seventy one year old grandmother who was wrongfully terminated by the defendant several years ago this is all donald file time we filed a charge with the e e o c in one thousand nine hundred eighty eight she was issued a right to sue letter and she has pursued her claim from the district court of arizona to united states bankruptcy court in delaware back to the district court of arizona and here before you today at the ninth circuit in one thousand nine hundred ninety mrs o'donnell found her civil claim in the district court of arizona she was in pursuit of that claim when the defendant filed for bankruptcy as a result of that bankruptcy and out of magic state was erected on missile donald claim pursuant to eleven u s c section three sixty two mrs o'donnell informed that she was restrained any enjoying from continuing her existing lawsuit or filing any new lawsuits against the defendant the district court placed mrs o'donnell's claims on our case on an active status and notified her that she had to move to lift the stay if she wanted to proceed forward in the district court mrs o'donnell petitioned the bankruptcy court to move this so to lift the stay on her claim so that she could continue pursuit in the district court of arizona she did not receive a court of spawn it's from the bankruptcy court and her case was dismissed by the district court of arizona in october of one thousand nine hundred ninety nine mrs o'donnell continued to correspond with the bankruptcy court in delaware and she received notice and if you receive notification that the same of listed she refile her claim in two thousand and one september twenty seventh two thousand and one where or go ahead and bring it to a conclusion in the bankruptcy court or correct show us that there's some other reason why we should continue to maintain this year in this court to six months goes by and then and then she does call to his attention she files some kind of a pleading with him explaining that the car broke down did she do anything she filed a motion for a continuance and rescheduling  missed shows she files in motion for a continuance and explains to him that her car broke down yes she does your honor and he says well i'm still going to dismiss it because you haven't done what i told you to do and you there you're to do it is that right yes now what she relied upon then on the automatic stay was that she could not do anything from that point further until the automatic stay was is what she did as soon as she received notification she refiled her claim september twenty seventh two thousand and one and went and was in pursuit of that claim for over two years before it was dismissed as time barred and we argue what we have here she believed that the only way to reconcile the dismissal without prejudice and the automatic stay on her claim was for that the statue of limitations to be told and as soon as the automatic stay was lifted she would prejudiced if it were required to defend mr o'donnell says claims however that fails to appreciate the cries of prejudice are met with the sympathies of the court only when they are predicated on a failure by the plaintiff to diligently pursue their claims because mr don diligent in pursuing her claim not only with arizona district court but also with the bankruptcy court in delaware again with arizona's district court and now here before you today then course cries of prejudice should be disregarded the burnette case their claims cries of prejudice should be disregarded i suppose the problem the whole idea of the statute of limitation is to give somebody a bright line so they know the underlying purpose is to avoid still claims  i'm not so sure you have time actually runs that we don't have much of a statute of limitations we have each time that happened we had to look and see well is it really fair to apply this statute is why the nature of the mistake that was made here which ultimately boils down to a misunderstanding of the law means the district court correctly rejected applying the doctrine of equitable tolling and second i want to right but he says well now that he's giving her a year i guess she isn't done he wanted her to do so he's going to dismiss that now what should she have done if anything at that point what her her proper course at that point just thompson and with the case law says is that she should have taken an appeal even though the dismissal was without prejudice it is an order that can be appealed and it's one that she needed to appeal in order to prevent her claim from from becoming time barred and this i think is laid out best in the justice case that we cite in our brief it isn't eleventh circuit decision but it's applying the same equitable tolling doctrine that's apply in the ninth circuit and that case involved have in this case and dean is the ninth circuit case that cited in our papers that talks about the ability to take an appeal from a dismissal how prejudice and i correct in looking at the tolling is a doctrine to be applied in very rare circumstances and sort of the bottom line concepts that the that the case is focused on is this idea of due diligence could a plaintiff exercising due diligence have pursued the claim and th standard in light of that in light of the fact that the focus is on due diligence of the case to say when the mistake is one based on a misunderstanding of the law we recognize that a plaintiff exercising due diligence brief where she says yeah it was it was a minor standing of the law which we know was mistaken if you can as i think she is saying either i do i think i don't recall specifically was she saying i  didn't know i had the right to appeal or i know she sang the automatic stay in my knowledge precluded me from filing another action hafter the dismissal even though it was out prejudice the automatic stay precluded that i think we would all agree that was sold what did she say she didn't know she had the right to appeal to off the automatic stay precluded the that's correct she's saying that she she understood when in just a court dismissed without prejudice that that meant she could refile another action and didn't need to do anything to preserve her rights and that's that's just a misunderstanding of off the right to future say about the right to appeal and  she didn't know a lot i think that's fair to assume what what suggested in the in the supplemental reply brief by by my opponents is that there may not have been a right to appeal but that's that's incorrect the dean case makes quite clear that the reason she didn't take action was because she had a misunderstanding of the law and a plaintiff exercising due diligence could have tain a correct understanding of the law and i think it's something that's sort of an important rule that the idea that to actually have to stay lifted he said demonstrate to me that you're taking steps to either have a stay lifted or reduce your claim to judgement the bankruptcy court he didn't he didn't actually require that you be successful but second i think in connection with this appeal appeal from a subsequent lawsuit we can't i think we need to be careful about how closely examine what happened with when the first action precisely because there was no appeal taken from him so i think here today we have of the title seven claim in the age of scrimmage nation act claims are time barred and the reason we say that is because the first action was dismissed without prejudice and again what that means for statute of limitations purposes is it becomes a legal excusable ignorant of the statute of limitations then there's court and other courts have recognized that even though the plaintiff may have exceeded the procedural bar put in place by the legislature  who work diligently in the bankruptcy court in delaware who was successful in preserving her claim there and who again spent another two years later getting her claim in the district of arizona we find that she was absolutely diligent throughout the eight years her mistake w reasonable mistake to be made when she received the order dismissing her case without prejudice she understood the dismissal without prejudice allowed her to bring to bring her excuse me on to her claim again the only reasonable reading of this day and order dismissing without prejudice is the idea that once you get the state lifted the don't doors of the district court are open to you and you can come back and rethought your claim that's what mr o'donnell did we respectfully request that this court recognize the equitable tolling i