's, go ahead. The federal district judges and bankruptcy judges do that every day. That's the Holyery doctrine. I mean, I know they do. I know. I can only speak for myself. I mean, Judge Pollock can speak for himself, but I can assure you that when I had a case involving state law issues, which happened quite frequently, we do our best, our level best to get it right. Under state law, regardless of what we thought of state, the propriety of the state law. The real, the real remedy for people like myself and former department is for you to urge on when your representatives in Congress to get rid of these federal courts. I mean, not not the Supreme Court. It can fear an anterior choice. We're in revolutionary times. Don't be surprised to see GAFA legislation overturned with the new administration. Thanks for your time, yeah. Thank you. I don't know if I have any time left over, but if I could... Yeah, we don't take the bundle time. Unless the Supreme Court of the United States, if you talk over your initial time, we don't take it out of the original time. We're very generous. I will still be very brief and not a views or generosity. There's three quick points I just would like make. First, I think that argument shows that the premise of their position is that there's this alleged one bite at the apple on removal. That is simply not true. The Supreme Court in the Fritzland case has made that clear. This court in the Diet drugs and the Doe cases has specifically made that clear

. The federal district judges and bankruptcy judges do that every day. That's the Holyery doctrine. I mean, I know they do. I know. I can only speak for myself. I mean, Judge Pollock can speak for himself, but I can assure you that when I had a case involving state law issues, which happened quite frequently, we do our best, our level best to get it right. Under state law, regardless of what we thought of state, the propriety of the state law. The real, the real remedy for people like myself and former department is for you to urge on when your representatives in Congress to get rid of these federal courts. I mean, not not the Supreme Court. It can fear an anterior choice. We're in revolutionary times. Don't be surprised to see GAFA legislation overturned with the new administration. Thanks for your time, yeah. Thank you. I don't know if I have any time left over, but if I could... Yeah, we don't take the bundle time. Unless the Supreme Court of the United States, if you talk over your initial time, we don't take it out of the original time. We're very generous. I will still be very brief and not a views or generosity. There's three quick points I just would like make. First, I think that argument shows that the premise of their position is that there's this alleged one bite at the apple on removal. That is simply not true. The Supreme Court in the Fritzland case has made that clear. This court in the Diet drugs and the Doe cases has specifically made that clear. They based that language on this first circuit case called Providencia from 1969, which doesn't stand for that proposition. The Providencia case says that once a district were renans, the district court can't pull it back. In other words, that's what happened in that case. In other words, that is one thing to say. Once you remain, once you send that certified letter, and it's gone, it is gone. That is a very different thing than saying if there is a... There can be no subsequent remand. No subsequent removal, excuse me. The premise of their argument that there's this alleged one bite at the apple is simply not correct, as an out of law. Second quick point is they said that our regime has parts of cases being removed. Again, that is not true. When we remove the case, just as when... just as when Jeffic removed the case, the entire case is removed, including the claims against the Jevick entities. Those claims are... The Jevick entities basically... the claims against the Jevick entities are going to lie dormant, whether the case is in State Court or in Federal Court. They're safe. It doesn't matter, but they don't preclude

. They based that language on this first circuit case called Providencia from 1969, which doesn't stand for that proposition. The Providencia case says that once a district were renans, the district court can't pull it back. In other words, that's what happened in that case. In other words, that is one thing to say. Once you remain, once you send that certified letter, and it's gone, it is gone. That is a very different thing than saying if there is a... There can be no subsequent remand. No subsequent removal, excuse me. The premise of their argument that there's this alleged one bite at the apple is simply not correct, as an out of law. Second quick point is they said that our regime has parts of cases being removed. Again, that is not true. When we remove the case, just as when... just as when Jeffic removed the case, the entire case is removed, including the claims against the Jevick entities. Those claims are... The Jevick entities basically... the claims against the Jevick entities are going to lie dormant, whether the case is in State Court or in Federal Court. They're safe. It doesn't matter, but they don't preclude... They're not like a led... Unless, of course, the bankruptcy court gives relief from the other mathematics days. Absolutely. Absolutely. That's the asterisk that goes to everything that I'm saying. You're absolutely right, but of course that has not happened here. But I think this kind of goes to some questions that Judge Pollock was raising with a opposing council about what... these Jevick claims, what is going on with them? Again, the Jevick claims are not a led balloon that holds the whole case back. The Jevick claims... The claims against Jevick are exactly the same as claims against an unserved defendant, who even in the non-cafla context, when all defendantes have to consent to removal, that rule has never been applied to unserved defendants. So basically, again, I think the easiest way to think about this is that Jevick defendants covered by the automatic state are just like unserved defendants. They don't have any impact on the removal rights of co-defendants. If it applied to unserved defendants, plaintiffs could always defeat removal just by choosing not to serve somebody. Exactly right, Your Honor. And the same exact point derises here, I think, as you had pointed out with the opposing council. The vice with the regime that Judge Bum came up with is that it would allow plaintiffs to defeat removal for everybody by naming a bankrupt party in violation of the automatic state. That's why it would be so revolutionary to accept their argument. I think council is very forthright

