relation back in this case st it should be noted that rule fifteen c two is not the exclusive means five mins for relation fter all she doesn't really need the complaints anyway and selling them but that's her problem and the other one the problem is what's that it that one doesn't turn doesn't speak in terms of notice so you have to get from process to notice essentially so i think that's where your focus should be see one talks about notice not on stage two has the right person being served but you have the process from we would say that for in terms of serving secretary chao rule for says that the u s attorney's office is the agent for service of process for any government official he does and and therefore she was served via the u s attorney's office can we just start walk through your argument with c two because i frankly just i'm not persuaded by what you have to say and see once i made it and you can turn it later but i just start with what i think at least is your strongest argument just walk to give notice the summons here had a case name it had a case number and it had with it a complaint that was sufficient to put the government on notice that a lawsuit had been filed and indeed we would even point out that it was the file and it had the e file header on the on the complaint itself me ask about the e file and because this is long after my day as a practitioner which is the defect that's alleged that starts all the problem is it's not signed and sealed by the plurk can you tell me a why it wasn't or is there a process for an electronic signing in sealing or do you still have to walk down to the court house and hand something over to the to somebody at the desk minder says you have to request it and then you serve the complaint and then sometime later usually the same day you'll get certified copies via e mail or a link to them  containing this and so what so what happened here you just didn't request it that's my understanding your but but so in that context is signed actually signed now is because you're joining alectryon only now is anything actually lawyer was you didn't ask for that and that's why they went ahead and sent the unsigned summons is that what happened there's no there's nothing in the record your honor that that talks about why  by mail amber and i made it ok yeah piece of paper yes it's just that that piece of paper did not have either a physical signature or an electronic signature that is you can death you can get a piece of paper from judges or governments or whatever that has things on it that counts as an electronic signature correct but that didn't happen here yes your honor that is so so is your sense so is here just to be specific about your argument and i must say this is  isn't just a process or is your argument that whether it's process or not it was at least notice and that's really all you really need it is a process because the summons gave notice notice of what is is not defined that is correct so that's that's the way you would get into that argument correct the general notice provision again the argument is that there was no prejudice because challen never does anything in the u s attorney in the f a a knew it and should have known in a bureaucratic sense that you'd made a mistake that's correct that's kind of the argument i have that way is that that sort of fair let me ask you you  had said though you had this other argument in your brief that page twenty four dollars which says we have time to cure your failure to serve a person and you said something like service on an officer is service on now on the u s service on of the u s attorney but if you're looking and i think you cite i little two or i i two in the way i read it says to serve a u s officer suit only in an official capacity that's chow a party must serve the united states and also send a copy to the officer and i didn't think you had done that we had we did not do that your ok so then you can't succeed under i to because you didn't do that so let me just because that was like a fervent string to your bow from the brief and i'm just saying in your really didn't do that you've got these other do you let me did ok so back to the other two anything and i would like to just point out that that lack of a clerk signature is a technical the fact that doesn't and are someone all over the lot there there are cases in which there are just missiles on pretty technical grounds including i mean my understanding is that on a on a technical basis like again your honour's the technical defect cases they all say that there is no that you shouldn't dismiss unless there is prejudice to the other side here there's nothing in the record that would amount to any prejudice unless a court has any other question for me on this i'd like to reserve the balance of my time will fifteen see to is really a definitional provision of what notice means when the united states is involved if i look at you suggesting it see one can also apply i'm suggesting that see one can apply in the case of notice to the secretary but when you're talking about imputation when you're asking can we impute notice to an officer of the united states who was not actually served and they just conceded that they didn't actually extremely divorced from reality in that secretary chao is never going to see this piece of paper no matter what your honor that would be true in any official capacity suit and for i therefore to worry about whether she herself has notices it is extremely silly and that's why there's a special provision in for i to for serving federal officers in official capacity and in fifteen c to defining what notice means in the case of a suit against the united  definitional section in this court's decision an allen explains that see two at that point it was the last