that we have this morning is my name is gary bowman i'm representing the appellant's karen foster and vicki marsh i'd like to first address for factual small factual issues that reading the briefs again are not clear from the briefs and i'm not sure how much difference they make but and they're not clear first is the amount of time that elapsed between the mandate from discord from the prior appeal until foster in march filed their motions to intervene mr w briefs it was four months it was not quite four months was about three months and three weeks the second point that i want to clarify is that mr wynn says in his brief that made me ask you the yes or no he said yes you just make those corrections when and if they become necessary to your argument and we we've read the filing in this case let me ask this to you you do agree don't you that your statute of limitations by the time it was a motion intervene yes sir that's correct and then there would be i believe some requirement of equitable bowling for you to be able to get around that block y or so there are two factors under the supreme court's pollen versus florida case in this court's harris versus hutchinson case first is whether the intervenors acted with reasonable diligence and the factors i think that the court should look at here regarding reasonable diligence is that there's a four year limitations period on civil rico and that's the measuring stick of what delegitimation if you stop you yes i guess the condition  preceding is you don't think this appeal is is moot no sir no sir because if it went back to the district court the district court could decide to let the interveners proceed with an independent action so on reasonable diligence  there is a four year limitations period that's the measuring stick of what diligence is absent this appeal reversal going to this the some unusual circumstances of this case in march would have four years to bring their civil rico case if they brought within the four years that would be deemed reasonably diligent they didn't bring it within the four years they blew it essentially here just judge moon said that they weren't reasonably diligent or marcia wasn't reasonably diligent because she waited three and a half years that's true she did wait three and a half arsenic i think you know i think you misread that is that i read the you know i think he doesn't limit you to three and a half years i don't think i think he's just the just me as an example of you could have done something even before then but i don't think that you think he ruled that you only had a three and a half years that you let me know so i don't think you rolled that way and i think that you read it correctly but the point is that taking it that way yes that's true but that doesn't really mean that she's not reasonably diligent because she had four years sure she should have like everybody on most things that they do should do things sooner rather than later but she had four years and so to deny her actual but equitable tolling in these circumstances is really to take six months off of her four year clock and that's tantamount to shorten it depends on the way that i'm presenting it that's tantamount to shortening her statute of limitations or limitation period what will you prevented from doing doing doing that final six well it wasn't just that you could have taken yourself in your argument ok the question that really gets at extraordinary circumstances i think as much as reasonable diligence what could foster and marsh have done in the period after the district perspective of down here in richmond at the batch this case looks differently than it does from down here as a lawyer with the civil rico case in district court when we were here before when judge  emotions than i but but at least the lawyers take a misstep and judges and judges understand that no sir i'm not sure they do and i don't think they do that's what i want to talk about no sir i don't think they do ok i think that is no the record i said judges do understand that and you said judges don't understand sir yes sir and i'm saying this from the perspective frankly a lawyer who has been sanctioned by district court and i say it from the perspective of a lawyer who has defended other lawyers who have been sanctioned by district court in a civil rico case this particular judge in a civil rico case against another lawyer as we discussed over here before but that's a very broad statement it doesn't say anything about the nature of the sanctions the merits there or are you suggesting that this judge would have sanctioned you had you gotten up in court and said your honor i know that your rule case is going to be appealed in the meantime the statute of limitations is running against my client and i'm following this lawsuit in order to protect my client's interests are you saying that you would binge thank you for that and i'm saying that if there was a dialogue where i was in front of the judge and saying that and that then that's possible that that could have occurred well that you know depositor and then you would have appealed the sanction and come before us and presumably if you had filed that lawsuit in good faith i would think that this court would have would have decided in your favor i mean there and i know this is hindsight twenty to yes or all that that's exactly but what you're asking the court to invoke its equity jurisdiction you've got to make a showing that you did something more than just sit around and wait to see how the appeal would turn out in this case yes sir at the as i was saying before when we were here last time the one of the main things that we talked about was how district courts disfavor civil rico and that the court opinions are basically metaphors of why you can't have a civil rico case now this was already a disfavor cause of action the district court here on the same facts had already ruled that the civil rico continuity requirement had not been met mind you you clients request that you after the district court dismissed it we came here it was reversed we went back and the case was settled ok so it was a successful civil rico case however in general there disfavored and they were disfavored this case was disfavor by the district had filed realistically i'm talking realistically if that intervene or had filed a new suit which they could have done on their own and met the statute of limitations if the interveners had filed a motion to intervene in this dismissed case there wasn't a case it was dismissed so there was nothing to intervene in a week whether they