Legal Case Summary

afternoon. Good afternoon. You're right. I'm so programmed in the same good morning. But obviously we have some scheduling problems here. It's a matter of visit by Yan. Yes, sir. By Yan wishes, Baldwin, you ready? Yes, sir. May I please the court, Stephen Haddad, and we have to remain a valiant. And I respect the request three minutes for rebuttal time. Can you just start off by telling us what in the world happened here? What caused us delay? Judge, the procedural history in this case is simple. Complaint was filed in August of 2011, and the case was dismissed. It was attorney neglect, Judge. Simply put. I've never seen any of that. I've been on this court for 20 years, and another court before this for 10 years, I have never, ever seen this kind of, you call it neglect. That's kind of like calling mine a mistake, a mole hell. I mean, it's it's the bottle of the mine. It's inexcusable. Well, if it's inexcusable, if it's neglect, then we're under 60B1, right? 60B1 is about excusable neglect, right? Those are one of the facets that I would argue. Yes, sir. Your honor. Well, the Supreme Court says those two provisions that you argue 60B1 and 60B6 are mutually exclusive, right? This would pioneer tells us. Yes. Okay. So it's a neglect case. We're not talking about 60B6, are we? Well, we can as it relates to the movement, as it relates to the plan. We can, we cannot. We can as it relates to the plan if, in this case, as the hardship that will be fall her, if the matter is not reinstated, that goes to 60B6. Under 60B1, the excusable neglect, this court has held that attorney neglect can be a basis to overturn a dismissal under a lower court than a trial court

. We understand how both things could be applicable here. When you didn't specify in the district court, which part of 60B1 you wanted to relieve under? Is that correct? That would be 60B, rather. Which part of 60B1 to relieve under be it? Subsection 1 or subsection 6, you didn't specify. 60B, I guess what the, what the request for relief, would have been, was 60B, 60B, whether it would be that number 1, excuse me, one of the neglect, or section 6 under the catch-all. But nevertheless, this court also said that you can find an abusive discretion when the lower court didn't flesh out the pioneer factors of pioneer versus brunswick case when there specifically, if you didn't flesh out those requirements, Chief Judge Bikki, that there could be a finding of abusive discretion below. And in this 60B1 or 60B6? Under, well, I guess it would be either 1, particularly when the pioneer factors are... What are the factors? The pioneer factors, what are the factors? What do they go to? Well, it would go to the fact that the excuseable neglect in this case was there and should have been granted. So as soon as you say 60B1, or excuseable neglect, we're in 60B1, right? Right. Okay. Now, it's true that you're free to argue in the alternative, but for me, I'd like to know what your main argument is. I think it's your main argument is the excuseable neglect one. Is that right? That's correct, Art. I thought you... maybe I misunderstood you. I thought you said inexcusable neglect. Well, the characterization of the conduct of the attorney handling the matter is inexcusable. That was what the Chief Judge Bikki had mentioned earlier on. And I responded to that. If it's inexcusable, how can you say it's inexcusable? Well, if it's... the conduct is characterized as inexcusable as an attorney and officer of the court. And further, it's of that argument. And as this court has ruled in Boner and in Carter, we don't want the inexcusable conduct of an attorney and officer of the court to befall the movement, who is otherwise blameless in this case. And that

... Let me go back with some of the facts. On January 25th of 2012, Judge Schessler suggested this case might be right for dismissal for failure to serve. There was a hearing scheduled for six days later on the 31st. No one even showed up for that hearing today. No. Any idea what slipped through the cracks here? I'm just trying to... The attorney from... from my research was a... a practicing state court. In state court, Your Honor, when a matter is dismissed for lack of prosecution, for failure to serve process, you are to immediately serve process. Once you complete... But that wasn't even done here, wasn't it? It wasn't even... It was like five months and four days later. No, it was attempted a week later. If you look at the..

. A week after the listing for the four-am hearing? For the dismissal on the 31st, there was an attempt on February 6th. So it would seem to me from... How long after the four-am hearing was... The list of the five-am hearing was February 6th, and the list of the eight was the first one that I called. Well, however you figure it out, it's difficult because... It's difficult to get a hand on what you're arguing because you say in your briefing, for example, on page... The very first page, you have to be... That the appellant moved to reinstate the action based on inability to serve the appellate despite due diligence. That's a quote, despite due diligence. But you've just acknowledged, of course, the record compels the acknowledgement that there was no attempt to serve the appellate until after the dismissal. How could there be a basis for saying we should have this reinstated because we tried with due diligence to serve when there was no attempt to serve? There was no attempt to serve between the time the complaint was filed and the time that Judge Cheshler dismissed the case. Yes. That was the abandonment that the attorney had on his client, but to answer your question... Yes, so how is there an argument? I guess I'm just trying to understand, like, going back, even what the argument was there. Here, you're indicating your brief to us that the motion under 60-D was quote, based on inability to serve the appellate despite due diligence. How can there be due diligence in an attempt to serve and hence the 60-D argument when no attempt to serve was made until after the dismissal? And how is that possibly characterized as due diligence? The due diligence that was expressed in the brief from the conduct of the attorney was because after it was dismissed, and while I was answering Judge Ambrose's question, this inexperienced counsel in state court would serve process then seek to reinstate the case. During the time he's trying to reinstate the case, he attempts to do his due diligence by checking the DMV, white pages, and other seconds

. Are you telling me that there's a process in the... I'm not in the practice then. There's a receipt. They've got an incredibly fine traditional system. Are you saying that in Jersey, the kind of the way things happen is that you're probably going to point the way for it to be dismissed and then you attempt to serve? Is that the way it works? Is that the way it works? Is it the right thing? That's not the way the procedural rules and the civil procedural rules work. I hope not. You're supposed to serve it within 10 days, in fact. Before the statute runs. I hope. File before the statute runs and serve. If you file the last day, you can't serve it before the statute runs, but it's 10 days in state court. Nevertheless, it's a local rule in state court that if your case is dismissed for lack of prosecution, you're supposed to go cure the defect first. Then come back to the court and ask the court if they'll reinstate it now that you've cured the defect. In Jersey, too, if you received notice in a Jersey court that there's a hearing list in a certain date, pending this missile, pending kind of complication of the... Pending consummation of dismissal of the complaint, it's kind of a common practice. You don't shop a dead hearing. Just let the complaint be dismissed. Yes, you trust me, Keith. There is no... There is no vehicle for you to go to court. It's by motion only, but we don't normally..