sentence in fifteen c but the same language has been moved was moved an amendment to see to is a definitional section that tells us how we read notice when we impute notice to an officer of the united states when that officer didn't receive notice and it says we do it when basically one of the three ways you if it was going to i mean you know you always want more words but it it doesn't say anything like process is defined as a proper summons under such and such right you look at the combination of rule four and will fo dollars which is a other forms of process by implication taken together we know for is sort of the normal meaning of the process and for a point one usually you look for definitions where it says a is defined as b you don't usually get a definition by negative implication in the rulings i'm sorting is a common understanding of a term like process i think what we would look at is black's law dictionary we would look at the supreme court statement piece of paper and call it a summons if i want to do if you look at the docket it was a defective summons what it what it had supported and eight dismissals that case the fact that it wasn't signed yes absolutely if you look at the requirements for a summons under some have a lot of cases i thought that said in just forget about the relation back contacts to somebody needs to serve within the time and for four am and they serve a summons with some technical defect as well as the complaint  said i don't even know if you need to fix it i thought our cases said we overlook the defect unless there was prejudice to the other side and there's no prejudice here to the government well at this point the operative complaint is the amended complaint and it days later they did i'm not sure we use the word perfect like you said if you serve and we didn't we didn't alert them to how they would have to do it but at that point what they needed to do they were out of time to file a signed summons they needed to move the court under four m for time to amend so so and get assigned some areas and you said if you service will answer yes and they did what they thought was service that is they provided a signed cert signed summons and complaint right yes but that that we alerted them to this we didn't know what they would do we didn't i don't know what that means at the time we said to them and us how they would have done we had tell them that which is what they didn't give you a sign summons well you might have thought they might have done for a two correctly so maybe they would have moved the court to ask for more time and we would have opposed it and said you haven't shown a basis for it maybe they would have named to the right defendant they they were point we would have said i think your premise is just wrong i don't there's a there is a lawsuit and i don't think you would be entitled to dismissal on the basis that the summons wasn't signed as in less you could show prejudice under twelve b under twelve be a defective liberal with respect to meeting the requirements of are sort of excuse me very liberal with respect to allowing relation back against the united states our officer so long as you satisfy one of three different ways signed summons as a triviality because from the point of view of the court and that's what i'm asking you i'm asking i'm asking you that if it was not sufficient if if within the scope of rules for dismissing the law so i therefore if it's enough to keep the case in court at that point why isn't the process efficient for fifteen seats i think it would if we had opposed a motion to amend to fix the complaint and once you pay your fee then you move the court to issue a signed summons and if you are a defendant and you're handed a piece of paper that looks like a complaint and handed a piece of paper that looks like a summons but unsigned you don't know whether there's really a suit against you or whether someone's trying to make an appearance but as if it has but you're not responding to the question but do you agree with the judge watch for that if that's what happened that the suit would not have been just missed at the outset if they had even outside the ninety day period we're now going to give you a signed summons i believe they would have asked the court they would because maybe i'm wrong on the st part but i thought that we had cases in which this same kind of thing played out somebody served a defective summons but the person got notice they knew all about it to get into court and now we're outside the ninety day period and someone says for the st time hey this thing was defective and i want the suit thrown out and i thought the courts consistently said no that is not a basis for terminating the lawsuit because we're all here you got notice there's no pressure so we go forward the answer to the question is there are there cases which they will overlook what i do know is that there is a motion that can be made under twelve before and courts probably very typically do allow do excuse the defect and allow parties that reading of see to that you have to win courts over look it it's because someone has raised it and the other side has said you should excuse this and here we raised it informally and they didn't ask for excuse they just got a late sign summons gave it to us and then immediately filed a new complaint so that the complaint for which they have the late filed summons is no longer the operative complaint and they can no longer fix it was there any difference between the two me i thought that they did ask the district court for some more time to do something or other but and the court said no and i can't remember what it was so they asked for more time with respect to the amended complaint they have never moved as i am they they never moved for more time with