court summary judgment should be reversed because there's a genuine issue of material fact about when the statute of limitations began to run for mercado's claims arising from defendant devaney's by us in his actions as a member of the accrued an april twenty third teen as this court held in leveling a federal claim accrues when the plaintiff knows or should have known that the defendant has injured him and here macondo is injury is that he was denied a fair proceeding before the wasn't until february twenty fourth team one more condo finally got to do posed event devaney because the louisiana state court ordered devaney to sit for a deposition that mcconnell learned for the first time that castello an officer mercato knows devaney could have been copying castello just to keep him apprised of what was going on in their neighborhood let me ask you a question though i mean what's with all this pretty much public information no your honor it was not public group was opposing the project no no no that's what we didn't know that's what we don't find out until you know that that group was opposing the yes we knew that we knew that but remember we later find out in discovery in this wasit from devaney that oh he usually maintained a fire wall between himself and costello and obviously he didn't maintain such a fireball in this case because we find out in february twenty four team and filed suit a year later we find out in february twenty four team that interest what was that about your right there is no doubt that we allege through our counsels letter that there was a conflict of interest but the question is on the record did we have facts to know enough to file a lawsuit in other words we're bringing it to the attention of the commission and we're bringing it to attention of the vanity saying hey don't you want to recuse because we think there's a conflict of interest but then you have to look at the facts and decide as a matter of road the federal court looks to the state law on tolling and here the louisiana tolling doctrine is contra nonviolent i'm terms of sort of tolling from the moment in terms of the trigger limitation that's the injury right but your honor the concealment goes back to august two thousand and twelve when dabney writes his letter that's provided contemporaneously to our counsel claiming that he didn't have any improper communication with board members at close  right if i'm here in your honor correctly the the affirmative act by devaney of course is his writing of his august i think it's august twelve a letter to his fellow commissioners which he signs as a commissioner and g eight out of ten guidelines on why the project doesn't satisfy and that information comes into that letter it turns out we find out after costello gives his input but we don't know that until we depose devaney in february twenty four team because prior to that time of course devaney has denied having any improper or any communication with for me a board members that would include castello about mercado's project it turns out that wasn't true and of course we later learn in discovery in this last sentence that at least eight employees of devaney communication that's a company owned by devaney were working out of devaney communications offices to help the meo with the project and that's even more information that would tell us that there was a current work out what he says what he says in the letter of august eighth two thousand and twelve for the record i have had no improper communication with any for me a board members that have it appears to be a blatant untruth that's true i have no financial interest in this effort that is probably not an accurate except in a very remote way and my no way retained in the effort to oppose with his probably hypertechnical but not fault as you know i wonder if they weren't getting paid we may not have been paid but it's just like when a lawyer represents a client unp they were definitely working for me on devout i don't think those same rules apply to communications well they were definitely working for for me and let me answer your question about the second point in that letter the financial interest it came out in discovery in this lawsuit that devaney communications used their work on this project to help the media as a basis to try to get an award a marketing award which they used this project they said we h communications but of course knowledge about past relationships unrelated to mercado we would argue doesn't show that mercado knew or should have known that there was a direct current working relationship between the two giving bias on the part of da case suspicions are not enough to start the running of the statue of limitations there have to be facts that show that the defendant knew or should have known say more than that by the way your clients in new orleans yes ok absolutely so it says our clients have we have learned that one or more from me a board members has engaged in regular improper communications with the commissioners of  against the cold storage facility right this reflects our suspicions based on past relationships between let me ask a question i mean couldn't your couldn't your client of filed a lawsuit at that time and put deposition and gotten the information that it otherwise took them years to obtain to well your honor we found the public records request for months after the city council rejected the project i understand that but i mean wouldn't you have had more powerful tool available to you perhaps but that goes to my policy argument that when do you want playing is falling suits against public officials for bias don't you want to actually have the facts in hand that show a reason to know there really was a box and it's you know i think the layman assumes a fifty percent of public officials everywhere are biased now where public officials except for judges are held in low esteem so we would like the to argue that the rule of law should be that you really should have to have knowledge or reason vanni went to a wedding and he said i'm not going to vote but here's my letter you need to write you know opposed this project any signs that as a commission for these reasons dot dot dot so i think and furthermore he's the commissioner glaring district john and so there's that i know there's evidence of the record with respect to city council that everybody in the city council defers to the council person from the district so here is the member from the district  if you let the stash magician's accrue too soon then the