... They're not like a led... Unless, of course, the bankruptcy court gives relief from the other mathematics days. Absolutely. Absolutely. That's the asterisk that goes to everything that I'm saying. You're absolutely right, but of course that has not happened here. But I think this kind of goes to some questions that Judge Pollock was raising with a opposing council about what... these Jevick claims, what is going on with them? Again, the Jevick claims are not a led balloon that holds the whole case back. The Jevick claims... The claims against Jevick are exactly the same as claims against an unserved defendant, who even in the non-cafla context, when all defendantes have to consent to removal, that rule has never been applied to unserved defendants. So basically, again, I think the easiest way to think about this is that Jevick defendants covered by the automatic state are just like unserved defendants. They don't have any impact on the removal rights of co-defendants. If it applied to unserved defendants, plaintiffs could always defeat removal just by choosing not to serve somebody. Exactly right, Your Honor. And the same exact point derises here, I think, as you had pointed out with the opposing council. The vice with the regime that Judge Bum came up with is that it would allow plaintiffs to defeat removal for everybody by naming a bankrupt party in violation of the automatic state. That's why it would be so revolutionary to accept their argument. I think council is very forthright. Council would like to litigate this case and say, Court in New Jersey. What's your answer to him? He says, look, these are New Jersey people who are now out of jobs, adding to all of the people in the country, who are out of jobs. And we want the New Jersey state judge to decide this case. In any way, we get more rights under the New Jersey law, which is new, than we get under the federal law. How do you answer that? My point is the same, I think, that your Honor, may, which is to point out that there is a New Jersey act, claim pending in the adversary proceeding in Delaware. But he wants a New Jersey judge to decide the New Jersey claim. Well, then he should, I think this is Judge Paulis Point. He should say to Congress, please get rid of removal jurisdiction. I think that a state court should decide a state law. Well, I thought Judge Paulis said get rid of the state federal court. Or get rid of federal court's office. He didn't pay his, you know, these are different times where they're saying. I need the removal stat, just not having any court. So again, I think that's the answer that federal courts, you know, there are certain removal rights and state causes of action, get litigated in federal court. Planktips often want to stay in state where that's understandable, but that's why they're, they're removal things. The other point I just want to make is he raised concerns about an ongoing series of removals that could be disruptive. The 30-day window that CAFA keeps from section 1446 will prevent any such problems. Because again, you only have 30 days to remove from the time on which a pleading puts you on notice of a removable condition. You know, lawyers are very fast. A lot of lawyers can move in that 30-day period. A lot of lawyers can move, you know, the 30 days doesn't me, doesn't preclude a series of actions. No, but I guess my only point, your honor was to say that there is no concern about things getting delayed indefinitely. Because at some point, it's going to be people have no basis for removing a case months after it had become removable, because you're always going to have the 30-day window. You can't play game. You can't play game. And that's a jurisdiction over the following

. Council would like to litigate this case and say, Court in New Jersey. What's your answer to him? He says, look, these are New Jersey people who are now out of jobs, adding to all of the people in the country, who are out of jobs. And we want the New Jersey state judge to decide this case. In any way, we get more rights under the New Jersey law, which is new, than we get under the federal law. How do you answer that? My point is the same, I think, that your Honor, may, which is to point out that there is a New Jersey act, claim pending in the adversary proceeding in Delaware. But he wants a New Jersey judge to decide the New Jersey claim. Well, then he should, I think this is Judge Paulis Point. He should say to Congress, please get rid of removal jurisdiction. I think that a state court should decide a state law. Well, I thought Judge Paulis said get rid of the state federal court. Or get rid of federal court's office. He didn't pay his, you know, these are different times where they're saying. I need the removal stat, just not having any court. So again, I think that's the answer that federal courts, you know, there are certain removal rights and state causes of action, get litigated in federal court. Planktips often want to stay in state where that's understandable, but that's why they're, they're removal things. The other point I just want to make is he raised concerns about an ongoing series of removals that could be disruptive. The 30-day window that CAFA keeps from section 1446 will prevent any such problems. Because again, you only have 30 days to remove from the time on which a pleading puts you on notice of a removable condition. You know, lawyers are very fast. A lot of lawyers can move in that 30-day period. A lot of lawyers can move, you know, the 30 days doesn't me, doesn't preclude a series of actions. No, but I guess my only point, your honor was to say that there is no concern about things getting delayed indefinitely. Because at some point, it's going to be people have no basis for removing a case months after it had become removable, because you're always going to have the 30-day window. You can't play game. You can't play game. And that's a jurisdiction over the following. Yes. This is the safety valve that precludes a parade of horrible about things going on indefinitely. Am I wrong that Sun is a corporation affiliated with Jevick? No, you're not wrong, you're not wrong. That is true. Sun is the parent corporation. Sun has an ownership interest in Jevick. Is it 100 percent owned? I believe that's majority of the same. Yes, yes, yes, yes, you are. That's the basis of what's such a different corporation. Yes, it is clearly a legally distinct entity. Okay, thank you. There's no further questions. Thank you. I want to ask one question. This is an inappropriate question, which is really inquires about law strategy. But am I right that the real reason that you wanted to remove was the thought that you could get rid of Mr. O'Brien as an adversary, but you know, he'll come along with the case and he's going to be a tough adversary whatever court you're in. Well, I am sure that is true, but your honor, the point is there are many reasons people want to remove. I see Mr. O'Brien is getting a good circle and your honor is too. He's such a good lawyer. You know, I'll just say, you know, wouldn't you want to if you weren't our shoes? Absolutely. Thank you, Ryan. Thank you. We'll take the matter under advisement.

