the district court in this case subs today no negligence rule in place of excusable negligence under rule sixty b that was there the court also applied a misguided view of the law in reading or misreading the e mail sent out by the district court and the judge weighed that strictly on that although the judge in his decision gave lip service to the four criteria from the pioneer case the court only addressed the one criteria of excusable not negligence the third criteria and then only tested it as to whether the attorney had made any errors all in reading the minute orders i just i mean you call them e mails but they are docket entries i mean this isn't like correspondence between the court and the parties that you might over look these were docket entries right there yes there were docket and i mean i think people net limits a lot worse than two days of filing something light and actually kind of call on two weeks after it was due saying i need another week to get it in but but this wasn't just he overlooked an e mail he had there was docket entry that with an order that said you have to file this in thirty days right he well he was in court on april twenty first when judge selma the district court judge issued his ruling and gave thirty days to amend he then got a docket entry two days later that made reference to clerical error and he misread that into believing he was given two additional days to file his second amended complaint and that was there but under the criteria of sixty be given the two days gap and given the other three criteria there is no prejudice so the other side there the length of the delay was only two days and the reason for delay and whether he acted in good faith and i don't think it's a challenge that he acted in good  faith adding all that together that's excusable neglect under the line of cases that starts with the pioneer case from the supreme court through the on bank decision in the pink a versus andrus case up to the  discretion or looking at the discretion of the court that you're going to get a different result with every district court judge and i thought the hunch and case put the flesh on the bone and said we construe sixty be liberally with an eye the appeal is from the denial of the sixty the motion and also if the court were to not to deny that aspect of it it's an appeal from the grants of the twelve b six motion for the first amended complaint but that would put this court in the position of determining the validity of the first amend the complaint after the trial judge had already granted leave to a man and after a second amended complaint had already been filed filed late but it is in the record and on the second amend the complaint which is basically the opposite of the first amended complaint in that the first amended complaint was very brief the second amended complaint goes on for thirty plus pages comply out that you filed two days late right ok because the second amended complaint run some thirty four pages the first the men complaint was nine pages there are a lot of if you w the second amended complaint actually although they are filed m d c njt there's a point in the second minute complaint when the klein is referred to by name i'd like to take that out i'd like to take out some of the confusing parts but i think so the first amendment plain i think stands on its own i would much prefer to proceed on the second amendment but i'm a little confused ok if we say that judge down that abuses discretion because he did not remotely reference that kind of delay would ever be excusable it was in a case like this it's only two days your honor i would respectfully disagree that it was only two days it was two days late and that it was first on march twenty second the following day we filed a proposed judgment on the twenty third the second amended complaint was filed it was filed post judgment dismissing the case we did the day after the day after because it was our understanding or interpretation that they were standing on the first amend it and then they filed the second amendment complaint the day after you filed the proposed judgment dismissing the case around and then a week later judge selma dismissed the case and specifically in his order he heaved looked at our judgment and he almost verbatim used our judgment with the exception of one phrase that said th filed timely so judge selma took into consideration the fact that the complaint had been filed and it was untimely it was two weeks out there and so i find it really hard to believe are sitting here talking about this two years later really i mean if you read an and i mean i have a whole section there about courtesy and you jumped on this one day late and i don't even think i would even consider it delay i think judge said concentrate on neglect that's what he was he found clearly found neglect clearly found counsel made he was neglectful that he should have been on top of this and he should have realized that march twenty one was a day and not march twenty three but here we are two years later almost to the day it is today two years later august five twenty sixteen and we're talking about this this case should have been resolved by now it's just ridiculous conduct i think on your part to have i really do believe that and i think you should go back and read all of that glass case i wrote on this because i mean this is this is just that kind of hard tactic hardball litigation i have read it and i am understanding of your criticism of us for for moving forward i think this would have been back to pena factors and now jump back the printer factors it's a way it's four factors that way just because judge sound that weighed one of the four factors higher or gave it more weight than the other four does not mean he didn't consider them and i'm not sure i understand that  days can be considered excusable neglect the issue is not the concern that you are agreeing with me by saying something else than what i said i did not say that it tong prior counsel got in front of a court and said i did not make a mistake it was not an error on my part he attempted to blame the court he attempted to blame defense counsel for his failure to file the document and now the prejudice was that he felt he submitted his brief two days after the due date it's not a stash of limitations issue the guy must calendared it to mask up and he didn't crawl to the court and beg forgiveness and so the judge got mad and said fine we're dismissing this case there's no prejudice to your party here other than the fact that they're still a defendant in a case i think you probably prejudice your case more by having this appeal go on being two years later now play did not relate back to the original complaint in light of all of the content and the lack of specificity in the original complaint really need to rule on their i mean wouldn't it be something that would go back you know because the second american plate would be there and it would still be it's filed and we would say gets relief from your judgment because in sixty b that