morning your honor is money ms terry barber i'm a lawyer from lincoln and appreciate the opportunity to be here this morning to talk about this present case i think there's there's the briefs have done   they are members of the hastings police department that have a custom of profiling based on on race and in particular this panic heritage of this of this fame can you identify your claims in the complaint claims have you made in particular well in particular a general description of what you think happened one of the claims well originally there were a number of claims i think there were eight different claims separated down and we now arrive at individual claim individual capacity claims judge against the police officers in hastings based on the equal protection clause of the th amendment ok now but the continuing violation argument against being you're being your client being time barred and your brief says that the claim is that the police department has use ethnicity and culture as motivating factors for law enforcement decisions what precisely are the law enforcement decisions that are the basis for the continuing violation i think judge that there one of the one of the things that occurred in this case was the continuing conduct yes but argument was not every decision that not true in this case what didn't you voluntarily dismiss all your claims in state court and then you amended a complaint that no longer existed no isn't that isn't that what happened i don't think so judge what happened on the  capacity in official capacity official capacity with prejudice individual capacity without true now under under such decisions as three river which is in one circuit ca the state court his decision with respect to nine hundred and eighty three dollars was not final an appealable at that time a get that that's not my my concern isn't really about what judge rosseter did it's about what you did in the state court right so now the claim is sitting there in the state but weren't and you voluntarily dismissed your complaint is that not true that's not true we voluntarily dismissed some of the claims what was left and what was left was nine hundred and eighty three where right so let's do it i mean how do you amend that the individual capacity portion of it was still alive controversy the issue and i think that this is this is part of the reply brief i tried to be as specific as i could about it but but the fact of the matter was that during the month of august of two thousand and seventeen if up by recollection is correct we still had a live controversy during that period of time as of july thirty one judge illingworth ruled on all the matters that were dangling which were attorneys fees requests and so during the month of august and from july thirty one for thirty days actually there was a live controversy because judge ross wooders decision became a final order when judge illing worth put a period on the case now during that time that it's a live controversy sort of issue i believe and i think i think all in response to the motion for leave to amend one of the things judge illingworth did was st of all consider the amended complaint because it was attached to both of the motions the motion and the amended  motion and then made very specific findings in his in his in his order of december twenty eight i believe it was a two thousand and seventeen when he clicked through the factors that he was supposed to consider and i think he understood fully because he recites in his journal entry the history of how we got there and so he had it all in mind and while pleading is to be  be liberally liberally allowed when justice requires both in the federal in the state system he also knew that this was a little bit different of of a creature in that that his his his discretion  might not be quite as generous because of the posture of the case but he specifically went through the factors of such things as undue delay and in prejudice and so forth and in particular grant of leave to a man resolved ollie's issues in your favor i think way that bound to the district court and now this court i think that that the judge made a very clear finding that the that the pleading under nebraska law  record i just can't but you're arguing that we have to give that legal effect i believe that the pleading has been passed on by that decision yes now it doesn't mean it doesn't court a court ruling on granting leave to a man is binding on the federal court with respect to statute of limitations and and  to maintain one of these types of cases in the in the federal system and i think that one of the things that happened and professor miller has pointed out in one of his  impacts whether or not this claim is time barred but statute of limitation and time are questions or waive a bill and never addressed by a court until someone actually brings a motion saying it's time barred i mean if you went up a defense that says the claim is time barred the court does not just decide oh it's time barred it wait for a summary judgment motion on the basis of that of that bar you know and i think that's i think there's enough in the complaint to survive that at the pleading stage i'm not saying anything about its ultimate success but there is there is enough alleged in the complaint about a course of conduct to survive twelve b that is not time barred in your in your general statement about course of conduct that violates the equal protection clause what did they do to the plaintiffs in the four year applicable period there is nothing in the in the operative complaint that describes those things with particularities there is however what then how can it possibly from the language of that conversation indicates that it's reasonable to infer this was ongoing ok but what was done in that in the damage period that is actionable as to these pla what specific conduct by anyone by any law enforcement defend than it acting in his or her individual capacity or yes these plaintiffs during the during that statute of limitations period are you asking me to explain some of those to you or whether they i don't know why you can't you can't go outside the record i don't see it in that the complaint