The presence of Judge Lewis Pollock, a senior judge, a senior to all of us and not only his knowledge, his experience with them, and be a system analogist with same, and all the other nice things. Quite the same. That's right, it's not quite the same. And who is... I didn't finish the sentence. And the Eastern District of Pennsylvania, this court couldn't do its work. We didn't have the assistance of visiting judges from other circuits. But really, most other court and appeals judges who are senior, the actors of the court are not allowed to move around. We have too much of a round to do. But senior judges in other courts of appeals and in our own district courts, and the district judge who sits with us the most and gives us the most health is Judge Pollock. If you don't know this, you should know that had been the Dean of Yale Law School, had been the Dean of Penn Law School, and they decided, oh well, no more academics for him. So they kicked him to the district court of the Eastern District of Pennsylvania, where he's been since 1970. Judge Harderman and I have delighted to have him with us. And yesterday I said something about how I liked him, and he said, there's didn't mean that he liked me. And so maybe he won't say that today, because it's on the record as we've pointed out. You've inverted the conversation. I never infer the conversation. With respect. Let's see what the record shows. We will hear counsel after that love fest in Brown vs. Genic. May I say a word? It's no better. Do we get permission? Absolutely. I just want to say what a really great pleasure and privilege it is to work from time to time with the court of appeals. It's a particularly fine court of appeals, not just the best one in the third circuit, but around the country. And I've sat with them. Anyhow, sitting with a slow-witter and Judge Harderman is indeed a great professional pleasure. And I should add that Judge Slowwitter handles my public relations. Okay, Mr. Landau. And I tell you all, as you know, we read the briefs and the record before we come up here. Thank you, Your Honor. May I please the court? My name is Christopher Landau, and I'm here this morning on behalf of the four appellants who are the four son defendants. Thank you, Mr. Riser, five minutes for a bottle. The key question here is whether a plaintiff can defeat removal of a multi-defendant class action by simply naming a debtor as a defendant in violation of the automatic state. The answer to that question is no. The automatic state, by its terms, provides that there can be no effective service of process on a debtor. Therefore, it's as if the debtor were not a party to the case at all, and it's not present in the case. It follows that a plaintiff can't defeat removal of an action by naming a debtor, and naming a debtor can't defeat removal of the action by a non-decker who has been properly served. Are you suggesting that that's the purpose of naming? No, this is fairly your honor. The purpose is actually immaterial, because the point is it's a legal nullity, whether it was designed that way, or whether it simply turned out that way, unbeknownst to them. They certainly take the position that they didn't know, and that's really not, neither here nor there. The point is it's just a legal nullity. If they had named Jeffic before it filed for bankruptcy, it doesn't get deleted, it just gets stayed, isn't that right? You can serve Jeffic. Now, does it mean that once they declared bankruptcy, you can't serve them or you just can't proceed against them? You can't proceed against them. If they have not been served... Well, if they haven't been served, you can't proceed anyway. I guess I never thought about the point you made at the very beginning in which you said you can't serve them. You may be right. No, it's actually right there in the language of the automatic state itself, section 362. It says a quote. The petition filed under a bankruptcy petition operates as a say, applicable to all entities, a state of, and this is the operative language, the commencement or continuation, comma, including the issuance or employment of process, comma, of a judicial blah, blah, blah. Thank you. So, that's really the key here, Your Honor, because in other words, the district judge here was concerned and understandably so about some violation of the automatic state. She thought, again, it's understandable, the idea is once there's a state, everything freezes, you don't want the debtor to have to spend any money in defending an action, she thought the whole thing should just... Stay near the mic. I apologize, Your Honor. We get it when we listen. I feel like I'm getting feedback in the mic, but I don't want to have that figured nails on a chalkboard sound, but okay. What the district... Can you pick it off if it's down that low? What'd you say? I'll go, okay. Thank you, Your Honor. The point is, when the debtor is covered by the automatic state, at that point, this is if the debtor is just not a party, you don't want the debtor spending money. Could the Sun defendants have appealed, I mean, the big point on the other side is that they should have appealed the first order, and they didn't. Are you telling us there was nothing to appeal? Yes, in other words, frankly, I think that was probably correctly decided. I mean, certainly the law is... This court has not decided this issue, the six-circuit has decided this issue, and Bank of New York, that even a... When a defendant who is covered by the automatic state tries to remove that is ineffective, and in a sense, you can understand why that would be so, because... The service of process has been ineffective, and you don't want the debtor incurring money on that score. So, frankly, I don't see how we would have had standing. What is unusual here, a cafe creates a regime where you don't need everybody to join in a removal. Usually, you don't have this issue, because in the typical non-cathac context, if everybody who's been served has to join the removal petition, that