here is that the word mistake includes lack of knowledge of the name of the individual defendant stark and the district court erred in declining to permit relation back under the doctrine of equitable tolling we ask the court to hold that where the operation of state law the minnesota government data practices act where that operation of state law prevents and a plaintiff from learning the identity of a defendant that a cool tolling is warranted finally the district court erred in granting summary judgment on the grounds of qualified immunity the district court erred in placing the burden of proof for this affirmative defense on they pointed and then  properly evaluated the state of the evidence before the court on the record with respect to the issue of starting a judgment to the extent that the court was actually issuing a summary judgment decision the evidence in the record in favor of if you take even a look at some of the you know key passages of crops what the court is saying is the question is not whether our for example should have known the identity of the party but what the defendant knew the plaintiffs knew what the plaintiff was doing and crap ski change that perspective and said no let's go back to the plain language of the rule the rule is saying go ahead o's you're right about the sure received notice the action should sure have known that the action would have been brought against him we don't really have any findings on that from the district court the defendant's below never contested that and the evidence in the record indicates that he had no tests first of all we provided a notice letter to the entity defendant and the notice letter started that it's our understanding that the names of the individual defendants will not be produced under the minnesota government data practices act before commencing litigation so that's on the notice that went out even before litigation in the come plaint in paragraph four twenty one the complaint said the minnesota government data practices act is the basis for the individual defendant not being named right now in the complaint we had exhibit exhibit c n d which articulated the department of public safety position regarding the fact that the individual defendants were being classified as non public data and we also have other pieces in the record that i direct the court's attention to which is the rule twenty six our report where all court issues an order and finally with respect to the order that the district court issued granting the plaintiff's motion to amend the complaint the court found no bad faith no und initial disclosures were do and a little later in january when the d p s provided the names of the individual defendants for the entire report so that's when the plaintiffs first found out and this is you really do and the names of the individual defendants but we're serving you entity the defendants have never said we never had notice we're prejudiced we can't defend this case we had no idea we were a target of litigation a being who the defendants have never been the contention of respondents here that mr sheriff did not have noticed and it's and when he was deposed he was asked those kinds of questions and he found out that he was a target and it turns out from i think his wife  who worked elsewhere in the in the city so he knew that he was a target but he but the other thing is the odd report it identifies the computer that was you being used by the person doing the it identifies the grand rapids police department as the source of where the lookups are occurring and so when you get a notice letter we all expect for corporations any kind of government entity that people get together with their lawyer and say what happened and there's no allegations that mr sure was not included in that and did not know so given the fact that we have that issue off the table that he had noticed that he hasn't been you situation and at the time of briefing we articulated what the current rule of law was in these various circuits in preparation for this argument i will look to see whether the law was evolving our brief indicates that in the second circuit the law is evolving in that many district courts are creating exceptions not necessarily in a john doe situation but in instances where the defendant identity is particularly in the knowledge or room of the where there are barriers yes there were the operation of the minnesota government data practices act precluded the plaintiff the appellant from obtaining the information regarding the identities of the individual defendant to amend the complaint the district court recognized that there was no dilatory motive bad faith or undue prejudice to the defendant and the defendant has never made that argument when you have a john doe defendant like this and you  reach this obstacle of the state statute that doesn't permit release of this particular names correct right what what avenue do you have through the state law to find that while one option and the and we one option would be to minnesota government data practices act but as you can see from the d p s stipulation with the plaintiff in the record below before you the d p s took the position that we will not release these names this is nonpublic data and we will not do absent a court order telling us that the needs of the plaintiffs outweigh the privacy interests of the individual defendant who is protected by that minnesota government data practices act so that would have been something that would be futile so that in the end is where we stand with this litigation is that operation of state law precluded the plaintiff from getting information but under the straight up relation back argument and the structure of analysis it doesn't matter what the plaintiff knew or didn't know it doesn't matter how fast the plaintiffs moved or any diligence before closed that factor and said the rule doesn't mention it and it's not there so again crap ski shifted again the focus back to no that's where i think the words of the wall begin as well as the language of crap ski the rules are supposed to be liberally construed in favor of resolving cases on the man merits permitting  complaints to be amended and so forth but i did want to go back to judge dismissed question which was what's the status of this wall in the circuits now so besides the second circuit where we've seen courts carving out exceptions under the relation back doctrine to permit parties to have their come second or first amendment complaints relate back we also have movement in the fourth circuit the fifth circuit in the seventh circuit in the fifth circuit there there have been some district court decisions questioning the majority rule but still continuing to follow the fifth circuit's directive because of course the rules of that go along with the judicial hierarchy in the fourth circuit we saw the same thing we saw some courts that were carving out exceptions and in the seven circuit i have accused in front of me that i thought i could let you know about this is the seventh circuit in an unpublished decision car clear cook county out of twelve from twenty seventeen this court the district court was quoting the seventh circuit which issued a decision after crops not addressing the issue before  precisely but saying that crapsey had changed what we and other courts had understood to be the proper standard for aren't for deciding whether an amended complaint relates back to the date of the filing of the original complaint we had thought the focus should be on what the plaintiff knew or should have known the only two increases that the district court is now permitted to make in deciding whether an amended complaint relates back to the date of the original one is first whether the defendant who is thought to be added by amendment knew or should have known that the plaintiffs had it not been for a mistake would have been sued and second whether even if the delay in the discovering his mistake county illinois that a case that you cited you know that this is a two thousand and seventeen decision your honor you might send a letter then if you think it's an important authority rather than just reading it  this court has repeatedly held that qualified immunity is an affirmative defense for which the plaintiff