. He didn't normally file a motion. He would cure the defect, then request under best practices, request that it be reinstated. If you do that within 60 days, all you need is a good cause. He would have had that here. The order for dismissal was in appeal, right? The order of dismissal on January 31st was a part of my appeal along with the July 26th order of judgment. And you're, of course, that order... Wait a minute, how many did it? Five months, right? Five and a half months, wasn't it? Five months, four days. Five months, but the file, a motion for reconsideration. Yes. Yes. So, I guess the question I've got is, is the order of dismissal properly before us? If you didn't file... Didn't it feel that order? If you didn't appeal that order and you filed the 60B, it's a jurisdictional question. Maybe that the denial of the 60B motion in fact brings with it the order of dismissal. But that's the question I'm asking. Will a jurisdictional matter? Are you entitled to that? Yes, Judge Williams versus Guzardi is the case that allows that the initial order, the January 31st order and the July 26th... Well, actually, the initial appeal was for the July 31st order, but because there was a 60B motion made... You mean January 31st? I'm sorry. Yes. Okay. To that order, it also encompassed a 60B order that came to us. You said that he would have been able to show good cause

. Help me understand the good cause. Well, what this experience council had did was try to cure the defect. The good cause that he would have made in state court would have been that he didn't get service of process because either she... In this particular fact, in this particular fact pattern, that she was either evading service or he couldn't get service of process on her. Well, in your brief, you would like she was evading service. There's no citation to the record at all. I looked at the after David to return to service. What in the record substantiates your allegation in the brief that she was trying to evade service? Judge, there was a... It means ten of your brief. If you make statements like that in the brief, they should be tied to the record. If you can't suffice to chant you that from the record, you really shouldn't put it in the brief. Judge, there was a... I've had David from the service of process that had tried to serve her many times. We did a DMV search, came back that she was still living there. When he went to the apartment... What always did he go there? It's listed on the... I didn't see it on there. What I saw is he wasn't able to affect service. Period

. So, where do you get that she was evading service? You say, quote, the record demonstrates the ball, and there was a evading service. Yeah, as the chief judge has noted, there's no citation. So, can you point us to something where the record demonstrates that? It may have been a script in his era, but I specifically remember... That's what I was script in his era. I was attempting to evade service. He had a Macro in your computer. You had old return in his fitsign of brief. She was attempting to evade service. How does that become a script in his era? Because there was a document signed by Mr. Kritsner that I saw, or one of the service processes for General Sopena, that had said on the side evading service, and that wasn't attached to the brief. That was the intent to show the court that she was evading service. We're trying to find out what that could possibly have been based on. When I asked you what time service was attempted to evade, you said you weren't sure. Do you know what days they attempted to serve her? Yes, Judge. What days? Not the dates, but the day of the week, those days fall on. I could look it up for you, hon. The point is, if someone came to my house with a service between, say, 10 and 4, on 15 consecutive days, and not to 15 consecutive days, 15 different efforts between Monday and Friday, then I could find me home, because I'm the work. I'm in my chambers. So if someone goes next to my door at 10 o'clock or 11 o'clock or 1 o'clock in the afternoon, on a Monday or Tuesday, Wednesday, Thursday or Friday, tell Jesus Matisse, attempting to evade service. He's not home during the work hours of a work week. I don't know if there's anything more than that on the face of this record. Why wouldn't we assume that the writ server that I guess works normal business hours, attempted to refusher a service during normal business hours, when one could presume you wouldn't find somebody home if there are employees. You could even have vacations, you could even visit in relatives. It's an incredible statement to make. It's a fence, frankly, to put a factual allegation like that in a brief, without any sight to the record, and then when we check, there's no foundation for that statement in the record. I mean, it looks like what happened is there were several failed attempts at 208 Mary Street in Harrisburg. Part of 64, instead of Pentax 25

. Total six of ten. And then the docket entry ten shows that she finally was successfully served on September 22, 2012, at 1046 Foxcroft Drive in Camp Hill, outside Harrisburg. So, I mean, she just wasn't there. She was in another place. From the research that we did, that was her current address. We had no other address to server that. But it makes it for sure. You might want to sit down my toe this because this is going to come as Earthshaking news. And we picked on this on the seismographs over in Ukraine. We're going to pick this up. Not everyone is in their home 24 hours a day, seven days a week. In fact, you go to someone's home and they're not there to not suggest that they're hiding behind the blinds and not answering the door. It may be surprise, surprise, surprise. They are not home. Maybe they had to get some food so they could have something in the refrigerator. Maybe they were visiting somebody. Maybe they were working. Yes, Judge. How much was the complaint that it asked for in terms of damages? 100,000. 100,000. You say there is, quote, no detailed explanation for any perceived delay in bringing the motion, meaning the motion to re-state the came five days, five months. Four days late. What? First off, not to nitpick here, but you say perceived delay. Wouldn't you agree that that is a significant delay? You've got five months past the time that the thing is dismissed before your rule's 60 motion is filed. I mean, there's nothing curious about the district judge's perception there, is there? Well, Judge, in between the time that the matter was dismissed, there was this attempt to serve in February and April. And the delay, the rule used to be six months, it was extended for one year. It was less than half and less than the older rule. Yeah, isn't that turning rule 60 beyond its head when you argue that, hey, it's less than half the time period. So there has to be some extraordinary finding to justify what the district judge did

. That's exactly the opposite of what 60B says. 60B, and all the case on it, talks about you have to come forward and show something extraordinary. Not that your opponent or that the court has to show there's some extraordinary reason not to grant you relief. I'm puzzled by that argument. Well, the argument is that the excuseable neglect argument goes back to the attorney's ineffective assistance to his client. And that's the overarching argument here, Your Honor. Well, I'm reading your argument. And your argument is that perceived delays less than half of the period of time granted the secret relief. But because of that, there must be some extraordinary finding for the court to conclude that the delay is unreasonable. Where are you getting that? The burden to show something extraordinary is on you, right? Okay, so aren't you trying to get us to invert the rule by saying, oh no, the court had to say there was some extraordinary here. Well, maybe I got carried away with my brief, Your Honor. But the point is that in between the dismissal, maybe between the dismissal and the application, there was the effort to cure the defect, which is the reason that the case was dismissed at the beginning with. But the overarching, the overarching view here is that the plaintiff, Marina Balling, is innocent and nothing to do with the dismissal, was it involved with the case with undergoing surgery in April? With regard to this accident, and counsel didn't do what he was supposed to do, and we don't want to be fall the errors of counsel on an innocent plaintiff under Carter and the boner. So, assume for the moment that we vacate the order, and we send it back. Doesn't the plaintiff here still have to show, persuade the court, that the September 2012 service on Baldwin was timely under the federal rules? She would, but if you reinstate the case, then at that point in time, I would imagine that the trial judge would reset the matter and allow the matter to be brought in before it to cure the jurisdictional defect and start over again. Why so? Only because he was dismissed as a January 31st. I mean, it took 13 months to get service here. But I don't think the service was any good because the matter was dismissed, so it's a nullity. If it gets reinstated, it's going to be reinstated as a general. You start all over. Right, it was thought, essentially start all over respectfully. Can I get you to respond to one thing if my colleagues want Dolce Mann or your lights on, but you cite pioneer investment services, your opponent sites, the pioneer investment services. But there's language in the case that I'd like you to confront if you would. Most of your argument seems to be an appeal to, as you've just said, in essence, it's unfair for Ms. Balion to bear the consequences of the attorney's inexcusable neglect as you've put it. This is the language of the Supreme Court in pioneer investment. It says in other context, we have held that the clients must be held accountable for the axon emissions of their attorneys. That sites link for the Wabash and says, we held the client maybe made to suffer the consequence of dismissal of its lawsuit because of its attorney's failure to attend a scheduling pretrial conference. And then it goes on and quotes that the decision and says petitioner voluntarily chose this attorney as is represented in the action he cannot now avoid the consequence of the axon emissions of his really selected agent