everybody is there together, and in that situation, you can understand when there's a remand order, everybody is actually on those papers. Here, of course, under Caffa, any one defendant can remove without the consent of the other defendants. So, it gives rise to this issue of what happens when one person removes. Certainly, we had no... It would have been very odd, Your Honor, to create a rule that we, who were not named... Who did not file the removal, would have had to take an appeal of the district court's decision saying that the debtor couldn't remove when we actually thought that decision was perfectly fine. It was... We just created a very anomalous situation, forcing us to take appeals of decisions that we think were correctly decided. And again, the key here, Your Honor, is why would we have done that when we were still within our initial 30-day period for removing ourselves? It frankly seemed like a no-brainer for us to say, why would we try to get involved in this complicate... In an appeal where we really had no business and where we frankly thought that the thing was correctly decided, when we could just remove ourselves. Excuse me, Mr. Lemn, can you serve time for a while? I did, I'm sorry, could I? You probably did with him. Yes. Okay, thank you. So again, Your Honor, I think the answer to your question specifically is, no, we could not have appeal. And again, the point is, we were still... We were not a penalty defendant case under CAFA. Let's say nobody's bankrupt. And you don't have to get the permission of all the other defendants to remove. So defendant number one moves and can... Does that stop defendant number two or three or four from doing anything? Well, Your Honor, again, one critical point is, once defendant number one has removed, the entire action is removed. It doesn't just remove the claims against defendant number one. So defendant numbers two, three or four really have nothing to do on removal, because the case has been removed. The entire action has been removed, even though they didn't join in the removal. So they're not precluded from anything, and I suppose, Your Honor, if they wanted to, they could join the removal and make themselves parties to that. So the court removes and can anybody... What can be the position with respect to remand and appeal from that? Suppose a defendant doesn't want to be removed, can that defendant who hadn't filed the removal appeal? If a defendant... Trying to just figure out the practicalities of this undercalf. Sure, it can get...calfa creates a lot of... I mean, people in both sides of me have been district judges, but one is and one has been. And I never have been so. Right, I think the key point I'd like to make your Honor is that it would... And I think the district court would really understand this point, that it would be very odd the regime that they're proposing, Your Honor, would be that we as a non-removing defendant, again, Calfa creates this anomalous regime or one defendant can remove. We're the defendant that didn't remove, although our claims are removed. The remand takes place on the basis that is unique to the removing party, because that party is a debtor, that party couldn't remove. Their rule, Your Honor, would basically force us to be in the position of appealing a district court remand decision that we think is entirely correct. In other words, we had no issue with the district court's decision to remand the case on the ground that the Jevick bankrupt defendants had no business, had no right to remove it. But certainly, it would be very strange, I think, from a district court's perspective to be appealed and possibly reversed on a ground that the district court was never asked to consider, and that the district court may have been entirely correct on. The thing that's a little bit anomalous about that, it seems to me, though, is when you say you don't object to the remand vis-a-vis the debtor, when we talk about remand, the whole case gets airlifted. It literally, all the papers in the docket get taken from the federal court and shipped in Pittsburgh anyway, right down Grand Street to the state court. So the notion that it could be remanded vis-a-vis one party, but not the other is sort of a logical impossibility. It is not remanded vis-a-vis. The whole case is remanded. I think, again, the premise of their argument is that there's only one bite at a removal apple. That has never been the law in the non-calfa context, and certainly nothing in the calfa context made it harder to remove. When this case was removed the first time, and then there was a motion for remand, did you participate in the briefing, the argument of that? No, you're on it, and you raised a very good point. It was remanded to Suasante within days. It was removed, I believe, on June 27th, and there was no briefing or argument on that. It was just remanded, and we removed, in fact, the next day. So, I mean, their notion that we are somehow playing games with the appeal system doesn't pass muster because we removed the very next day within one day of the initial remand. We would have still been within time to finally appeal how we thought that was prudent or necessary. But instead of fighting a battle that wasn't our battle, one point that's critical is that there's a 30-day removal window. That's the original 1446 window. Calfa doesn't deserve that window. We were still within our initial 30-day window to remove. So, again, why would we have even had to deal with these complexities of, should we appeal this agreement? Why fight an appeal if you can just remove? Correct. We happen to be. I think the trickier question, frankly, in terms of your setting the Calfa rules might arise for somebody when it's remanded after their 30-day window for removal has come and gone. Of course, that's not this case. Then you might have a tolling question. This might be analogous to American pipe tolling in the class action context for somebody. That situation could say, why would I have wanted to remove if the