please the court my name is tim highland i'm here to represent society insurance company we are here before you today because of the district court's prejudicial dismissal of society's inner pleader three and a half years after it was filed  more than two years after society was discharged from all liability and dismissed from the case with prejudice the district court determined that he could vacate his prior orders and dismissed to the inner pleader for two reasons one the claimants were not making good faith efforts to resolve their claims in the in the inner pleader action into his finding that the inner pleader now three and a half years old was filed prematurely it's and so what how would you explain the district court's legal basis because for just saying it's earth would have to understand what the legal basis was well judge i agree with you i don't really think he had a proper legal basis but the only legal basis he gave were to he states a right on the front of his order and they were that the parties before him which were only the claimants at the time had not in good faith sought to pursue their stipulation to resolve their claims by or agreement so is that likely for failure to prosecute is that the basis your honor i would agree with you that it's a failure to prosecute but the district court didn't want to go there because the district court was afraid of his order states that if he says it was a failure to prosecute some of the claimants who for the majority of the time had been represented potentially would lose their claims because once he dismissed the case he had to find a way that they could still bring their claims now well after the two the saving clause would apply to them even though they were defendants in even though they were descendants an inner pleader and refining it we told him we weren't sure that that was the case that's not what the statute said but at the time that he acted without going past what's happened since at the time that he acted that was what they were as they were defendants and it was a serious question of prejudice as to whether or not they would be able to maintain their claims which is actually the position of the to gross claimants that they're the only one still having a claim because they filed a separate independent lawsuit which goes against the very bases of an inner pleader action the inner pleader action is designed for society as a stakeholder facing multiple claims  everybody in one one litigation deposit the money and say decide how it gets split up and said now society is in the position of getting the money handed back to them late just let others serve it to technical exactly correct we were not a party but i was not not going to show up in front of the district court when he ordered that we appear and so we appeared and i had that hearing the district court said he was inclined to dismiss this case and he ordered parties to submit briefing by january twenty ninth of two thousand and sixteen as to why you should not do it i requested on behalf of society your honor can society file a brief because we're not a party  to the district court and and given the fact that we were the only ones at that hearing that seemed opposed to him dismissing it because that a gross defendants or claimants were represented at that hearing the other parties were probe perc and he recommended you better get an attorney but so we filed society similar to an amicus telling him judge you shouldn't dismiss it for basically all the reasons we've told you that the gross defendants filed something saying that then all of us and he ended it right the district court got our brief in january didn't act on it and instead issued in two thousand and sixteen in order for a scheduling conference and specifically told the parties you shall do before this conference and he put out disclosure statements need for settlement and other things he literally ordered them if you're not doing it on your own i'm setting deadlines you have to start this case going then we showed up for the scheduling conference again society filed something saying judge we're not a party do we need to show up and the district court said yes you will show up for the scheduling conference and he what he told us at the scheduling conference was have the party settled no i'm going to order you to go and continue a settlement conference here today but unfortunately he tipped his hand and he said and if not i'm going to dismiss this case well the settlement conference for about an hour in the in his jury room didn't go anywhere when everybody knew he was going to dismiss th case we came back in and he said on september first i'm going to dismiss the case and his order came out september eighth two thousand and sixteen dismissing the case and ordering the money back to society assuming that he had the right to dismiss the case where else would the money go well your honor there's there's a couple issues inherent in that first off society does not believe he has the ability to dismiss in the way he did which was vacating all the prior orders making society back a party by vacating its dismissal and ordering the money back to us by vacating the the the order to deposit the funds he had an ability in my opinion to find that the parties ha failed to prosecute they no longer had claims and then the court most likely could have either asked whether or not the money should be donated or still or the money returned to society but now there is no pending claims against the money society no longer is facing multiple claims and stead we get the money returned as if there had never been an inner pleader and we're now facing three and a half years later back in the same exact place with multiple claims multiple claimants  the district court in my position your honor should have done exactly what he started to we should have ordered the claimants before him to prosecute the case and he could have ordered the things that he did he could have ordered never densher hearing come in on this date and we're going to an evidentiary hearing and i will decide what your damages are he could have changed the focus of the case from letting the claimants run the case which they weren't doing and the court found that they in good faith was doing it so he  agreement but he but basically said the parties in front of him the claimants without society because we're already done had not prosecuted the case one way or another to reach a decision so at the end he started the process of ordering them to  by holding this money again couldn't they file another in or pleader in the state court well it's possible we could file another in or pleader your honor but we're prejudice in several ways first off we now have the money back and we're still facing multiple claims so the question is do pleader we could fall another in a pleader in the state court and we face the argument that that a gross claimants are already making to you that it's an improper in or pleader because the other parties no longer have claims because the two years statue of limitations had passed we society's relationship to its insured arizona law provides under the mic runnels case that we have a good faith bad faith safe harbor that if we tell the parties we think there's multiple claims which we did we asked them to resolve it we told them that if not we're going to enter plead and we promptly enter pled the money then under arizona law there's a safe harbor against the insurer making a bad faith claim against society that we