. Why is that principle from pioneer investments? Not one that we should be paying attention to and following coming as it does from the Supreme Court. Judge, the simple answer to that is your dissent and Ethan Michael. The more difficult answer to that is that in link, the Supreme Court didn't avail itself to the escape hatch of 60 B. So there was no reasoning of the Supreme Court in link in order to make that decision. So yes, they said that the attorney that the client's free to choose whatever attorney they want and you're going to be held responsible for whatever that attorney does. So you better make sure that attorney does what he's supposed to do or she's supposed to do. In pioneer, they quote the Supreme Court in links. But again, there wasn't the use of this case hatch of 60 B. I think that in this case, there was an application for 60 B. The judge abuse the discretioner more than one ground. This pioneer discussion comes right after the court is talking about 60 B. It's true. It's not a 60 B case that the court goes to a lengthy discussion of 60 B1 and contrasts it was 60 B6. And this is in the very next section of the opinion where the court talks about talks about this. So it's true. It's not a 60 B case, but I'm not sure that that the court was making the distinction you're trying to make, which is, but yeah, don't pay attention to that in 60 B contracts. I think the overarching theme here, judge, is that we don't want litigants who are completely blameless to be responsible for their attorneys when there's this. This is how this is a theme, but the stuff called law is between that theme that it keeps spinning at us and what you want us to rule here. But Chief Judge McKee, respectfully, this is a very fact specific to this particular case. And as Judge Jordan noted, it is the same. Ethan Michael, it's very rare for this case to be dismissed in its infancy, but in a procedural manner. One possible difference is that in Ethan Michael, the plaintiff took a proactive role in trying to figure out what was going on in the attorney, the attorney messed up despite the plaintiff's actions. Is there any evidence here as to what type of proactive act, you know, proactive things were done by the plaintiff to check up on if nothing else the attorneys judge in this particular case, the plaintiff. I, I respectfully think that she deserves special protection that she was a single mom. She was undergoing treatment. She had surgery in April of 2012 in this accident. She was treating throughout. She wasn't in any state to be watching an attorney handling her personally, do you matter? Whereas Nathan Michael, was it sophisticated corporation? She had a telephone, she had a fax machine and email. And I had a fax machine and I assume that your office had those things too. Certainly your honor. I just took the days I was talking about here. There was only one weekend, two weekends attempted and all your efforts to make service this September 22 day when service was made of 2012. It is a Saturday, ironically, it's also a habit day, which is somewhat appropriate. The other days when service was made were all during the week, February 8, 9 and 10 of 2012, weekdays, April 17, 18, 2012, weekdays. February 21 and 22 are started in Sunday, but the other days, 24 and 24 are 25 is Monday, Tuesday, Wednesday. So again, if she was working, which may well be the case, you wouldn't have found her at home. And I come back to this allegation in the brief as she was attempting to evade service when there was really, wholly any effort made to a, to service her on a date that was not a work day. If your honor were allowed, if your honor were allowed to supplement the brief, I'm sure to, I can be sure to send that to your honor. I don't try to supplement the brief unless you can go back and think of where the Gregorian calendar, which has already been tinkered with enough, it seems, right? Yes, have you been sued as your mouth back to this action pending answer? No. Roger, some mine. Okay. Thank you. Thank you, Your Honor. Good afternoon, Your Honor. Robert Kaplan, Mark Olis-Hattlestin, or the defendant, Amanda Baldwin. I did want to pick up on the last point that Your Honor raised regarding the evasion of service, because the attachment or the proof of service contained in the brief does provide some additional explanation as to why service the process was not accomplished. The proof of service or the attempt at proof of service dated February, 2012 has the dates that service was attempted, and also has written right under that Evans EVANS listed on box for apartment number 64, no listing for Amanda Baldwin. And I suspect that at that time, that Amanda Baldwin was not residing at that address. In fact, I tried to put the pieces of this jigsaw puzzle back together again to find out what happened. I'm obviously representing this through an insurance carrier. And I can tell your honors that the claims notes that I have seen reflect that they had to, they obtained an updated address when they found out that the complaint had been filed, and they did not know about a complaint being filed in July of 2012. Mr. Kaplan, can I ask you to, well, I'd like you to respond to something in the district judge's order denying 60-B relief. The court says on appendix pages two and three, this case will not be reopened to pursue these claims, plaintiffs must refile the complaint as a new case subject to requirements of the relevant statute of limitations. Now, you can see when she, that refiling was an impossibility at that point, the court entered that order, right? It was. The statute of limitations had expired. I've already run. So, unless one attributes to the district court judge, a very fine judge, a kind of a cruel sense of humor, one would kind of be inclined to read that sentence and think, well, the judge was under a mistaken impression about the status of the statute of limitations, is that right? Or, conversely, that the judge, Judge Hester, was aware of the statute of limitations, did not want that order to be construed as allowing a complaint to be refiled without the statute of limitations coming as a bar to it