only bears the burden of proof regarding what is clearly established law and the remaining burden under saucier is on the shoulders of the defendant you thank you for your honour's may it please the court any misuse into an all and i am here on behalf of the city of grand rapids and frank sure we are asking that this court firm the district court's decision decision dismissing this matter  i would like to first address the qualified immunity question that was just asked by the court regarding the standard here in qualified immunity the district court found that  not a material issue of fact that sheriff accessed ms hegland driver's license information without a permissible purpose it's clear from many decisions in this court that under qualified immunity  must show a genuine issue of fact to overcome that qualified immunity and that's been several cases including bish up the eighth circuit decision in two thousand and thirteen additionally there are genuine issue here about whether some possible connection between  because as i can't remember he doesn't have an answer for why access to because your honor it's asking for a subjective approach and that is contrary to the united states  burden where the united supreme united states supreme court and merit it has explained in explicitly interpreted in the d p p a that the court should look at this from an objective standpoint not that has demonstrated that the court should approach and analyze the permissible purposes of the d p p objective lee from what that reasonable observer could discern from the facts and when you look at the facts and applying them  from that reasonable objective perspective here we have an officer who repeatedly testified he doesn't remember why he accessed her information over six years ago access was done while he was on duty at eleven thirty other accesses here there's no other accesses by frank scherf at the same time as other law enforcement agencies there's no event that would have triggered the access in this case well you also have testimony from the plaintiff that there's nothing about what she did that caused the need for law enforcement this right and i remember in testimony correctly that that is her belief again your honor goes back to this is because frank sure of cannot remember the reason for the access that that subjective approach and that is the wrong direction under the united states supreme court in america to that it should be from an objective view or based on the fact and there is not a genuine dispute in the record that the accesses was for an improper purpose here in husband was connected to this litigation until during his deposition the fact that he came up with a heavy hypothetical and indicated he doesn't know why he accepts this information is not enough under the purpose i would also like to address the relation back issue before the court and i respectfully disagree that mistake includes a lack of knowledge under the supreme court's direction both gain with the fact that when the court in crap ski was defining mistake it cited webster's dictionary which said a wrong action or statement proceeding from inadequate knowledge  that in the whole there for example if milk why isn't naming dough rather than sure for a wrong action it is eating from inadequate knowledge it would be a wrong action if for example headland believed that john doe improperly accessed her information but that's not the case she just completely didn't know that so that's the piece of that has tied to the wrongful action of that and so there is no direction from the supreme court that mistake includes inadequate knowledge  and your honor there is some confusion about prejudiced and there's no indication that the rule or the supreme court's ruling discusses prejudice to defendants i think she's improperly talking about equitable tolling or or something of that matter so based on that plain language and that's pretty chords ruling that is not an essential element to look at here  the statute of limitation issue is separate from the standard regarding a motion to amend and whether there is prejudice to that to the defendant in this case so we would  the plain language of the statute the full language from the webster's direct dictionary and the direction from the supreme court as well as the court's decision in  folk it was a two thousand and one case where the court held in a manner that seeks to identify previously unknown police officers does not relate back to the original complaint the supreme court has not over defendant and is expressly prohibited from doing so until the litigation gets to a point where you can turn that over but i respectfully disagree that lynn was effectively prevented from that information she certainly had avenues to get that information through a subpoena earlier in the litigation to the state to get the names of the individual because it is the state that holds the names of these individuals the city of grand rapids doesn't have a list of officers an accessor information either six hundred number the number of potential defendants that were the six hundred the number of officers who would have  and fifteen long after that statute of limitations had run there is nothing in the record pointing to knowledge by frank sure it's undisputed that it is the state that holds the information regarding the names of the individual and that obtain that information she had avenues to pursue in a state action to get that information she had two avenues that she didn't pursue pursue she didn't subpoena that information and tell the statute of limitations had run and so the of the police department so your grand rapids police department was served correct and then point did the complaint say that someone from grand rapids police department had access to the name data the city of grand rapids and ms hegland have to go to the state to obtain that information of who that individual was when we were asked for that information during discovery we promptly provided that information and there's nothing in the record previously about that however the court doesn't need to reach that knowledge because based on the plain language of the statute and the supreme court's direction inadequate knowledge is not a part of the mistake  and so that knowledge piece is not critical but regardless it's not in the record well thank you i wanted to pick up where i left off on the issue of qualified immunity in summary judgment because the burden of proof for the qualified immunity defense is on the defendants saying i don't know or i don't recall is not enough f defend a defendant does not get to benefit from their lack of memory and get an affirmative defense you don't have to and you certainly don't have any basis to assume that there is a legitimate reason i think madonna mcdonagh closed that door when it said in light of the legislative auditor's report indicating that fifty percent of law enforcement are engaged in the misuse of the database the court this court rejected that notion that they're entitled to the inference that they were acting properly moreover with respect to qualified immunity if served doesn't know then what's the evidence on qualified immunity that tips it in favor of the plaintive well sheriff himself testified that he had no basis or reason to look at historic photos and that's what he did here he looked at four historic photos first and then he accessed the demographic data which means he looked at her picture as well as information about what kind of motor vehicle she had that were registered ok he said he didn't have a reason to look at historic photos and that's precisely what he did here in addition the plaintiffs provided testimony that there was no legitimate basis for a look up so she has evidence that evidence counts and that evidence tips the scales in favor of plaintiff not only for purposes of qualified immunity but certainly for purposes of summary judgment this is a case where a defendant says i don't know and in the context of summary judgment it's critical that the plaintiff provide affirmative evidence and she did she testified i wasn't arrested i didn't call for service i'm not a predatory offender that has to be registered i didn't get a gun permit she testified to all those reasons that someone