mismanaged his policy we lose that now potentially because now we're just where four years after the accident and and if the insured suddenly finds himself facing multiple claims in excess of the limits we could be in bad faith and it's really to be in bad faith if this was the result of judicial orders well i guess i'd be arguing that to another judge if they made the bad faith claim but the real thing that pertains is it also potentially opens up a big window with regard to the claimants other than that a gross that the claimants that the gross claimants filed in an independent action because they said we believe that we're going to go after mr spares the insured personally for things over his policy limits so they have the ability to do that now i have other claimants including insurers who were dismissed out of the inner pleader who were bringing subrogation actions who really didn't care anymore but now because it's been vacated all the orders vacated potentially have claims so i have more claimants than i had at the time of the inner pleader dismissal and the question is can the parties who didn't file claims independently file claims now for amounts in arguably judge they are barred by the statute limitations but but not if the district courts theory is filed which is they can simply refile their action because the district court's order albeit in my opinion dicta because he dismissed the case not they were going to limit it to limit it in any way to what was only a political at the time and then i still have three claims and in state court some parties limited some parties not and society still holding the bag trying to decide how to apportion these claims and if i file a new winner pleader i have another action with another judge trying to decide all the same issues when i had it all in front of the district court and all he had to do was force them to litigate if we agree with you and honor and have him finish the inner pleader as we believe the district court should have done rather than simply deciding he wasn't going to deal with it anymore thank you thank you morning honors mark pryor for brendan gross i think that what's missing that i'd like to point out is society was a party to a stipulation that the federal court follows the district level and that is at the time the inner pleader was filed all the parties including society at that time file was stipulated in that said there were one of two ways we were going to resolve this dispute it we were not going to go through the typical interpreter process we were only going to resolve it either by agreement of the parties vacated that and i and i i the court obviously did it if that's what's written in the order but my only point was that society is now making the following argument they're saying that that well they're making many aryans but amongst them are that somehow this case ought to be remanded not this court if it's remanded the purpose of an inner pleader is to try to resolve things in one place by the stipulation the society agreed to there was going to be a state court action and there was going to be a federal court action in the federal court action was relying on the state court action if we reverse it changes nothing about the fact that this is being handled in multiple that again in multiple jurisdictions because it's going forward as a case and nothing about an inner peace or an action safe harbor exists but it doesn't this has to anything they do exist only as to whether they give equal consideration to multiple demands it doesn't exist to the broader area of arizona baffle flaw of all areas of equal consideration they have to give to there is something that they're losing i mean that's what their argument is which of course your honor can't be true they have filed the inner pleader they've been dismissed initially from the inner player in or peter's now been dismissed to whatever degree safe harbor exists and i absolutely agree not that they have complete say far from bad faith because of some of their actions in this case towards their insured but to whatever degree safe harbor exists that existed at the moment they fight if and so does is there an arizona case that holds that because opposing counsel say well i can argue that to a judge but is there  a case created safe harbor by the terms of that case and it says if they file in or pleader in a timely manner and include all parties and defend i was the district court pointed out there defending our reservation rights this is also an issue that whether that's considered a proper defense under the safe harbor is not in itself was a district court's authority to decide yes what was the legal authority so you have a civil action that's properly brought and meets all the criteria  and the district court didn't dismiss it on the basis of failure to prosecute so what is what's the legal authority of the just your card to just mess at unfortunate honor it appears as though the court bounced around some sort of a argument without explicitly saying the court's purpose behind it but i would but let me broaden that answer out if i can i believe it's an abuse of discretion standard because of the cases that were cited and i thought that was agreed to but the question is does the court have the true so don't slip into the easy question i have learned from sitting behind in the pews this morning not to try to slip inside from any questions so i would do a better job of trying to answer you but i it finds that the parties are not following its orders which is what the court ultimately found as the right to say that it's going to vacate the it's a sanction why don't believe was the sanction i think the court on so so i am trying to find the legal story that  concerned about your honor i would i would only say i would disagree for this reason the exact state court action that address this issue based upon the stipulation the parties was going forward in other words at the time that we have a  parties were in state court all the know the parties chose not to file in state court and they didn't follow the suddenly of the parties that agrees hard to abstain from something from a state court proceeding that isn't going forward because in our view of this or pleader was filed and at the time the interview that was filed we have iran for death claim it's my client's a mother and some of the sons of the person who died we are not we're not stuck by are bound by which i didn't finish explaining before which is my my failure but we're not bound to only the five hundred thousand dollars society has an obligation to defend indemnify they're putting their five hundred thousand dollars of indemnity into the inner plate and saying this is it but my client has a right to pursue a collectible defendant for wrongful death case so when the owner played it was filed the stipulation made very clear that we had the right to pursue in state court and this is how we're not going to grieve do it in federal employee or because then i'm going after litigating to places so we will stipulate that we will see that if we eat come to an agreement that's the best and if we can't come to agreement file and state court now a bunch of people who have nothing near a wrongful death claim that choose not to hire a lawyer and choose not to file that's that violation file follow the stipulation of file a state court action can three years later still be a stick in the mud not moving the case or because they chose not to follow the stipulation of all the parties and the