. Certainly your honor. I just took the days I was talking about here. There was only one weekend, two weekends attempted and all your efforts to make service this September 22 day when service was made of 2012. It is a Saturday, ironically, it's also a habit day, which is somewhat appropriate. The other days when service was made were all during the week, February 8, 9 and 10 of 2012, weekdays, April 17, 18, 2012, weekdays. February 21 and 22 are started in Sunday, but the other days, 24 and 24 are 25 is Monday, Tuesday, Wednesday. So again, if she was working, which may well be the case, you wouldn't have found her at home. And I come back to this allegation in the brief as she was attempting to evade service when there was really, wholly any effort made to a, to service her on a date that was not a work day. If your honor were allowed, if your honor were allowed to supplement the brief, I'm sure to, I can be sure to send that to your honor. I don't try to supplement the brief unless you can go back and think of where the Gregorian calendar, which has already been tinkered with enough, it seems, right? Yes, have you been sued as your mouth back to this action pending answer? No. Roger, some mine. Okay. Thank you. Thank you, Your Honor. Good afternoon, Your Honor. Robert Kaplan, Mark Olis-Hattlestin, or the defendant, Amanda Baldwin. I did want to pick up on the last point that Your Honor raised regarding the evasion of service, because the attachment or the proof of service contained in the brief does provide some additional explanation as to why service the process was not accomplished. The proof of service or the attempt at proof of service dated February, 2012 has the dates that service was attempted, and also has written right under that Evans EVANS listed on box for apartment number 64, no listing for Amanda Baldwin. And I suspect that at that time, that Amanda Baldwin was not residing at that address. In fact, I tried to put the pieces of this jigsaw puzzle back together again to find out what happened. I'm obviously representing this through an insurance carrier. And I can tell your honors that the claims notes that I have seen reflect that they had to, they obtained an updated address when they found out that the complaint had been filed, and they did not know about a complaint being filed in July of 2012. Mr. Kaplan, can I ask you to, well, I'd like you to respond to something in the district judge's order denying 60-B relief. The court says on appendix pages two and three, this case will not be reopened to pursue these claims, plaintiffs must refile the complaint as a new case subject to requirements of the relevant statute of limitations. Now, you can see when she, that refiling was an impossibility at that point, the court entered that order, right? It was. The statute of limitations had expired. I've already run. So, unless one attributes to the district court judge, a very fine judge, a kind of a cruel sense of humor, one would kind of be inclined to read that sentence and think, well, the judge was under a mistaken impression about the status of the statute of limitations, is that right? Or, conversely, that the judge, Judge Hester, was aware of the statute of limitations, did not want that order to be construed as allowing a complaint to be refiled without the statute of limitations coming as a bar to it. Why would he make a dismissal without prejudice if that's the case? Yeah, why wouldn't he just say, I'm sorry, but you're done. Why would he say, it's dismissed without prejudice, refile? If he knew you couldn't refile, doesn't that language admit of no interpretation except that he thought it could be refiled? Your honor, that is certainly one possible interpretation of the language as to why it was, why it was included. I'm trying to get you to help me find another one, because I read in your brief the argument you've just made, and I'm really struggling to get there. When I read it, and my interpretation of it is that he did not want that order to be construed as having any impact on the statute of limitations. Then why would he just say, you're out of luck dismissed, the statute of limitations is run. Your honor, I do not know, there was no hearing on this, and so I don't know why Judge Hesterler included that language, but I cannot... Well, here's the question, and it's an important one, Mr. Cap, when the pioneer factors that you rely on, pioneer investment factors include among them the potential impact on judicial proceedings, unquote, of a dismissal, right? Correct. Okay. So if the judge doesn't understand that the potential impact on the judicial proceedings, not the potential impact, but the certain impact is the case will be dismissed. Can it be said that the Court has actually exercised its discretion? Your Honor, that is only one factor, which I think the Court takes into consideration when determining whether or not there was, or there is excusable neglect. It's true, that's only one. There are other factors, all. Certainly, but the question I'm trying to get you to respond to is if an factor, one of five that's listed, so it's a pretty important one, is one on which the Court apparently has a mistaken understanding, and can it be said that the Court is actually exercising discretion in weighing that factor? I think the difficulty that we have is we don't know why it was that Judge Hester put that language into his order. Thanks, man. My question. And what is the harm with remaining it to Judge Chessler asking him to evaluate evaluate it in the fact that these types of limitations had run at the time of the order. If he understood that to have been the case and factored that into the pioneer consideration, the simply be Andrew's order and say, well, thank you, the third circuit. But I got that before I get it again, case dismissed. But if he didn't understand that, that gives him a chance under rule 60b to go back and then we consider whether or not he wants to visit the sins of the firm on the clients. Your Honor, we certainly could obtain that explanation from Judge Hester to find out if he knew or did not know the impact of his ruling was going to be or is order was going to be a dismissal, essentially a dismissal with prejudice because the statute of limitations had run. And but I would urge the court to also focus on all of the other factors under pioneer that need to be taken into consideration, not just the factor of the impact on the litigation in terms of the explanation for the delay. Judge Hester, undertake that evaluation and factor into that evaluation. The statute of limitations happened. Why should we do it? Because what was before Judge Hester was simply a motion to decide the court's suicide-spontan motion to dismiss for lack of prostitution because service of process had not been accomplished. There was no appearance before the judge. There was no explanation

