leave to volley late amended complaint and it's in in the real question is the whether the rule sixty motions should be construed liberally or not which is an issue this court has already previously addressed the ninth circuit has previously  found that cases should be decided on their merits and rule sixteen b motions and excusable neglect motions should be afforded liberal construction and view for the benefit of seeing cases tried on their merits can i ask you just a few practical questions yesterday i never practiced in the district court under the electronic case filing system but do they alert you to constantly check the system know you on it what happens is you get it because i understand it in your declaration you said that your your items that you are receiving from the court were automatically stored in your red they were being out  sort of when you sign up for the for the to purchase a bit in the program like you're forced to do it now days but they do they alert you to keep on top of your emails and check check the docket periodic to be quite frank i'm sure they do in their fine print my practice is usually to keep on top of the cases i've never had this issue occur before i do rely on the e c f system i don't regularly check the docket on a weekly basis to see whether cords made a decision are not on the pending case i've had motions before the district court that haven't had the sit ins rendered for months and months at a time in excess of six months so not having heard from a court for three months does not seem unusual  and then also found my actions to have been unreasonable and put a lot of weight on that in making the determination of the rule sixty b motion should have been denied because the court held that it was unreasonable for me to not have checked the docket  of however the proper review for this court is whether the district court abused its discretion in finding that well the factual basis for her finding that you may have suffered some prejudice the passage continued of passage of time it's not inconceivable that of time however the standard here is abuse of discretion and never more it was looking at that the danger of prejudiced as one of four factors none of which are dispositive on their own in fact the court is required to consider all four factors which it did in this case regardless of whether your honour's whatever the question for you know the districts that he acted unreasonably in not checking the docket yes did you have any reason to disbelieve his explanation well your honor this is the second time that he had presented that excuse to the court he had prior had the you didn't think it was such i guess i should turn this question a bit differently you parent we didn't think you were inclined to immediately discredit his explanation because you didn't fall into an opposition is that right i did not file an opposition when he called and asked i said i would not oppose it was essentially a question between him and the court he had missed the court start line the court had the entire record before including the fact that he had presented this excuse in the past he was on notice and the court was aware of the word he never had i looked up but i can't remember the moment because i looked at all these documents other day or so but did she stay in her in her order but she didn't believe what he said no your honor she did not say she did not believe what he said was unreasonable not to check the docket she said it was unreasonable not to be monitoring its cases for that length of a time had this very same issue before this very same judge yes your honor the record basically says they like once maybe twice we're done yes your honor there are four factors all of which the court considered as it's required to do and the government does not believe that the court abused its discretion and denying his rule sixty b motion she the district court judge went through each one and accorded each one weight the court of the prejudiced factor lighter weight because the court did say slight danger of prejudice the length of delay was also put in our favor and the reason for the delay that fact was a relief as we finally three weeks i'm sorry three weeks it was more than two months after well the district court judge had not set a time in her order or original order when she granted your motion she did not tell you how she had to i think is on december sixth she realized that she had not set a date for his third amended complaint and so she issued an order saying it's due on the sixteenth he doesn't go into court until sometime in june but generally twentieth i think it is yes when when the district though it's a total of it's less than a month the court's order it appears that that is the factor that weighed most heavily to the court and that factor includes not just the reason for delay but including whether it was in the result ball control of the movement of the movement and this court has said as well that these decisions should be entrusted to the district court because they are in a better position to evaluate factors such as whether the lawyer had otherwise been diligent that this court said that in pink a you know i would just let me just say when they are i understand your argument and i understand the district court what the district court was doing but you know the practice of law has gotten so difficult and so demanding the district judges issue these very strict  filing orders that govern the way in which they conduct their business and that's fine and good but what she's basically doing is telling counsel and you to the government to everybody you got to monitor the docket constantly  you know it's just it's gotten out of hand so as i'm concerned i'm not practicing law these days i understand your honor and even if your honors might have reached a different conclusion this is an abuse of discretion so we haven't reached any conclusion yet i'm sorry is that even if you might have in this situation it's an abuse of discretion standard and i question for the court is whether the court abused its discretion and that is did she apply the correct legal role and everyone before this indicated that to this day he doesn't check his his computer or whatever were there to be another case same problem would it change the circumstances of the court were aware that since he is intentionally apparently knowingly fails to check what is required to be sure there's not a problem i think that would be well within the court's discussion to consider particularly since the factor plainly states whether it's in the reasonable control of the movement and there is absolutely nothing preventing any lawyer from logging on to pacer at various n r valse was there any discussion before the court when the sixty motion in which and has in his declaration he did say the first time i looked it was january ninth and presumably that implies he had not left but there was nothing before the district judge in writing certain orally apparently that would have suggested that his practice of not looking was an ongoing issue that he was planning to continue that practice that was that i don't believe us before the court particularly experts are familiar with the computer practice these days is it not enough to know if you signed up for this their e mail and with their computers all the time it's not unreasonable to expect attorneys to occasionally maybe not every week  harsh should the court be with itself for doing crime in this case your honor as as we've discussed he was on notice of this issue had already been given a second chance when he missed the deadline earlier and and the progress of this litigation for this very reason and at that point the order denying a real sixty motion does not address the fact that he had already been given an excuse me given an extension based on the same excuse however the court that was in the record before the court  considering what the court did in the rule so it would require me to speculate but i would presume that it did considering the place the greatest weight on the reason for the delay and the appellant's failure to monitor his dock when we filed when i file that i made clear in a declaration that i was under the impression that i must have inadvertently archive the initial e mail that came in later on i came to find out that they were being all on him at the archive in fact i was getting any notices relating to this case including the substitution of attorney by defense counsel in the case and i addressed that with the court and the court did find that i did act in good faith if the court thought i was remiss and was not participating in the case i'm sure it would have been indicated in the course decision there and just to clarify the court that this case was dismissed on december twentieth i filed my motion on january tenth it was less than a month that the real issue is  stated earlier i don't believe it's reasonable that or in this day and age with the e c f system that attorney should be expected to check the docket on a weekly basis monthly basis and what have you especially given the time that it takes for a course to issue orders and the reliance on on the e mail system that we have what we have i didn't counsel computer literate literate and i strongly recommend you change your practices because you're going to be in big trouble if you keep doing  this you've got to check you've got to check all the time that's the nature of the system we deal with now you can't just rely on well my computer it's like the dog ate your homework by going to work whether we'll in this case i don't know you don't do it anymore you're going to be in trouble i appreciate that and i will i will change the practice and to be clear i did check the docket on january ninth because it had been three months since i'd heard from anybody on the case i guess the point that i was trying to make is ultimately when you're weighing the opportunity to raise issues that they felt they were being prejudiced in this case the only party that's prejudiced in this case is my client due to my mistake i didn't see the e mails and i don't think he should be punished i think the court has already