has nothing that isn't time bart except a general allegation that these are bad people that have continued to do it it is the general  has the admission of one of the one of the officers that leads that allows a very reasonable inference that it did it before even to the time that your time is up but do you have a an equal protection case may please the court my name is curious here and i represent the defendant the police who i will refer to throughout this argument as the officer defendant today i will argue that this case  knowledge that this court lacks jurisdiction to consider this appeal and that the nd amended complaint was barred by the statute of limitations can you help me understand and grasp the law a little but the point of sight to the statute that  the inherent power of the district court to vacate modify a judgment within six months after entry does that apply here did it because i think it did happen within six months did that give the district court the authority under brassica law to revive that complaint no why is that the reason why is because that st of all the right to voluntarily dismiss complaint and have that be an automatic dismissal is a tory so that actually trumps the inherent power that's at issue in common law essentially and well the statute actually if you read the very st pradhan of that statue it states that it talks about the inherent power of the court which is in case law so it has the inherent power of the court to renu these types of cases or actually does not what it says at all it basically says the inherent power of the court to change in order continues for another six months  referring to this case law that are he exists in saying this is the inherent power that you have and then they're extending it six months but beyond that we have several cases including lever says fletcher warner one a voluntary dismissal automatically enters its automatic at that point in time the court can't go back and enter anything that different from that and that goes back to the statutory your case it's no longer pending it so that doesn't qualify them as a judgement just if the district court then enters a judgment dismissing that that complaint that can't come back and modify that that's your position that is a yes and it and i agree because it is discussed in a statute it seems almost as if there's two different statute that maybe could have a different effect but in reality the voluntary dismissal that have entered with prejudice a similar holding existed in i think it was either bovine warner versus warner where a party any is a very similar situation to what we have here a party didn't mean to dismiss their whole case but they did they they didn't mean to dismiss all the defendant but they did and then they filed a motion to amend basically exactly like what happened here to try to get the case to go back again and the court automatically entered it ended the case it was like it never existed to begin with so so this isn't an issue of are not meeting the derivative jurisdiction this is a matter of a case that just was never pending at all is what you're saying i believe that is an accurate description essentially of the the moment that the voluntary dismissal automatically entered the case ceased to exist there was no longer a complaint to amend so the case is a no so we can look at that and because we don't the derivative jurisdiction one thousand four hundred and forty one we don't need that but it but what you're distinguishing this is to say that we can go back and determine whether or not that was even a pending case even if a district court in the nebraska made that mistake and thought otherwise we can make a different decision the nebraska court i think so and the reason why is because that the question is whether or not the case you're looking at exists at all i mean but the new boss of court thought it state district court the state district court granted the motion to amend even though there was no i mean why how could it be up to the district court except removal if it of something that didn't exist to remove that's a i don't know what the impact of that would be able to be different than than what you're doing us to do what appeal well i think that you can dismiss the appeal for lack of jurisdiction  jurisdiction i guess if you think that there is a researcher you want us to go into this wall correctly well you can and maybe you don't need to because there are multiple reasons why you could have firm the district court's decision based on the dash of imitation and based on the fact that the complaint failed to state a claim upon really upon which relief can be granted even at the nd amended complaint stage i mean if you if you look at the statute of here and the same result should also be reached if this court finds that the federal relation back doctrine and federal rule of civil procedure fifteen applies if the court would look to harbor insurance company versus well i think the reason is because that's one of the most interesting issues that i didn't know until today what was being alleged i didn't know today until today that it was the th amendment equal protection claim frankly  knowing that it was a little difficult to argue when the statute began to run not knowing what the actual claim was and when it accrued so so to be honest that that the big reason why it didn't start there but i did and they're both here and in the brief so for all of these reasons i think that you can either dismiss this appeal for lack of jurisdiction or from the district court for lack of the the supplemental appendix but in particular both the dismissal in then judges journal entry that followed that the complaint was done not dismissed there were specifically stated claims they were there were made part of the statutory dismissal i in state court now i'm talking to state court and you're saying that it wasn't  claims specified and they were very carefully specified both in the dismissal itself and in judge's order he was very careful to to specify which claims were dismissed is that the the the operative complaint which i believe is the nd one only went to the cause of action that was not voluntarily