. Why would he make a dismissal without prejudice if that's the case? Yeah, why wouldn't he just say, I'm sorry, but you're done. Why would he say, it's dismissed without prejudice, refile? If he knew you couldn't refile, doesn't that language admit of no interpretation except that he thought it could be refiled? Your honor, that is certainly one possible interpretation of the language as to why it was, why it was included. I'm trying to get you to help me find another one, because I read in your brief the argument you've just made, and I'm really struggling to get there. When I read it, and my interpretation of it is that he did not want that order to be construed as having any impact on the statute of limitations. Then why would he just say, you're out of luck dismissed, the statute of limitations is run. Your honor, I do not know, there was no hearing on this, and so I don't know why Judge Hesterler included that language, but I cannot... Well, here's the question, and it's an important one, Mr. Cap, when the pioneer factors that you rely on, pioneer investment factors include among them the potential impact on judicial proceedings, unquote, of a dismissal, right? Correct. Okay. So if the judge doesn't understand that the potential impact on the judicial proceedings, not the potential impact, but the certain impact is the case will be dismissed. Can it be said that the Court has actually exercised its discretion? Your Honor, that is only one factor, which I think the Court takes into consideration when determining whether or not there was, or there is excusable neglect. It's true, that's only one. There are other factors, all. Certainly, but the question I'm trying to get you to respond to is if an factor, one of five that's listed, so it's a pretty important one, is one on which the Court apparently has a mistaken understanding, and can it be said that the Court is actually exercising discretion in weighing that factor? I think the difficulty that we have is we don't know why it was that Judge Hester put that language into his order. Thanks, man. My question. And what is the harm with remaining it to Judge Chessler asking him to evaluate evaluate it in the fact that these types of limitations had run at the time of the order. If he understood that to have been the case and factored that into the pioneer consideration, the simply be Andrew's order and say, well, thank you, the third circuit. But I got that before I get it again, case dismissed. But if he didn't understand that, that gives him a chance under rule 60b to go back and then we consider whether or not he wants to visit the sins of the firm on the clients. Your Honor, we certainly could obtain that explanation from Judge Hester to find out if he knew or did not know the impact of his ruling was going to be or is order was going to be a dismissal, essentially a dismissal with prejudice because the statute of limitations had run. And but I would urge the court to also focus on all of the other factors under pioneer that need to be taken into consideration, not just the factor of the impact on the litigation in terms of the explanation for the delay. Judge Hester, undertake that evaluation and factor into that evaluation. The statute of limitations happened. Why should we do it? Because what was before Judge Hester was simply a motion to decide the court's suicide-spontan motion to dismiss for lack of prostitution because service of process had not been accomplished. There was no appearance before the judge. There was no explanation. There was an emotion to reinstate five and a half months or almost six months later where there was no explanation regarding why there was a delay. There was no proof of service of process. Was that another post? Motion to reinstate? Was that unopposed? Yes, the motion to reinstate was on a post. Well, then again, if the motion to reinstate was unopposed, why not they send it back to Judge Jethseler and have him take a look at this saying, we're the statute of limitations and- And apply the pioneer factors. Yeah, and you're failure to oppose the motion in the first place. I'm not hearing any argument or prejudice that would suggest that that would be a problem. Your Honor, I don't think it would be a problem. I don't know that I can stand before this court and say it would be a problem to go back and ask Judge Hester. Essentially, did you know what the impact of your decision was going to be and if you did not know that, would you have reached a different decision? Well, isn't that the very thing that is involved in the exercise of discretion is understanding the impact of a decision? I mean, that's why the Supreme Court called it out as a- as a factor that needed to be considered, presumably, right? I mean, prides requires that you give an explanation when you were on a 60-B motion. Which wasn't given. Well, of course, at- at that point all the judge was looking at was the factors regarding why hadn't served as a process been accomplished? I don't think anybody in the courtroom, even Mr. Hadad, is prepared to say those were good reasons. He himself said, look, what happened there is, you know, to use his word, it was inexcusable. So there's bad stuff there, but that doesn't really go to the point we're pressing on you right now, which is, is this something for the district judge to handle? In the first instance, having it made clear to him, wait a second, dismissal means there's no more case. There is no refiling on it. It's not without prejudice, it can't be. By definition, that's exactly right. It's a bit of a misunderstanding. If in fact that's what occurs, then we were asking the judge to reconsider his prior decision. On the basis of a correct understanding of the facts, right? Or we will be on that at this point though. And if in fact we obtain the explanation from Judge Chessler that either he did or he did not understand that the dismissal would then prevent a subsequent suit from being filed, aren't we back here before your honors in order to determine now that we know that was there an abuse of discretion? Or maybe, but one questions whether I don't know whether we'll be back here or not. I don't know whether they'll take another appeal, but at least we'll have the benefit of an order from the district court, which is founded on an express statement that takes account of these pioneer factors on a correct understanding of the facts. Right? That's a different state of affairs. So we're at right now. The difficulty I have with the argument is or the position that you're asserting is that it assumes that Judge Chessler was not aware of the facts. It assumes that he was not aware that the statute of limitations had run. And I don't know that that is a correct assumption. I think it reads an awful lot into one sentence in his order. I'm not sure

. There was an emotion to reinstate five and a half months or almost six months later where there was no explanation regarding why there was a delay. There was no proof of service of process. Was that another post? Motion to reinstate? Was that unopposed? Yes, the motion to reinstate was on a post. Well, then again, if the motion to reinstate was unopposed, why not they send it back to Judge Jethseler and have him take a look at this saying, we're the statute of limitations and- And apply the pioneer factors. Yeah, and you're failure to oppose the motion in the first place. I'm not hearing any argument or prejudice that would suggest that that would be a problem. Your Honor, I don't think it would be a problem. I don't know that I can stand before this court and say it would be a problem to go back and ask Judge Hester. Essentially, did you know what the impact of your decision was going to be and if you did not know that, would you have reached a different decision? Well, isn't that the very thing that is involved in the exercise of discretion is understanding the impact of a decision? I mean, that's why the Supreme Court called it out as a- as a factor that needed to be considered, presumably, right? I mean, prides requires that you give an explanation when you were on a 60-B motion. Which wasn't given. Well, of course, at- at that point all the judge was looking at was the factors regarding why hadn't served as a process been accomplished? I don't think anybody in the courtroom, even Mr. Hadad, is prepared to say those were good reasons. He himself said, look, what happened there is, you know, to use his word, it was inexcusable. So there's bad stuff there, but that doesn't really go to the point we're pressing on you right now, which is, is this something for the district judge to handle? In the first instance, having it made clear to him, wait a second, dismissal means there's no more case. There is no refiling on it. It's not without prejudice, it can't be. By definition, that's exactly right. It's a bit of a misunderstanding. If in fact that's what occurs, then we were asking the judge to reconsider his prior decision. On the basis of a correct understanding of the facts, right? Or we will be on that at this point though. And if in fact we obtain the explanation from Judge Chessler that either he did or he did not understand that the dismissal would then prevent a subsequent suit from being filed, aren't we back here before your honors in order to determine now that we know that was there an abuse of discretion? Or maybe, but one questions whether I don't know whether we'll be back here or not. I don't know whether they'll take another appeal, but at least we'll have the benefit of an order from the district court, which is founded on an express statement that takes account of these pioneer factors on a correct understanding of the facts. Right? That's a different state of affairs. So we're at right now. The difficulty I have with the argument is or the position that you're asserting is that it assumes that Judge Chessler was not aware of the facts. It assumes that he was not aware that the statute of limitations had run. And I don't know that that is a correct assumption. I think it reads an awful lot into one sentence in his order. I'm not sure. When you say it reads a lot into it, it's difficult and I've read your brief per jargon here. So maybe it's the best argument you've got and that's fine too, but it's hard to square the words without prejudice and refile within this applicable statute of limitations with any understanding except the understanding that there could be a refiling. Now, if you've got a basis for helping us understand that there's a different meaning to that other than what we've discussed, I'd be pleased to hear. I have no other explanation for that other than he did not want his order to be interpreted as allowing there to be a refiling of the complaint where somehow the statute of limitations was now waived or that there was going to be. You could look back in time and say because the original complaint had been filed within the statute of limitations, any refiled complaint would also be a timely filed. Beyond that, I do not know. But I think it's difficult to believe that with the moving papers that were before Judge Chessler, he did not understand that this arose out of a motor vehicle accident. A two-year statute of limitations was applicable that the accident was back in August of 2009. And certainly he may well once this is clarified, assuming he didn't understand because you're right. Maybe this is a kind of a circumlocution that he really understood it and this was his way of saying I understood. I suppose that's conceivable and have a hard time conceiving it, but assume it is, then don't you end up just where Chief Judge McKee is indicated you win, but you win on a clarified record. And if you're honest think that it's necessary to send us back to Judge Chessler for that clarification, what I don't think, at that point though, do we then ask Judge Chessler to, if in fact you was mistaken, to now reconsider his prior decision as to whether or not this should have been dismissed, if in fact you was under the mistaken belief that the case could have been refiled. Or does now that his explanation of the order have to be viewed by this court and taken into consideration with the other factors in pioneer in order to determine whether or not the case should remain dismissed. And there'd be something he has to work out of, we have to work out in our order, but the other fact thing that seems to be this is very different than pioneer. Link, as I mentioned earlier, was a case that was mentioned in Bona and Mr. Hedad mentioned that there was a lot of petition for relief under 60, will 60 be in link that may be an attendee way of argument now because in pioneers, because Jordan said the pioneer discussion was all around 60 be, you know, wasn't 60 be case. So I'm not sure how big a distinction that is about Link, but beside that, I don't know of any of our cases, we have a situation where there's one of the tax revolutions will have run, putting a party out of court if the 60 be believed was not granted. In addition to that, the motion to grant relief is filed without opposition. Now, if there's a case out there where I just record Judge has denied a 60 be motion dismissed the complaint. And while the test of limitations that run and there was no opposition to granting relief at the time the relief with the 60 be motion was filed, maybe you can put me to that case. Your run of the timing of this was that the motion had been filed. There was obviously no service on Amanda Baldwin at that point in time. There was, I don't believe, any opportunity to respond to the motion to reinstate and substitute service, although we may have heard about it. When I went back, because I reviewed that myself, say, well, what was the timing? This file went to the, well, came from an insurance carrier and was in our office on July 16th by July 26th. That the order or the motion to reinstate and substitute service had already been denied. So you're saying you didn't have time to file the report? I don't believe that there was enough time that we could have responded to if you cross. Yeah, July 16th was the date that that the file had been assigned by an insurance carrier, not sure how they got their information at that point. And July 26th, that motion was already was denied. Why is it in the same rule be applied to you in terms of if there's a problem with the attorney or the attorney's process that builds in delay? Well, the client is still stuck with the fact that the attorney for whatever reason did not file an opposing motion to the motion for 60 B