public official stonewalls the public records request was exactly what happened here we had to file a mandamus in louisiana state court to obtain those documents and even when he notice of a state court order and a related proceeding on an appeal from a summary judgment that seven forty one hundred thirty six fifty one at no five and as the court wrote in that case the state court orders an indisputable so there is not any prejudice opposing side and here our opponents begged it by arguing to this court oh no court has held us who have violated the public records law and so we believe that the court should take judicial notice of that order and i'll note that the ninth circuit has agreed with this courts rule six eighty one fed thirty nine seventy eight and snowe versus mcdaniel that judicial notice is an exception to the norm principle that this court would only look at what was before the district court so in light of that state court or we think there's a fact question on tolling for a jury but even before the state court order we feel like we have enough evidence of concealment between his august eight twenty twelve e mail that judge jones read and his failure to respond promptly and then his final failure to fully respond to the public records request to show that there's a fact issue on whether the statue of limitation should be told and we of course also argue the statue of limitations should be told or there's a fact issue to preclude summary judgment on whether it should be told based on the discovery rule so for all these reasons we asked the court to reverse the district court's summary judgment to give us a chance to go to a jury on the fact question thank you ok thank you know that he has been injured in the appellants are correct that the question of equitable told weighing is pursued by reference to state law which is where the chevron case and its precedent comes in the significance of this is burden of proof we have the initial burden and show that there is no material issue of fact that the prescriptive period has run and has begun and the  have to show it have the burden then show shift to them to show that there is a material issue on the ball tolly and the wording of that standard what that means what a reasonable basis is to proceed it depends on which case should look at but the wording is consistent in the louisiana state law it says the chevron case sites to jordan which cites t other louisiana supreme court cases prescriptions starts when plaintiff knew or should have known that there was a reasonable possibility that his problem may have been caused by the defendant's x t may have been caused by that the condition might be related to the defendant's griffen another supreme court case prescription does not run as long as it was reasonable for the victim not to recognize that the condition may be related to the tree you're basically saying that they should have known your client and his best friend were scum and therefore they should have filed suit early no ma'am of first of all we  t i take issue with the court's wording and their actions i would note that the e mail to which your honor alluded earlier the august eighth e mail which was in response to mr middleburg said letter maintain that he had no improper communication of course he had a communication with f and my board members as they well knew he was living with and working with and if a board member he lived in the barony this was a neighborhood association he's on the historic district landmarks commission it's not at all surprising that it would have condemned him saying about a chinese that he claimed the chinese were not to my knowledge and not in that letter  honor and again we take issue with that but that is we this was run through the city of new orleans the request as the lawsuit in the public record suit says was directed to the city of new orleans the questions to mr devaney came later from the city attorney's office on what he should gather he they initially produced documents in february of two thousand and thirteen mr devaney gathered what he understood them to be asking for two hundred sixty five pages of material which were produced in april two thousand and thirteen that's the material to which the district judge alluded and then there was subsequent activity there were long gaps of time where the did nothing at all and that's why the case sat around so long for over a year they just they did nothing in that case but in november of two thousand and thirteen mr devaney was asked by the state court judge go back and look again and he did and thirteen more pages which mr cummings acknowledged he received and saw in the event of two thousand and thirteen also well more than one year before the suit was filed so we take issue with the idea of stonewalling but whether there was or there wasn't we know what they had beyond dispute we know what they were given and april two thousand and thirteen and the ember of two thousand and thirteen we know because they told us and your auditors have already alluded to the middle  a board members in opposition to this project i think gauged in constant improper communication with commissioners and seeing looting but not limited to mr devaney that's not in the past so assuming for the sake of argument that these communications were somehow he was an economic beneficiary of the hazard it is a similar sect if you want a high rise in that area if he had no direct economic benefit there that's why they're trying to say oh well it was a husband and his wife i mean just you know i mean there's no allegation that this for me a group had property in other words so it's not a community property type right and so there's not there's a presumption the people who are living together are going to communicate with each other as you say but to what extent that presumption limit what the doing in other words that scientists and a member of the baath party politics right at somebody you have to get along with well i think yes ma'am i do see what you named but d the fact that s but even if there were something wrong with his communicating with mr castello which we dispute they knew it they they talked about that there was improper communication going on with board members they talked about in this letter that stella is a treasurer former president and c f o and they knew that he had gotten a copy of the draft and that the draft of the final letter changed from his getting the copy of the draft to the next day and if there are any because they received it in