rule four am seven years actually it's over seven years past when the last it was first filed over eight years past when the incident occurred i'm quite aware of the uphill climb and i've got abuse of discretion is the most deferential of standards of review and the discretion of the syria is i can see the broad but it's not without limits yes this is not the pastor of the case i really start out with that satisfied relation back would apply but that's not the same as saying that the service was proffer or was totally understand now but let me ask you this is there anything on the record from which we may either know or reasonably nominated as a notice of association of counsel on september fifteenth of think it's two thousand and one i printed it off pacer it's docket number one fifteen i'm in the district court docket  on behalf of ms williams and associated peter klein as co counsel of record had you previously entered a notice of appearance on behalf of he's whatever the county was for i don't believe he did your honor i'd have to go back and check the record if i know there are places in the record where he generically uses the term defendants but i don't believe there's any point in which he  an appearance in which which would have beat waiver on her behalf well i mean that's obviously the basis for my question and then that they the follow on to the ad is supposed to use a hypothetical that at the time that you or mr kline entered a notice of appearance on behalf of defendant williams and all the other employees who were sued a determination was made that there might be a potential for conflict of interest prejudice to ms williams if she later had to get a different lawyer who had not been involved in the case from the beginning and would essentially have to start over from scratch when he was associated to solve the con let me separate what i think are two issues if the notice of appearances entered on behalf of ms williams i don't think there was one i'll go back and check and no doubt the court well i think that's a look at the only thing i could find  if the notice of appearances entered on her behalf she's appeared in the case that's a waiver of service and so really every other issue becomes moot of course and i couldn't find any such documents in our look at the dock the fact that there may or may not be a conflict at that point in time or there develops subsequent to that really is irrelevant if she's appeared she's appeared in and the service becomes a moot issue there's no evidence in this case of any conflict of interest maybe i'm not asking hard questions or whatever try to get at your issue with prejudice if she's not brought into the lawsuit until seven years after the lawsuits filed the argument is made by the other side that well there really isn't any prejudice was she didn't have counsel the same or is represent throughout our argument is there's no case law that i'm aware of that says the fact that you're represented by a lawyer who was involved in the case of you seven years before you got involved in the case does not constitute force complaint and where is he going to be a witness at the trial your honor it's unclear whether the trial court would have let him be a witness there was a lot of discussion in the trial about whether his report was going to be admitted as mr glasser points out in the brief nothing in the record shows when he died and given that i'd have to say i can't rely on that not relying on his death to show prejudice you know what i am relying on is the presumption of prejudice which in turn has a lot to do with ms williams memories there's lots of points in which during her cross examination she says things like to the best i can recall i have to rely on my report for that i don't have a specific recollection things like that in the cases presume that what's the difference between two and a half years wait before you serve and seven years before you serve in this case in terms of prejudice your honor i don't mean this is a flippant answer but but the difference is five years there is no law no and when i filed the motion to have additional time to serve i did not include why we hadn't been able to serve up to that point in time but i did indicate that what we had done at that time or close to that time had not been effective to locate its well yes and so as far as their record goes there's nothing specific in their records  that when there's no explanation even without a dead witness what one of the answers is that the trial court judge via say what's familiar with positions that we were being presented orally by the parties and i don't know if i told her specifically what my what the reason was i came into the case says i i tried to set it up i tried to set up my answer to your question  your honor through by inference from the record i came into the case in two thousand and one in april and at that time mr e file had started the case pro se had been represented by one counsel for  and how do we decide whether a particular length of time is too long way or the other and in fact it was i mean honestly it was just an oversight that i had that the defendant's williams had not been served and in fact it was the trial court judge who brought we don't get filed in the court the suggestion of death until five years after his death and in september of two thousand and three and that's about the time all of a sudden everybody's paying attention to the case  y in the world is are the defenders waiting for five years after the death to notify the court of what's obviously a complete defense there's to a mistake or it's a good question and of course it's not one that i can answer i represent the defendant so i've never discussed it with the defendant's counsel so that would be for the defendants to answer i did note that and my review of the record and i don't know why they waited so long approach it seems like it wasn't as it wasn't in horton to them at that eye witness to the alleged assault would be important in the prosecution of a civil rights case it is important but the failure to take depositions this is not itself an indication that it to be important as i've noted in my from the from our perspective it doesn't look like either side was doing anything i mean the case gets filed and then everybody just kind of walks away from it for five or six year and in fact it was in two thousand and one when th assigned to judge meridia in january of two thousand and one when it started taking shape and getting moving and i want to answer to the parents in april of two thousand things i have to say i think what happened to choose a new drug new judge at that point right as i understand it is two years and in this case the effect was to grant an extension for three and a half times the statute of limitations have you found any case that says that a court has the power to extend service on a defendant that far beyond the expiration of the statute of limitations there are cases that where the court appellate courts have held numerous cases and i cite several of them from this circuit in my brief where one of the particular reasons that a trial court judge may use is and granting an extension this time he's realizing beginning the ordinary rule is to under certain circumstances you can have someone long after the statue of limitations has expired so long as the person is sufficiently related to the actual other people who have been and i asked whether there's anything in the record that lets us know whether ms williams was aware of the loss i have to say just looking from the outside my suspicion is the she probably did look there's nothing in the record that tells us one way or the other  nothing directly that there certainly is a part of the record that may be well inferred that she was aware she served or she served in the same county that th listed against miss williams in the in the complaint and when the answer was filed on behalf of the defendants whoever they are whether they were representing all of them or not the answer includes general denials of those allegations it doesn't march pardon but doesn't prove march they might mean the other defendants might also have a great interest in just saying you know all of this is made up none of this happened doesn't matter whether it's for me or but rule eleven requires that counsel who is filing an answer on behalf of clients actually have investigated to the best of their ability whether those allegations are true or not or it would be improper to file a general denial of without actually  to know how specific were the allegations because the story is that kurt was involved only there in the middle carrier and that williams was involved from early in the morning to late at night and so if there are some things that were specific to have things to what occurred it was not clear then you got a good record does show as i pointed out in my response that the amount of time that officer heard was there he was just a transportation deputy he was not a jail deputy he was only there briefly at the the first time that when they for pointed him to the bag and then he left and that isn't a record that the only other jail deputy that was there during the rest of the time that could have any information what happened after the four point him was in fact deputy well yes i got to ok actually williams i did not have the opportunity to look through the entire docket sheet but to my recollection when i went through the record in preparation for this is the first time was when she was served and hence was following her behalf on the issue of the record on  why mr williams was not served earlier i would just refer you to the three documents the plaintiffs filed on this issue those are found beginning in pages six twelve and fourteen of the excerpts three very short pleadings none of them give anything other than a  statement of well we haven't been able to find her and serve her the third and really last point i want to make the court and ask whether there's any cases sort of similar to this one i looked hard and i didn't find any case in which the time was extended this long and it was upheld actually i didn't find any with the times extended this long it was upheld or it was reversed certainly not in a case where there's no evidence that the defendant was evading service do we know how long mystery four was incarcerated i obviously at the time of the events in question he was incarcerated do you know how much longer he was incarcerated i don't know the answer to that but it was not i don't believe it was very much longer after that