. When you say it reads a lot into it, it's difficult and I've read your brief per jargon here. So maybe it's the best argument you've got and that's fine too, but it's hard to square the words without prejudice and refile within this applicable statute of limitations with any understanding except the understanding that there could be a refiling. Now, if you've got a basis for helping us understand that there's a different meaning to that other than what we've discussed, I'd be pleased to hear. I have no other explanation for that other than he did not want his order to be interpreted as allowing there to be a refiling of the complaint where somehow the statute of limitations was now waived or that there was going to be. You could look back in time and say because the original complaint had been filed within the statute of limitations, any refiled complaint would also be a timely filed. Beyond that, I do not know. But I think it's difficult to believe that with the moving papers that were before Judge Chessler, he did not understand that this arose out of a motor vehicle accident. A two-year statute of limitations was applicable that the accident was back in August of 2009. And certainly he may well once this is clarified, assuming he didn't understand because you're right. Maybe this is a kind of a circumlocution that he really understood it and this was his way of saying I understood. I suppose that's conceivable and have a hard time conceiving it, but assume it is, then don't you end up just where Chief Judge McKee is indicated you win, but you win on a clarified record. And if you're honest think that it's necessary to send us back to Judge Chessler for that clarification, what I don't think, at that point though, do we then ask Judge Chessler to, if in fact you was mistaken, to now reconsider his prior decision as to whether or not this should have been dismissed, if in fact you was under the mistaken belief that the case could have been refiled. Or does now that his explanation of the order have to be viewed by this court and taken into consideration with the other factors in pioneer in order to determine whether or not the case should remain dismissed. And there'd be something he has to work out of, we have to work out in our order, but the other fact thing that seems to be this is very different than pioneer. Link, as I mentioned earlier, was a case that was mentioned in Bona and Mr. Hedad mentioned that there was a lot of petition for relief under 60, will 60 be in link that may be an attendee way of argument now because in pioneers, because Jordan said the pioneer discussion was all around 60 be, you know, wasn't 60 be case. So I'm not sure how big a distinction that is about Link, but beside that, I don't know of any of our cases, we have a situation where there's one of the tax revolutions will have run, putting a party out of court if the 60 be believed was not granted. In addition to that, the motion to grant relief is filed without opposition. Now, if there's a case out there where I just record Judge has denied a 60 be motion dismissed the complaint. And while the test of limitations that run and there was no opposition to granting relief at the time the relief with the 60 be motion was filed, maybe you can put me to that case. Your run of the timing of this was that the motion had been filed. There was obviously no service on Amanda Baldwin at that point in time. There was, I don't believe, any opportunity to respond to the motion to reinstate and substitute service, although we may have heard about it. When I went back, because I reviewed that myself, say, well, what was the timing? This file went to the, well, came from an insurance carrier and was in our office on July 16th by July 26th. That the order or the motion to reinstate and substitute service had already been denied. So you're saying you didn't have time to file the report? I don't believe that there was enough time that we could have responded to if you cross. Yeah, July 16th was the date that that the file had been assigned by an insurance carrier, not sure how they got their information at that point. And July 26th, that motion was already was denied. Why is it in the same rule be applied to you in terms of if there's a problem with the attorney or the attorney's process that builds in delay? Well, the client is still stuck with the fact that the attorney for whatever reason did not file an opposing motion to the motion for 60 B. Believe this thing. Well, we didn't file a motion because of the way the workflow from the attorney to the attorney to the client. Well, it wasn't to the client was to the insurance carrier. So it wasn't to the defendant. It's not the client is insurance carriers. Excuse me. The real client is the insurance carriers and there are all kinds of arguments about that. But you're you're you're here because of the insurance company. No, well, you're on or I'm here because of a ball and okay now her defense is being provided by an insurance carrier. That's that's absolutely true. So I would have to go back to see if anybody even had that motion to the motion to reinstate and the motion for substitute at service at that point in time. I don't know that we even had that motion or that we simply found out about it when we opened up a file and we need to file an answer and we find out we can't file an answer because this complaint has been dismissed. On page 8 of the reply brief the plane of the search that there's no prejudice to your client if the case is reinstated. I presume you'd have a different take on that. Do you want to say what the prejudice would be and would you be expressing that the judge. Chessler if you had the opportunity on a remand. Sure. First the when I was reading the cases I was struck by the fact that it's not actual prejudice that has to be shown it's the danger of prejudice and that's what the court speaks about. And what is the danger of prejudice. Well I can't tell you what actually may happen in the if this case is reinstated and then we go back and we try to get what we normally get when we defend bodily injury claims. But I know that this accident was in August of 2009. Are we going to be able to get the medical records that we normally get? Are we going to be able to get witness statements from the witnesses that I would normally. Those are the kinds of problems that automatically flow from any delay with the courts. We said that kind of prejudice is not the kind of prejudice that we're looking for under this kind of analysis has to be specific witnesses died something of that sort. I can't represent that. I can't represent that because my client didn't get the lawsuit didn't didn't know about it. That she destroyed documents and thought there was not going to be a lawsuit and now there's prejudice to her. I cannot make that kind of representation to the court. I do not know what the impact of this delay is going to have on the litigation