stipulation was either we come to agreement or we go to state court now one party with the wrongful death claim chose to follow that and file in state court if the other parties choose not to file in state court they have no that was their choice the obvious reply laugh and say yeah but to be fair it i think they are out of luck but i want it to be  some sense of fairness with that we have a wrongful death claim and with who are represented and are doing everything they can to protect their rights and then we have people with i think the rector's clear far less severe just smaller personal interactions that are just guiding along and eventually the district court says a lot only one party has filed a lawsuit no one else is moving this case forward there's no purpose of having the inner plate or i don't have to keep going with that and i think the federal court if they admit is their argument that somehow they lose something by the dismissal of this inner peter they were here in this inner police are making arguments such as the court should protect the other claims against our insured now they're one day going to have to answer to why they made an argument to the court court of appeals should bring back claims against their insurers so that they can have the comfort of an interview or they're making arguments that maybe the five hundred thousand dollars that they put in should go back to society that doesn't protect their insured their insured who may well be collectible is now collectible for an additional half a million dollars so the inner pleader has the ability to potentially resolve whatever portion of money is put in it doesn't so why are you for i have two questions did i just did anybody ask the it was a good idea but we in no way nobody requested it before the judge so on it's a lot of his own right you care if this inner pleader is is reinstated why do you care but you know you're right back where you were before and you never even asked to change that says grow well we didn't ask change status quo because until the court a few months before the dismissal said the court was unhappy with our progress we thought we were going to handle this in state court that was the stipulation the state court judgment we don't venture we get a verdict deciding how that money supposed to be a portion and then i'm going to go to to get a verdict for any additional money we're litigating this thing now instead of by stipulation at the outset in one place where they're going to agree or go to state court now all of a sudden i have to go back down because the judge felt the word me the pleader had nothing to do with the garage policy it was just the liability what i my only point is were litigation in three places you would you would anyway two places we were going to have to litigate in arizona state court which is what we thought and we thought we're going to litigate was not so let's forget was constant state court ok now if this court sends it back down because judge wait no longer apparently thinks does not want to time the whole idea of it will be considered one of the express ideas and purpose of the inner polluters to avoid multi jurisdiction but a geisha and the parties agreed the way to avoid multi year section litigation here was by their stipulation to put it in state court which is exactly what you did that's what we did the fact that parties with much smaller claims chose to do not thing they're not even here they're not even at police in this case they literally filed a one page jointer they have society who who said presumably there to protect their insurer are going to bring their claims back they've so they're not here of course they haven't been anywhere because they can be the stick in the mud with little cases and if they wanted to protect their rights they could do what people with personal injury lawsuits do all the time and that is file a lawsuit and i don't think it's asking too much to say if we're going to agree to keep in state court we ought to keep in a state level and the district court expressed its concern about things moving forward you make the argument that in fact it was because you have an waited to file the lawsuit was filed the lawsuit we have been in state court in arizona we have to immediately follow joint report which is exactly what we did then we have to immediately find stiff piles stipulated deadlines which is exactly what we did we did what we're supposed to do in state court in my view the state court action was filed all but a month before the statute of limitations so most of what the court presumed or believed to be delay was not the way it was a matter of we unable to work it on the first part and that has come to an agreement with the parties who are represented eventually you go we've got a file and that's our other option at that point we started filing so my answer is i don't understand where society thinks they lose protection in this case and for my client it is a huge burden to go back down the litigators thing in two different places you know with parties who have said and i guess my concern is we need to know why what the district court it was not an error and i've heard sanctions and i've heard abstention and i haven't heard a legal reason i can pass one last question for you and that is the district court also reported to extend the statute of limitations for six months and one of the parties i forget which one now actually filed right within that six month period do you have a view as to whether that extension was proper yes my view is that it was not my view is you can't sit on your rights for everyone there's a expressed if you lace it to the contrary right and yet that party is not before this court saying that that party has been basically nowhere ever for the parties not all the only one party filed and the court did allow it under the same statute in those cases have just been consolidated in the last well there are so so those cases are proceeding those are in the stake or in the state and that's something that happened after the dismissal that happened outlaw if so why wouldn't it be the most appropriate thing for us to remain handed to the district court to reopen the inner pleader action and let these cases move their way through the state  in as as always happens in your plead your case to the degree if it was remanded to go back to the stipulation of the parties which is the district courts all of the state court to determine the outcome that's exactly that's all we are asking for in the you guys are on the same side i mean i'm a district judge i've got in a pleader cases hanging around for years waiting for the underlying disputes to be this to be this but i would just like this to be addressed in one location one time for my client after a lot of years and i think it's easily accomplished thanks ok thank you i don't remember we have some time for forty two seconds  that's not correct the court's order docket seventy one july twenty ninth two thousand and fourteen that discharged society specifically entered the injunction that normally gets entered and said that the parties were restrained for instituting any proceedings against the policy the disputed funds so the state court action was simply to determine their total amount of liability and anything they could recover over and above what was in the inner pleader it was not going to be as  ask a parallel action with all the parties to judge all the actions so i just wanted to clarify that that the order did include the injunction thank