could have intervened in the eleventh hour know what additional court keeps certain ancillary jurisdiction after cases full hardy to go right back to the district court after the district court had erroneous lee dismissed this case and tried to intervene now i understand there are all kinds of things that can be said you can listen to that it will harding of another lawsuit  limitations would not be what you argue well the prudent thing that my learned opponent would have done is he would have filed an answer or excuse me he would have removed the case from state or the district court and he would have filed a motion for sanctions now this this dialogue that was the court here visualizes what occur that's not how the motion for sanctions work they have to send a twenty one day letter in which case you threatened my professional standing the fight in the court and so i was sort of given a hobson's choice and i couldn't i didn't want to be sanction but i took a step to take action within the statute of you would now be in front of us on some kind of appeal or something going i try i try to my client i took and action within the statute of limitations period i took it maybe it wasn't the right one your honor but i did something to get matter call to the attention of the other side before the statue of limitations period right there sure real world and this is this is not what i would do it now and that's not something that that i was prepared to do as the lawyer now could the clients have gotten someone else to do it maybe but not really they couldn't because of the complexity of the case because the posture of the case the district court had already dismissed that they couldn't realistically gotten another lawyer now the standards here and i could have all tolling are where they reasonably diligent not all possible diligence the supreme court said in holland versus florida it is not all possible diligence it's a reasonable diligence now here there months and three weeks that was the factual thing that i said at the beginning of my argument why don't you do it early that's fast as that's as fast as that could be it could be done now in terms of reasonable diligence given the complexity of this case that's reasonable one could say it's not reasonable certainly but that that was as fast as it could be done in terms of the extraordinary circumstances which is the second part of this test hey this is a court this is a case of first impression this hasn't happened before it's an unusual and extraordinary circumstance now the only things that would vitiate or that would have satisfied these extraordinary circumstances is they could have filed their case sooner yes they could have but their measuring stick was the four year limitations period the what they could have done is they could have filed some action in court and frankly it would have be in the appeal and let me tell you this much you might be denied but then you would have taken some action and we are going to bow out that you didn't take any action to was the action you took to defend your client position  d well my time is running out but if i could just answer that very fully the the adlie has not raised that argument about the intervention on the appeal and frankly standing here it sounds to me like that's not something that could be done but of course you know i haven't researched it i don't really know whether that could be done but i don't see how a party who had not moved to intervene in the district or good then moved to intervening in the appeal in these circumstances they file a motion with the court mov may please the court chamouni on behalf of you know use we believe that the trial court's decision to die the motions to be to intervene should be firm for three reasons the first of which you think is not  we believe that the issue is the appeal is moot given that the underlying case you want to argue that first do you think do we have jurisdiction to hear this case is this is just a matter of motion of intervention is it moot yes or no  the right to review a motion to keep some judgment the court to keep somebody out of a case don't we have to have a right to me yes you do have the right to review it but there's there's jurisdiction question of the motion its sale and the mayors of the of the motion of the statue of limitation is that fairly in front of us for decision of this i don't think so your honor ok that's what i was asking but now the second question is but i'm asking you this don't we as an appellate court have to have some opportunity to review a denied motion to intervene at least in some circumstances  shirk ok so we do with this is just not the right circumstances that's correct why's that so well then listed two types when would it be appropriate and when would it be appropriate to get beyond your mo well i don't think it's appropriate in this particular circumstance because what the court what what appellant are actually asking the court to do is to send the case back to overturn it we know where they are and it's  we know what they're asking to do you know i sit distinguish for me when you think it's you wouldn't be moot and when the issue is moot now you told me you think these facts make it moot what kind of motion to intervene case every case is settled into generally before it gets to us i don't stand that they may ask you this much do you think i still can't get an answer from you i'm trying to decide what you think when would it be appropriate for us to review a denied motion to end of the win after that motion the case is dismissed or settled when would it be appropriate i guess i don't have i don't have the answer for you here today so you think it's never appropriate up i'm not saying whether it's always appropriate or it's never appropriate i just don't i don't think i have the answer for you to today what's your best case i mean you rely on this just chesapeake bay entitled if they if we agree with them they haven't been made whole and they're entitled to their own relief if they can get it i don't think they the chesapeake bay case went so far as to say that the plaintiffs were entitled to the same exact relief i think that was kind of vague on that particular point as the parents point out that the plaintiff's cause of action is is independent of the the intervenors cause of action and we knowledge that fact but we think the rub of the and then by the actions of others they settle they're not party to it and they can't vindicate their rights now because they've settled it but they made the motion of doing that they want