respect to the original complaint and the service of summons they asked later a pleasing excuse all of this under rule for em and the court said there isn't good cause this was a pleading requirement that you didn't need and this is just garden variety neglect so ok just so i'm clear so you're saying if at that point instead of asking for this thing with respect to the amended complaint if they had instead asked the district court hey can you now given th way down the road allow us to amend this defective summons we sent them way back then then there would be no basis for dismissal no i'm saying that if they once they filed the amended complaint they couldn't go back and generous about relation back in an official capacity suit but it does say you have to satisfy the notice requirements of for i and alan and miles this court's decisions in those cases make that abundantly clear that that the two is a definitional position under for serving either the u s attorney or the attorney general no your honor because they didn't the original complaint was not served because they sent us an unsigned summit so when it says the put the court must allow a reasonable allow a party or reasonable time to cure its failure to serve challenge if the party has served and you say oh no you didn't serve us because of your consent is that right and again for i for which is you know a special rule of getting extra time established technical meaning it refers to a formal delivery of documents that is legally sufficient to charge the defendant would notice of the pending action and of course with an unsigned summons you don't know as a defendant whether you've actually been sued or whether you know someone's trying to get you to the table or it is it is not uncommon for people to hand papers to government officials and even private individuals and call them a lawsuit when they're not and the some of the signature on the summons in the rd circuit has a decision that says it's actually significant from the point of view of the district court and the point of view of the defendant because it tells you the service is really a lawsuit as far as you know have any case law on the question that we're we've been assuming the answer to but i don't know the presence of twelve before which says you may move on this basis but also says you can waive if you don't move on this basis suggest that if you do moment move on this basis the court should grant it without prejudice but if you are out review service but if you're out of the limitations period for service for the limitations period plus the period for service right so it's it's four am is ninety days and then more time if you want to just record in those circumstances absolutely could give more time but the district court here in its discretion they never asked to but their failure to ask it to we don't know what would have happened if when we alerted them hey you didn't sign the summons if they had gone to the district court and said we're out of time to serve the summons please extend our time under four am i'm confused i thought you denver said that except with regard to the new complaint you know we said it with respect to the original complaint after this the so on you said the end of that was you said service if you serve us and they thought they served you but again they didn't serve you right in your correct we said so the st of the jury one they were timely but they didn't have the signature the nd time they had the signature but now they were out of time but they were out of time and they didn't ask i mean i think i think this case we would be in a different situation if they had gone to the district court and said under full at four am please give us more time to serve and then completed service they did ask for more time about something in the just records and no there was a good cause that's right they asked for more time under under with respect to the amended complaint but they have to ask for more time with respect to serving the original complaint because that is the complaint to which they're trying to show relation back and what we're saying is they can't show release impact because they say they filed a complaint within the limitations period and then they had ninety days or more time if they asked for it to serve and they did not satisfy that it was february th was the end of their ninety day period for them we just want to said nothing and waited for them to move for a default we were this was maybe not as helpful an e mail as you can imagine but it was a helpful helpful e mail and i don't think it's fair to look at it in retrospect and say they could very easily have responded to that by and they said ah but it wasn't really service correct because it was on time correct counsel mentioned you know we could they could have moved under twelve before but the before and in her argument she also brought up hey how does the government know that there's actually a lawsuit it knows that because there's a case number there's a case number on the summons and and well that's on this summons is there an actual case and does the case name match up to the caption that's on the complaint and even the u s supreme court case that counsel cited from about what is process it talks about legally sufficient process and we would argue that here because it gave the united states notice of a lawsuit that it is if it fit purpose for what a summons is posed to do and therefore it is legally sufficient i'm sorry what what ruler document where you quoting for the words legally  head had cited to us supreme court cases from from that and from that case so that's where the language is from thank correct and we would say it is legally sufficient because it serves the purpose for which a summons does and if there are no more