case was already removed? Again, that's not here, Your Honor, because again, it's as if the Jevick defendants were not a party to the case, and we were perfectly entitled to remove the room. Within our 30-day window, incontestantly, and so the original remand had no deal of serious effect on our ability to remove. Mr. Landau, let me ask a question that I think is probably a pointless question. There are no such thing, Your Honor. There are very few pointed questions I ask. As distinct from filing the next day, your petition for removal after the Suas Monta remand, could you have asked the District Court to modify its remand order or vacate that aspect of the bill? I don't know if that would have changed anything that we're considering. I'm just trying to dope out what the process is already. It's an interesting question, Your Honor, whether we could have done that. I certainly don't think we could have moved for reconsideration because, in a sense, the court was correct. I mean, whether we could have kind of tried to intervene in the initial one is an interesting issue. Again, because of the fact that we were still within our 30-day window, we weren't forced to cross that hard bridge here, and it was much easier to do it this way. But those are the kinds of questions as a practical matter that will arise in these, either you have a regime of tolling where a person's 30-day window gets kept open by the pendency of the initial one, or you seem to be in fairness, you have to have a regime where somebody could come in and do that. Frankly, I think people should, this case doesn't really present a great vehicle for giving that broad guidance again because we're in the 30-day window. But people are going to want to know the answer to that, just litigators as a practical matter who are in a multi-defending class action where one person removes. They're going to want to know, gee, should I now participate in it? Should I appeal that? So I think that this case raises some very interesting issues. I think this is an easy case just given where we are on the side of the 30-day line. Now, let me ask you a question from what's different. There is currently an adversary proceeding going on on the same matter. Precisely. So if we were to agree with you, and this would have to go back to the district court, would there not be a process in which this matter could be stayed pending or consolidated or in some way affected so you don't have too duplicative actions going on? Absolutely, Your Honor. And in fact, we had made a motion to transfer this case. And that is what we wanted to do. We wanted to get this case to federal court and then transfer it to the bankruptcy because it doesn't make sense as Your Honor recognizes have two dueling class actions. In fact, one thing that happened recently is not reflected in the briefs is that the class was certified last month in the Delaware Bankruptcy Court action. So that class action is moving ahead. I don't know. I don't know the mechanism for the transfer. It's a 14 or four transfer. It would be a four transfer for interesting TV and suggestions. You wouldn't have a 1407 yet at this point. Well, okay. But I mean, and again, if you look at the DACA here, but you would have no objection to some kind of consolidation. Not only the objection, we would affirmatively welcome that. That is what we actually follow motion. You can see in the DACA sheet below to do just that. Okay. Thank you. Absolutely. Thank you. Thank you. Are you okay? Thank you. All right. Then we'll hear from your friend, the only other side of the aisle. Mr. O'Brien. Good morning, Your Highness. We're making some law here under cap and there's not a lot as we well know. A couple of things. Notwithstanding the absence of a lot of law, there are some facts here that. And I know the court read the briefs, obviously, from the ten or the questions, but it's important here to look at the factual scenario as it occurred. Well, May 18, some ten months ago, big companies shut down. 1200 people went out with 24 hours notice they lost their jobs. Economic catastrophe in Burlington County. Thereafter, I got involved nine days later, not knowing. And I did file the complaint in state court in Burlington County under state law only because the judge Slavitor, you know, under federal law, it's pretty hard. If you have a failing employer, you were involved in the APA decision several months ago. It's pretty hard to get a cause of action under federal law, worn act wise with a failing employer. There's a new law in New Jersey just passed in December of seven. Doesn't have any defenses for the most part from an employer for an employer in a failing business. The whole over action does charge the federal worn act as well as the... No, my action was filed in state court. The one in bankruptcy does... No, the one in bankruptcy does. Yes, it does. Yes, they filed it initially in federal worn act as an adversary proceeding in bankruptcy and then amended it and included the state act. But that wouldn't adversely affect the possibility of some consolidation. I don't know. I don't know. There's another proceeding going on. You asked the question, why isn't this case in federal bankruptcy? No, I didn't answer. Well, I thought you had suggested that maybe there's an issue as to why it's not in bankruptcy court. Why... Son didn't try to get itself in bankruptcy court. And I don't really answer to that because I don't think they've tried to get the federal judge Judge Shanahan or the bankruptcy judge Judge Shanahan to move this case down in front of him. And Judge Pollock, you asked the question and I think it was a pretty good one relative to simply going back to the district court judge, Judge Bum, and simply saying, you can't remand something you have no control over almost. It's like a metaphysically impossible thing to do. And that wasn't done. So what we have here is a factual scenario wherein I filed the complaint. It was, of course, later dismissed by the Superior Court because