to close i think you know i  noted that this was a circumstance where you had three women who have alleged predicate acts against mr wynn and his related entities and this was a this was clearly a close thousand and eleven it alleged predicate acts along with marsh and foster so it had been a very easy or martian foster to essentially piggyback on that lawsuit but rather they adopt a wait and see strategy it's like a train moving down the track they're waiting to see if that train derails or if there's some sort of settlement so they can hop on shortly before the station and that's exactly what they did in this particular situation they they waited near marsh herself waited nearly seven years to file something remotely similar to a rico action merely if they had bile that would you have moved for sanctions well your honor it is very similar standard that attorney has when filing a brief and rule eleven b essentially states that you can ask for a good faith modification or adverse will of the law we did not ask for sanctions in the to district court's decision i can't say i can't say there's nothing in the record saying that where the we did it would not ask for sanctions in the second case but you know if those two cases would be similarly situated you know the appropriate course of action would have been to intervene prior to the appeal and then taking the appeal up together or shortly after this district court or this the circuit courts reversal of the district court's decision whether you believe it was three and a half months to six months at some point in that time there could have been a filing much earlier boat again there was no demonstration of diligence for seven years prior to that or a five and a half years prior to the district court's dismissal or the three and a half to six months after the reversal and so you have you have experience in your practice in the law you make some motion knowing that on the current law a lawyer is going to lose but you just explained to the court that you have to make that motion to take some interest absolutely and you know and sometimes you go before the court you're she sheepish and you say i apologize your honor for doing this this is the course of defense lawyers would stand up and go your honor i move that that document can't come when i know your honor that under current law in the force or kit that document can come in but i make that motion because i want to preserve that is you and preserve that issue so that i may argue it and you go ok the emotion is over room but judges understand that and i think you're ours you can look behind the reasons that the lawsuit was not filed sooner if they were clearly adopting a wait and see strategy and that's not the purpose for equitable application of the equable tolling doctrine case law is pretty clear that it's only for circumstances outside of one's control and they clearly had the control and ability to file the lawsuit they just chose to file that later but even if we don't agree with you that they were waiting a wait and see strategy the fact of the matter is they could have taken the action that you propose and whether was benign reasons or they dismiss the board counting correctly that doesn't matter in this case does it no we don't i don't think it matters and they could they had every opportunity i mean they knew the suit was going on and there was clearly some communication they knew that by discussed by apparent discussions with the plaintiff in the underlying case they knew this case was ongoing they could have easily filed what do you make of the contention that at least one of these plaintiffs was suffering from a disability that  may have influenced her ability to actually protect her right well if you look at the motions day in the motion to intervene marcia ledges that she suffers from autism the point of reference to autism was simply in the context of explaining how she was allegedly prodded by when it was not proffered for the reason to establish that was the reason that precluded a timely filing and this is the first time that i've heard about this issue is on appeal and it's an issue and tactic of essentially monday morning quarterbacking scouring the record to see if there's any other issues that they can raise on appeal and i think this this circuit in the united states versus moves has decided that issues heard for the first time on appeal cannot be considered and there was nothing in the record to establish not no affidavit establishing that she actually suffers from autism marston support any support that factual statement we have no doctor's reports we have no medical evidence to determine or to submit that she has autism so we don't even know were essentially speculating what is one of our review case is just limited to the due diligence problem we also think that there's an absence of extraordinary circumstances but to answer to your name it had a vote and the district court found that there was the existence of neither but if what marsh and foster are trying to do is not there's two components that i see on the diligence prong it's what actions did you take and how quickly did you take them if you look at martian foster they didn't do anything their actions had they didn't do anything in terms of trying to file a lawsuit they point to marsh points to complain to state and criminal state and federal authorities foster points to actions she took in her bankruptcy court and challenge the foreclosure of her property and the city of one's birth so if you look at just what they did there was nothing remotely similar to filing a rico action but then you also have to look at the time component that they took very it took a long amount of time to finally move to intervene in the case attorney next to the extraordinary circumstances point to the district courts this missile from that time until this court's reversal that that constituted extraordinary circumstances and i ask this court to focus not on how unusual the circumstances are but the severity of the obstacle that would preclude the filing and again under extraordinary circumstances you typically focus on the conduct of the part of the part of the defendant or for circumstances beyond plaintiff's control and what they are asking this court to do is to basically apply a different standard because they're saying it's an unsettled area of the wall or uncertainty of the validity of their claim and there's there's circuit court decisions out of the second and seventh circuit or the third and seventh circuit that demonstrates that the uncertainty