. Believe this thing. Well, we didn't file a motion because of the way the workflow from the attorney to the attorney to the client. Well, it wasn't to the client was to the insurance carrier. So it wasn't to the defendant. It's not the client is insurance carriers. Excuse me. The real client is the insurance carriers and there are all kinds of arguments about that. But you're you're you're here because of the insurance company. No, well, you're on or I'm here because of a ball and okay now her defense is being provided by an insurance carrier. That's that's absolutely true. So I would have to go back to see if anybody even had that motion to the motion to reinstate and the motion for substitute at service at that point in time. I don't know that we even had that motion or that we simply found out about it when we opened up a file and we need to file an answer and we find out we can't file an answer because this complaint has been dismissed. On page 8 of the reply brief the plane of the search that there's no prejudice to your client if the case is reinstated. I presume you'd have a different take on that. Do you want to say what the prejudice would be and would you be expressing that the judge. Chessler if you had the opportunity on a remand. Sure. First the when I was reading the cases I was struck by the fact that it's not actual prejudice that has to be shown it's the danger of prejudice and that's what the court speaks about. And what is the danger of prejudice. Well I can't tell you what actually may happen in the if this case is reinstated and then we go back and we try to get what we normally get when we defend bodily injury claims. But I know that this accident was in August of 2009. Are we going to be able to get the medical records that we normally get? Are we going to be able to get witness statements from the witnesses that I would normally. Those are the kinds of problems that automatically flow from any delay with the courts. We said that kind of prejudice is not the kind of prejudice that we're looking for under this kind of analysis has to be specific witnesses died something of that sort. I can't represent that. I can't represent that because my client didn't get the lawsuit didn't didn't know about it. That she destroyed documents and thought there was not going to be a lawsuit and now there's prejudice to her. I cannot make that kind of representation to the court. I do not know what the impact of this delay is going to have on the litigation. I will only know that if it's reinstated and that we're litigating it and I see what my difficulties are at that point. You can make that argument to Judge Schessler. It seems like a perfect resolution here. You'll have the chance to dig into all that. You go before Judge Schessler. If the reference had been destroyed, there's an eyewitness there who talks about we have this rear-in collision but the breaks were slammed down. So maybe there is contribute to a negative and something that sort. That's the kind of thing you can argue to. Judge Schessler, you can't have that witness available. Not because of witnesses. Either dead or unavailable. You can't find that witness. Medical records have been lost. That's exactly the kind of thing that would be helpful to have fleshed out in the hearing to this court. And he may say, okay, well, I'm sorry about this. It is by young, but it's not fair to the other side not to reinstate this. This lawsuit is the way the cookie crumbles. What he may say, well, what I'm hearing about prejudice is not so great as to overcome. The prejudice of knocking out what appears on its face to be. At least a horribly meritorious claim. And therefore, I'm going to grant the 60B motion, which I would have done initially had I known I was putting out a quote when I said without prejudice. That seems to me that's the first way all around it doesn't deprive you or your client of any differential may have or any evidence you might have. It doesn't deprive Mr. Bayana of her lawsuit based upon the. I won't call the the the absence of conductive of Mr. Hall when. Here in the law from this was either with which is as I said, it's the worst I've seen in 30 years on the bench. There's never seen anything like it before he wasn't there was almost no a client training relationship because he did absolutely nothing zero. It bagels the mind

. I will only know that if it's reinstated and that we're litigating it and I see what my difficulties are at that point. You can make that argument to Judge Schessler. It seems like a perfect resolution here. You'll have the chance to dig into all that. You go before Judge Schessler. If the reference had been destroyed, there's an eyewitness there who talks about we have this rear-in collision but the breaks were slammed down. So maybe there is contribute to a negative and something that sort. That's the kind of thing you can argue to. Judge Schessler, you can't have that witness available. Not because of witnesses. Either dead or unavailable. You can't find that witness. Medical records have been lost. That's exactly the kind of thing that would be helpful to have fleshed out in the hearing to this court. And he may say, okay, well, I'm sorry about this. It is by young, but it's not fair to the other side not to reinstate this. This lawsuit is the way the cookie crumbles. What he may say, well, what I'm hearing about prejudice is not so great as to overcome. The prejudice of knocking out what appears on its face to be. At least a horribly meritorious claim. And therefore, I'm going to grant the 60B motion, which I would have done initially had I known I was putting out a quote when I said without prejudice. That seems to me that's the first way all around it doesn't deprive you or your client of any differential may have or any evidence you might have. It doesn't deprive Mr. Bayana of her lawsuit based upon the. I won't call the the the absence of conductive of Mr. Hall when. Here in the law from this was either with which is as I said, it's the worst I've seen in 30 years on the bench. There's never seen anything like it before he wasn't there was almost no a client training relationship because he did absolutely nothing zero. It bagels the mind. Man, that's not I shouldn't be lecturing to you. I'm sorry and your best life is on. You're out of a mindful of fact that a long time ago I was told that say what I should say about my adversaries case and be very careful what I say about my. I try I try to abide by that rule and of course this brief and this argument steps right over that line on multiple occasions, but. To to my adversaries credit he has fallen on the sword and explained to the to the court what happened here it's because of the young associate is office and the question is when we look at the other factors is that enough to get over a 60 to to to to say that 60 be one. Excuse me. The question has been met. I do not think it is in this case. The year honor has mentioned that there are there is another available remedy to the plaintiff in this case she is not without recourse. She chooses to pursue that remedy. I think unfortunately that's where this case needs to go and not with a reinstatement of the complaint against a mandible. Well it wouldn't necessarily be a reinstatement of the complaint if we remanded it would be for the district judge to consider this and you'd have the opportunity to make your 60 be argument and you might very well prevail right correct. Right. Okay. Thank you. Thank you. Use of time for a better call. Three minutes. Okay. That much. You want to show you on it? Sure. You're good. I think one of the explanations might be look this was a dismissal under section 4. Amma the federal rules of civil procedure. And for Amma reads that if a defendant is not served within 120 days after the complaint is filed the court on motion or on its own after notice the plaintiff must dismiss the action without prejudice. Against that defendant or order that service be made within a specified time. Probably what should have happened here was that the court should have said there needs to be service within an expiry of time and maybe that's what the court needs to consider but I can at least understand why he dismissed without prejudice. Judge you're absolutely right but there's also other things he could have did. He could have brought the attorney in sanctioned him