against the Jevick defendants, it's still up there in Burlington County Superior Court. But you start with proposition here. You've got a New Jersey gang of defendants or group of defendants who are Jersey residents. You've got a cause of action in New Jersey. You got for the most part a vast number of New Jersey plaintiffs overwhelmingly so. And you got the acts that were complained about all occurring in New Jersey. Now that kind of scenario seems to me kind of important under CAFA. So if in fact we get into the position of of remanding this case or sending this case back to district court and telling them to grant the removal, what you've got essentially is a case that has all the end issue of a non-CaFA case. But I guess the bottom line here is those are all policy arguments against the wisdom of CAFA. Well, I think it's clear that you want to be in New Jersey court. Maybe you have some good policy reasons why you should be in New Jersey court. But I think you need to persuade us why you have a right to be in New Jersey court or conversely why why your adversary doesn't have a right to be in federal court. Well, the short answer here is what's a federal district court judge to do? Judge Bum got this case on a removal petition from Jevick. That's the uniqueness of this case. And perhaps the suggestion is that she shouldn't have decided this way and simply say I can't entertain a removal petition Mr. Jevick. Simply because I year in non entity a metaphysical impossibility and I'm not supposed to do anything to you. But the fact of the matter is that Jevick did file the application for removal and that's the that's the flaw with the argument here that's been raised by the employer. Judge, I thought some didn't son remove the action. Well, this is the second time. Yeah, I have to the first removal, but the question becomes how many shots do you get at removal? There's cases that we have cited in our brief saying you one shot at removal judge Bum said we're not going to have a bunch of revolving doors here. How about the other defendants maybe they can come in if I deny it against son? Are you saying that the cases established the principle that if you have multiple defendants, removal can happen only once? Yes, under this statute there are the unusual nature of cafes doesn't have to be all defendants agreeing to go in, but I think it's pretty clear that once you remove and it's important here to think what was removed, Jevick was attempting to remove the entire case. And what you're going to get here is piecemeal because now we have son coming back trying to remove a second time against themselves, not the entire case, but against themselves. Is it possible to conceive of this as a situation in which the judges sue a Sponte, we man first decision or second? Pardon? First or second? The first ring and the second. Essentially was a statement they never was a removal because Jevick as you say metaphysically doesn't exist and therefore what we have here called the second removal is really a first removal. But she did in response to Jevick's request, considered on the merits. And I guess the question is if you decide that the second removal is okay. Essentially, I think you're deviating from a rule that says you get one shot at removal and I think that's the problem here. Well, one defendant improperly removes why does that pollute the opportunity for all the other defendants? Well, I don't think you can have a sequence of different defendants coming forward and simply say, well, I get a micro act now. That's not the way the removal statutes work. Well, why would they want to if in fact the whole thing has been removed and another defendant also wants to remove? It's been removed. Why would you have the Syrian and removal? Because the first time judge bomb said no, but let's assume she was put put aside that take the ordinary case in which you said what we would have. I think you said was a series of different defendants removing, but if you don't have the first removal invalid because it was against a non it couldn't happen. Would you ever really practically have another situation with multiple removals? Why would they do that? If other defendants wanted the case removed also, you don't remove as to a defendant. You remove the whole case. So why would you ever have extra removals except in the case where there was a remand like now? So we generous situation. It is. And it's interesting, but you also have here some important policy considerations under CAFA. We've got a situation here where we have a huge deviation from traditional removal law where we have individual defendants removing as you know well when you remove everybody's got to remove. Under CAFA, including the debtor. I don't know. I mean, isn't that the real policy, concerned? It seems to me if we adopt the rule you're advocating, a party could always defeat removal by naming a bankrupt entity as one of the defendants. Well, you're going to have to look at whether there was a fraudulent joy or not. Why should why should intent be the barometer here? Why? Opposing council argue that that's immaterial. Why is that wrong? Because it's wrong because you're ignoring the Jevick bankruptcy removal. Not understanding Jevick was in bankruptcy. It's a tenth of remove. You're essentially there are two wrongs, right? Jevick should never have been sued. You can't sue a party in bankers. Agreed. And and and and Jevick should not have been should not have removed the case because as you point out. Jevick was not in existence under the law, but the question becomes you're going to find a lot more times when the bankruptcy stay, which I did. I violated the bankruptcy state, not knowing at the time. It was legal malpractice, not the name, Jevick, knowing what I know at the time when I father lawsuit. Understandably, if you don't name the employer, then what kind of lawyer are you? You know, but by the same token, we get to we get to the point that judge bum gets this in front of her. And I think you have