april two thousand and thirteen when they got the the two hundred sixty five page production of the e mails that  other documents that devaney found initially that you know why should anyone jump the gun when dealing with public officials well it's it's much standard to be some kind of absolute certainty and if you set the that there then it would if this are right there would be no prescription statute of limitations at all that's not the standard  and i get rear ended i don't know for a certainty that the person who hit me is at fault i know i've been injured but i don't know their fault maybe the brakes failed and in fact there's a case cut right out of louisiana that cited in the chevron case where that's what happened and the other driver said you my brakes failed the plane of sued the other driver didn't sue man the brake manufacturer lost with the other driver because the brake set failed and then tried to sue the brake bad effects of the court said too late you you were on reasonable notice you had reason to know that there was a possible claim here and then the clock starts and if there were any doubt that that's enough to start a clock here they actually filed a lawsuit making allegations and in state court just like in federal court when you go into court and make allegations you're making them on on good faith that you believe them to be true as mr cummings confirmed when he was  also some level of deference to people in an executive authority that that they that they're not deliberately concealing misleading and so on and by the same token because they have even though it's a burden to be in public service it's also a privilege and entails certain responsibilities one of which is candor and if mr  it's clear that it was volunteer and the the evolution to the application for an award referencing this that that's for volunteer activity that's what they were talking about that is  communications but even if there was something wrong with those things as they say which we dispute they knew it because they said it and they filed a lawsuit to say so did it in the  and this is not just this is a lawsuit they filed a lawsuit and they said that and he said yes i hired mr saying decided to file that yes i believe that to be true at the time it was filed he knew everything he needs to know to file a lawsuit we know because he did whatever the wording of the standard is and as i said the reason to suspect may have you can look at different opinions and find different wording certainly information and belief is sufficient as many petitions that factual allegations are filed and here there is no question that they had all the information that they needed and we know that from their own words in writing repeatedly so there's no there's no material issue of fact there is no credibility call it's in writing and it's in front of you just as it was an advance to make the call on the firewall between me and costello with respect to what i do before the commission we know he didn't keep but that's the kind of firewall here in the chevron case chevron was investigating you'll remember which of several defendants might have been the in the court well the statute is told because they didn't know yet which defendant they were investigating we would argue that's what we were doing in the public records request that we filed in january two thousand and thirteen four months after the city council denied the project that he didn't respond in january twenty third two and we had to file a mandamus he does an incomplete response in april twenty third to another incomplete response november twenty third to finally the state court compels a deposition february twenty fourth we do a forensic search pursuant to the state court order and we find more public records that he didn't turn over including this e mail that we just got pursuant to the louisiana state court order last month so we believe this shows that the public official you know counsel talks about what should the standard be for a public official certainly the public official isn't permitted to misstate i don't want to use the word live but surely he's not permitted to misstate to write a letter to his fellow commissioners that's provided to our council that says i didn't have any improper communication with the board member my company devane the communication is in no way retained and i get judge jones this point about they weren't being paid but eight employees there they're using to any communications conference rooms and computers and credit cards they're designing the logos and the you know the sign for the yards i mean they're running the for media campaign out of devaney communication offices and it's true that he has a right to have an interest he lives in dish i get that but what he doesn't have the right to do as a public official is to collaborate with the opponent against us and i don't think it should matter whether he actually voted he might as well of voted he writes this detailed letter signed it as a commissioner and says i think you guys should all vote against this because of all these detailed reasons so and it's true that we were provided an email that where the draft letter was copied to the stella but as i said an opening t is actually running the for me opposition out of their offices eight employees and that's what we don't know and so and we get the public records request so that we can find out and look your honour's what's the email that he didn't turn over cards to pay the expenses and they say oh we'll get that money back from for me up and judge jones that still means are not retained i guess up there they're using to veni communication credit cards to pay for the campaign or train to help me in films over and might there be a fact question on that's the way it really really different played out but but your honor there is a direct economic benefit we laid that out when we deposed of any in january i'm sorry in july and sixteen he has done past work for for me have that's where they opposed the cold cold storage facility right then he he uses his company uses there were for from me on this campaign to oppose person on the board you know what their views are right and that's what and he certainly entitled to his peers but he's not entitled to run the opponent's campaign and not tell the fellow commissioners and mislead us as to whether he's doing that there ought to be a fact question here for a jury that's all we're saying thank you and thank you we'll be in recess at nine o'clock tomorrow morning