. Man, that's not I shouldn't be lecturing to you. I'm sorry and your best life is on. You're out of a mindful of fact that a long time ago I was told that say what I should say about my adversaries case and be very careful what I say about my. I try I try to abide by that rule and of course this brief and this argument steps right over that line on multiple occasions, but. To to my adversaries credit he has fallen on the sword and explained to the to the court what happened here it's because of the young associate is office and the question is when we look at the other factors is that enough to get over a 60 to to to to say that 60 be one. Excuse me. The question has been met. I do not think it is in this case. The year honor has mentioned that there are there is another available remedy to the plaintiff in this case she is not without recourse. She chooses to pursue that remedy. I think unfortunately that's where this case needs to go and not with a reinstatement of the complaint against a mandible. Well it wouldn't necessarily be a reinstatement of the complaint if we remanded it would be for the district judge to consider this and you'd have the opportunity to make your 60 be argument and you might very well prevail right correct. Right. Okay. Thank you. Thank you. Use of time for a better call. Three minutes. Okay. That much. You want to show you on it? Sure. You're good. I think one of the explanations might be look this was a dismissal under section 4. Amma the federal rules of civil procedure. And for Amma reads that if a defendant is not served within 120 days after the complaint is filed the court on motion or on its own after notice the plaintiff must dismiss the action without prejudice. Against that defendant or order that service be made within a specified time. Probably what should have happened here was that the court should have said there needs to be service within an expiry of time and maybe that's what the court needs to consider but I can at least understand why he dismissed without prejudice. Judge you're absolutely right but there's also other things he could have did. He could have brought the attorney in sanctioned him. He could have did he could have brought him in and and and yelled at him. He didn't have to dismiss the complaint. What I heard on Mr. Well, I'm in under four. I mean, he didn't have to bring him in necessarily but the point is your district judge you got something that's been sitting around. It's now there's a rule that specifically applies to it. He was perfectly within his rights to call the parties before him after 120 days. He certainly was he certainly was judge but if you read his July 26 order he was angry and rightfully so that you mean January 26. I'm sorry. You're January 26. July 26 order denying the 60 B motion. I had attorney hoe for for ignoring his order. That doesn't betray anger. It's just a state I read it. It's just the judge saying hey, you didn't serve. You got to notice to show cause it didn't show up and in your motion to reinstate you've given us you've given no reason for that for the delay. So I'm not reusing. I would have been angry but that's not the order I would have written. That's the sound angry. It just sounds pretty matter of fact reflecting the facts and you know. If the judge if one can presume the judge did know. What would be the abuse of discretion if the judge had understood that this was going to end up as a dismissal with prejudice and concluding that under those facts. You're just you know that's tough. You live with the lawyer you pick and if the lawyer blows the statute of limitations that falls on you not on the other side. There's three ways where I can pinpoint how judge Chester abuses discretion. And I want to urge this court to look at the facts and abuse his discretion. Yes. All right. Go ahead

. He could have did he could have brought him in and and and yelled at him. He didn't have to dismiss the complaint. What I heard on Mr. Well, I'm in under four. I mean, he didn't have to bring him in necessarily but the point is your district judge you got something that's been sitting around. It's now there's a rule that specifically applies to it. He was perfectly within his rights to call the parties before him after 120 days. He certainly was he certainly was judge but if you read his July 26 order he was angry and rightfully so that you mean January 26. I'm sorry. You're January 26. July 26 order denying the 60 B motion. I had attorney hoe for for ignoring his order. That doesn't betray anger. It's just a state I read it. It's just the judge saying hey, you didn't serve. You got to notice to show cause it didn't show up and in your motion to reinstate you've given us you've given no reason for that for the delay. So I'm not reusing. I would have been angry but that's not the order I would have written. That's the sound angry. It just sounds pretty matter of fact reflecting the facts and you know. If the judge if one can presume the judge did know. What would be the abuse of discretion if the judge had understood that this was going to end up as a dismissal with prejudice and concluding that under those facts. You're just you know that's tough. You live with the lawyer you pick and if the lawyer blows the statute of limitations that falls on you not on the other side. There's three ways where I can pinpoint how judge Chester abuses discretion. And I want to urge this court to look at the facts and abuse his discretion. Yes. All right. Go ahead. One is by failing to initiate the factors and pioneer and analyzing them in this case. Even though attorney hoe didn't do in his brief. I don't think respectfully it allows her to touch or not to do it either. I think this court already said specifically you abuse your discretion when you don't do that. He abuses discretion when he made it clearly erroneous finding a fact six months. Although not a big deal six months. And this is fine. Not at all. Not at all. And and and number three. If he had did the analysis under pioneer he may very well have found that yes. Okay. Me and Colpa attorney came in gave me a very good explanation. I'm going to allow to come I'm going to allow to come forward because of the innocent plaintiff and because counsel just got into the case. I'm going to allow it to continue which he may do. I'm just urging this court not to send it back down to the judge's test or to for for your honors to take a look at it. Look at the factors look at the cases and make a decision so that way we can you know that's not a lot of the mind. That is amazing. That's an amazing argument. Yeah. I thought you would be jumping in the chance of a man. I'm going to be a man. I'm going to be a man. I'm going to be a man. I'm going to be a man. I'm going to be a man. I'm going to be a man. I'm going to be a man. I'm going to be a man

. I'm going to be a man. I'm going to be a man. Go ahead and take a look at that. Sa�, is he? Have you got any webcam? Sorry, comprised. Can you take a look? It server seems to come to end. Cast up? No like. Thank you