to take a hard look at what she what she talked about the second time. I mean, it's not the most extensive kind of order, but you don't. Not only is it not so extensive, the other side didn't have an opportunity to be heard on the matter. Well, George Pollock suggested it if they didn't like the disposition that could have went back inside to her. What are you doing? It's a non entity. It's metaphysically non existent. You know, but instead second crack at the apple. No, not son. I mean, that's son could not have the problem. I mean, she she didn't appear to distinguish the fact or perhaps it wasn't meaningful to her. But the party that removed the second time was not Jevick, but in fact, son, which is a living breathing corporate entity and did apparently have the right to remove the case. At least initially before Jevick. Well, I guess I guess that's my question. It sounds like your argument is that this mistake that was made by Jevick somehow forecloses son's opportunity to remove. And there's just no case law on that. There's there's nothing, but by the same token, what's what's the district court judge the second time up? And I disagree with you, Judge Hardman. I think judge judge Bob knew son was a new guy at the block and was a was one of the actors here. And I guess the question is that the bottom line here was when you make this decision and you decide if you decide that son has the ability to go in for a second file a second petition because of nature of the first removal petition. Essentially, you're given them the second crack at the apple. And I don't think removal law says you get a second crack at the apple. If you look at our cases. Mr. Abraham. Suppose, supposedly changed this narrative a little. Suppose the initial removal was by son. Then you move to remand. What it is judge bum to say to herself, well, I have here a case removed to me. It shouldn't be here because. Traffic is not an entity that can be sued. Should she on that basis grant remand or just send. Do you have a. Do you have a. Do you have a. Do you have a. Do you have a. Do you have a. Do you have a. Do you have a. Do you have a. Do you have a. Do you have a. Do you have a. Do you have a. Do you have a. Do you have a. Do you have a. Do you have a. If I. The prevalent. The prevalent there is. The hangout office is. Oh, am ensureexisting that the next stage the. Unlike. So justice has already happened at least in my case. Finally, I have sat down, I have some time left. I'll just say this to you, Your Highness, if I may. This case concerns, I know it's, it seems like an arcane point under new, or a nuance under removal statutes. And I'm concerned about what it pertains because state has been around now for eight months. I ran in the superior court trying to get some relief under a state law, state actors and state plaintiffs and state conduct. And here we are eight months later. And we're trying to figure out a nuance as to whether we want to remove. And I know it's policy, Judge Hardiman, you say, well, you're arguing about policy, arguing against CAFA. No, I'm not because if you look at our brief, we briefed this CAFA issue as to whether the judge maybe should have also looked at whether CAFA jurisdiction permitted or whether this was a local exemption under CAFA. Why? I don't know, I don't think a local exemption covers this. But why isn't the case that's in the adversary proceeding now, adequately protective of your clients? I want to state court judge to decide a new state law. It needs to be heard. Well, is that state law any different from the Moorne law, the federal Moorne law? Oh, big difference. There are no defenses under the state act. Additionally, the state act doesn't give 60 days pay. The state law provides for one week to pay for each year's service. Additionally, there's a huge definition in the state law of what an employer is. But doesn't the adversary action also cover the state Moorne law? It does. We are not the lawyer in the adversary action. No, no. It may not do as good a job as you would do as we can see here. But isn't, aren't the employees right being adequately protected? Is one of you before a neutral decision maker or a jury? I just, yeah, the bankruptcy judge. But what I did is I filed 200 proofs of claim. We were everything 200 people here. I filed 200 proofs of claim in bankruptcy against Jevac. I don't want a state court or a federal bankruptcy judge deciding a matter of state law. But that's, go ahead. The federal district judges and bankruptcy judges do that every day. That's the Holyery doctrine. I mean, I know they do. I know. I can only speak for myself. I mean, Judge Pollock can speak for himself, but I can assure you that when I had a case involving state law issues, which happened quite frequently, we do our best, our level best to get it right. Under state law, regardless of what we thought of state, the propriety of the state law. The real, the real remedy for people like myself and former department is for you to urge on when your representatives in Congress to get rid of these federal courts. I mean, not not the Supreme Court. It can fear an anterior choice. We're in revolutionary times. Don't be surprised to see GAFA legislation overturned with the new administration. Thanks for your time, yeah. Thank you. I don't know if I have any time left over, but if I could... Yeah, we don't take the bundle time. Unless the Supreme Court of the United States, if you talk over your initial time, we don't take it out of the original time. We're very generous. I will still be very brief and not a views or generosity. There's three quick points I just would like make. First, I think that argument shows that the premise of their position is that there's this alleged one bite at the apple on removal. That is simply not true. The Supreme Court in the Fritzland case has made that clear. This court in the Diet drugs and the Doe cases has specifically made that clear. They based that language on this first circuit case called Providencia from 