he says i'm available that gets conveyed parties of the court react to that then it goes back to us it's a little bit of an odd dance that was going on here it is my dance mr mr levy wanted to get out of the case  second time your honor i had to not only answer that question it was sent back to the court and judge bell let it sit for five years well i'm not sure the blame belongs to the corps did the parties make any effort to bring the issues does attention i believe that what there was a pending motion for summary judgment at the at the time that it was remanded which was never all and there was also  gotten himself admit it to our court despite a couple of notices to that effect and you know why isn't that a perfectly good reason for refusing to reopen  point that he should have been he should have been in world in the in the western district of michigan before filing motions out there however i think that the will we will we need to focus on the  it abuse of discretion is the issue yes not emotional but it's hard to see how it was given that we're only reviewing the denial of the motion for reconsideration morning your army please the court the fundamental question i think was touched on by generator and which is as a sixty six motion the court should first examine what issues are available for review here and those issues are confined denied the motion itself raises and the fact it doesn't complain that there was an error law made and in dismissing the case in their opening brief on behalf of lanka raises a number of issues under the harris case that it says the court should have instance because then we have to look at the question of whether those arguments themselves create a clear and convincing case of exceptional an extraordinary circumstances if you if you look at what was in the motion f reconsideration itself it is literally nothing but an almost verbatim repeat of mr broad a courteous response to the motion to dismiss in the first place in the in our opening brief we responded that this is all new  giglio told the court that he had in fact agreed to take the case of it in the fall and that's what the court did based on that correct representation the only thing that happened i don't think rises to the level of misrepresentation it rises perhaps to a change in circumstance that that no one had informed the court about and that mr barton kirti had the opportunity to but didn't which is that mr gigli didn't keep his word and picked up another case you know he told the court that his like it doesn't really show the extent of that and that's probably attorney client discussion and in any event but but going back to the central point here of what did the district court below happen for in the form of the motion for reconsideration and did that specific motion a present a clear and convincing case of exceptional or extraordinary circumstances and clearly it didn't it simply said as we told you before i'm not available to take the case but i will if you if you move and that is certain certainly not exception it's what's interesting he's not in the case yet he's controlling the docket clearly he was doing the same thing even when he was not a council record because the declarations of  when he did become council record are almost verbatim they are mirror images only changing the wording for one signatory in the other example but in the end of the day your honor it's neither here nor there because there is no exceptional circumstance presented the court was fully aware of all those facts at the time we dismissed the case and we would submit that you probably cannot satisfy rule sixty six by simply repeating verbatim the argument that the court had in the first place when it dismissed the case of the remaining arguments are our new presented on appeal and i'll rely on the briefing as to whether they would have presented an exceptional case presented in the first instance below issues on notice and other things under harris i think are satisfied fairly judicial positions both at the district court appellate court level that log jam started in michigan and the six circuit there's five seats for article three judges in the western district of michigan we were down to two for this entire period it was only summer of zero seven that they fill the remaining three seats and that logjam was actually compromised out they filled all the other seats throughout the country but they continue to have problems in michigan six circuit during that window the active judges and some seniors were busy so in terms of as a defendant trying to press judge bell saying get back to it we certainly were going to be pushing but you would need to look at what happened when it did come up judge gave him a date the trial date and the plaintiff bit more time there was additional delays but really i think judge position in that position or the dismissal of the case so those are the issues that we're faced with here today i think we're pretty well covered on anything else with the exception of any other question thank you appearance or anything like that and that he you know he'd be willing to take it if it could be rescheduled and the the judge judge belvin never reconciled those statements with what mr levy had said when he said it would in his motion withdraw that giglio had been retained and would handle the case it creates it creates difficulties for us to create