surrounding the air and area of wall is not sufficient to constitute extraordinary circumstances and that's essentially what they're arguing here today and so that really shifts the control  filing once clase a case to the point to the appellants because then they can come up with any conceivable argument to cast doubts on the validity of their claim and so basically yours you're switching the circumstances from outside of one's control to control of the appellant's and we don't think that's proper it's a flawed standard and it the economic tolling doctrine is to be reserve jewel hardships it's not to be applied liberally and it's only to be reserved for the rich for the most rare circumstances the last point of our argument is that equitable tolling doctrine does not apply when extraordinary circumstances occur after the limitation period has run you heard from opposing counsel that the for your statute of limitation applies in rico actions we have a limitation period that ends after four years of the date of injury if you have an extraordinary circumstance that curves twenty fifty years down the road well that did nothing to preclude a timely filing and that's what we have action all the way until this court reversed the district court's decision so it's that length of time that creates the extraordinary circumstance and that they were precluded from filing bring that period but if well it's the discovery of injury but they knew earlier marsh for and is that all you've been necessary for you to win this case that they knew for five years is that argument necessary again we believe that in a conclusion we believe that the district court's decision to deny the motions to intervene was proper because the equitable tolling doctrine did not apply for two reasons as i just stated they failed to demonstrate that they exercised due diligence and actively pursuing the rico claim and that two extraordinary circumstances did not exist thank you your honor i have one last question on it and of you that is if you maintain any of the honor it's how we interpret those facts if according to the appellants you know they point to facts that occurred much later that would alter the running of the limitation period but as as as far  the court asked mr mooney when should review be allowed and circumstances like this this this equitable tolling jurisprudence really focuses in the supreme court said in holland versus florida it focuses on the particular case i'm not arguing for a rule i'm not even arguing for a precedent i'm saying in this particular case these are weird facts and my clients were harmed on these strange facts with the their motion during was pending then there was an appeal out of the case so they had to intervene before the case ended now my clients had four years under the statute of limitations mr mooney argues the statue of limitations had already expired you have a judge district court didn't buy that they had four years ok because the district court erred wasn't our fault was fair game for the district court that happens they erred because the district court erred six months were taken off m foster's and mrs march's clock then this court stepped in and reversed the district their words are to do what they're the clock to intervene now what this case comes down to i think based on the oral argument and based on the briefs what it comes down to is should they have done something ok did they do nothing to the extent that they're not entitled to equitable tolling now that's simply i think a matter of judgment of course but our argument is that in these circumstances what they did will and miss foster's case gave you look at the facts which is not some we've talked about here but it's in the briefs ms foster had filed bankruptcy and that bankruptcy she had listed a rico plain and the bankruptcy claim was the bankruptcy case was pending at the time the district court dismissed the case now remember she still had six months on her clock she had said and her bankruptcy schedule she had a rico claim it's unreasonable to assume that if she didn't have that six months she wouldn't have filed the rico case now that gets back that well she should have filed earlier ok she should have filed earlier but she had another six months so she didn't know she wasn't going he was going to get cut off and also in terms of six months to  file a rico case she had six more months to file the rico case but the district court said that this is not a viable rico scenario and so she couldn't filed a rico case in our estimation because the district court said that these facts mr wins actions didn't constitute a viable rico scenario now and hindsight and it's strictly in hindsight to use judge diaz's words in hindsight think so so you are relying on them of healing this matter yes wanted to protect your rights this is an unusual circumstance ok when the district court said that the rico continuity requirement had not been satisfied on these facts perspectively at that time you know you assume the district court is right and prospectively even you assume odds are that's going to get affirmed up here and so ms foster and ms marsh could have then filed another rico case filed their own rico case even though the district court had just said this is not a scenario for rico case and know what you've got us back to the limitations and you've got an waited until it was dismissed and then you waited until the appeal reversed and then you come in and then you waited there you said you had to wait three and a half months later to  why they're these people were entitled to equitable tolling is because if they had done something in the last six months i don't think you know certainly they could have done something in the first six months in the first they did nothing in that last six months of the limitations period when they could have that's true except the extraordinary circumstances here was that this district court had said on these facts that that was not a viable plank so either those people can go straight into the teeth of the district court that had just said this case is not viable or they could wait to see if the court of appeal said it was viable and then seek to intervene and if the court said it wasn't viable to end i was the end of the story but the district court error and this court's fifteen and a half months of deciding in which are not a district courts not you know out of bounds i'm not saying that it was wrong you know that i mean it yes or that say yes or all i'm saying is that the this is an extraordinary and unusual case the