1969, which doesn't stand for that proposition. The Providencia case says that once a district were renans, the district court can't pull it back. In other words, that's what happened in that case. In other words, that is one thing to say. Once you remain, once you send that certified letter, and it's gone, it is gone. That is a very different thing than saying if there is a... There can be no subsequent remand. No subsequent removal, excuse me. The premise of their argument that there's this alleged one bite at the apple is simply not correct, as an out of law. Second quick point is they said that our regime has parts of cases being removed. Again, that is not true. When we remove the case, just as when... just as when Jeffic removed the case, the entire case is removed, including the claims against the Jevick entities. Those claims are... The Jevick entities basically... the claims against the Jevick entities are going to lie dormant, whether the case is in State Court or in Federal Court. They're safe. It doesn't matter, but they don't preclude... They're not like a led... Unless, of course, the bankruptcy court gives relief from the other mathematics days. Absolutely. Absolutely. That's the asterisk that goes to everything that I'm saying. You're absolutely right, but of course that has not happened here. But I think this kind of goes to some questions that Judge Pollock was raising with a opposing council about what... these Jevick claims, what is going on with them? Again, the Jevick claims are not a led balloon that holds the whole case back. The Jevick claims... The claims against Jevick are exactly the same as claims against an unserved defendant, who even in the non-cafla context, when all defendantes have to consent to removal, that rule has never been applied to unserved defendants. So basically, again, I think the easiest way to think about this is that Jevick defendants covered by the automatic state are just like unserved defendants. They don't have any impact on the removal rights of co-defendants. If it applied to unserved defendants, plaintiffs could always defeat removal just by choosing not to serve somebody. Exactly right, Your Honor. And the same exact point derises here, I think, as you had pointed out with the opposing council. The vice with the regime that Judge Bum came up with is that it would allow plaintiffs to defeat removal for everybody by naming a bankrupt party in violation of the automatic state. That's why it would be so revolutionary to accept their argument. I think council is very forthright. Council would like to litigate this case and say, Court in New Jersey. What's your answer to him? He says, look, these are New Jersey people who are now out of jobs, adding to all of the people in the country, who are out of jobs. And we want the New Jersey state judge to decide this case. In any way, we get more rights under the New Jersey law, which is new, than we get under the federal law. How do you answer that? My point is the same, I think, that your Honor, may, which is to point out that there is a New Jersey act, claim pending in the adversary proceeding in Delaware. But he wants a New Jersey judge to decide the New Jersey claim. Well, then he should, I think this is Judge Paulis Point. He should say to Congress, please get rid of removal jurisdiction. I think that a state court should decide a state law. Well, I thought Judge Paulis said get rid of the state federal court. Or get rid of federal court's office. He didn't pay his, you know, these are different times where they're saying. I need the removal stat, just not having any court. So again, I think that's the answer that federal courts, you know, there are certain removal rights and state causes of action, get litigated in federal court. Planktips often want to stay in state where that's understandable, but that's why they're, they're removal things. The other point I just want to make is he raised concerns about an ongoing series of removals that could be disruptive. The 30-day window that CAFA keeps from section 1446 will prevent any such problems. Because again, you only have 30 days to remove from the time on which a pleading puts you on notice of a removable condition. You know, lawyers are very fast. A lot of lawyers can move in that 30-day period. A lot of lawyers can move, you know, the 30 days doesn't me, doesn't preclude a series of actions. No, but I guess my only point, your honor was to say that there is no concern about things getting delayed indefinitely. Because at some point, it's going to be people have no basis for removing a case months after it had become removable, because you're always going to have the 30-day window. You can't play game. You can't play game. And that's a jurisdiction over the following. Yes. This is the safety valve that precludes a parade of horrible about things going on indefinitely. Am I wrong that Sun is a corporation affiliated with Jevick? No, you're not wrong, you're not wrong. That is true. Sun is the parent corporation. Sun has an ownership interest in Jevick. Is it 100 percent owned? I believe that's majority of the same. Yes, yes, yes, yes, you are. That's the basis of what's such a different corporation. Yes, it is clearly a legally distinct entity. Okay, thank you. There's no further questions. Thank you. I want to ask one question. This is an inappropriate question, which is really inquires about law strategy. But am I right that the real reason that you wanted to remove was the thought that you could get rid of Mr. O'Brien as an adversary, but you know, he'll come along with the case and he's going to be a tough adversary whatever court you're in. Well, I am sure that is true, but your honor, the point is there are many reasons people want to remove. I see Mr. O'Brien is getting a good circle and your honor is too. He's such a good lawyer. You know, I'll just say, you know, wouldn't you want to if you weren't our shoes? Absolutely. Thank you, Ryan. Thank you. We'll take the matter under advisement