with and that's why we're here there's two ways we can approach this case easy way and the hard way at least for me now if we look at the excerpts excerpts of record pages forty two forty and forty seven it refers to and that's that's judge hagan's order now if we look at that it refers to the undisputed statement of fact brought about his arrest did not contain instructions concerning conlin's duty to contact the parole commission on his release so we know number one he was not properly arrested because there were no grounds for that arrest  that required him to report the other thing is as we know in this case mr carlin what's arrested while he was still on the first parole term just ultimately there is that maybe any dispute by the government to all these facts is there isn't the real issue here whether or not the magistrate judge abused her discretion with regard to handling the deemed me that requests for information and that that's correct your honor and doesn't the case turner stand or fall on how we resolve that issue it does your honor but if we look back and we look at the undisputed facts then we know that unlike other cases like the have the case that united states in this case and number two is it's not the side on the merits we know it's not the side on the merits because we know the merits of this case and that's how i go back to the undisputed fact that are you trying to link merits into either some conduct here i through being to the government or to lack of prejudice what's the relevance of that argument because we don't get there until we figure out whether the admissions are in or  well in this case your honor provides background in deciding whether the case will be decided on the merits or what are the merits of the case in this particular instance so that's why i go back to undisputed facts that's why i go back to a decision that's already been made by judge hagan that in fact they were wrong that in fact they were wrong and we look at the footnotes on page forty six and forty seven we not only know that was not liable so are you saying that there's no discovery they could have conducted in the face of these facts that would have perhaps allowed them to escape from a determination of liability ma i'll answer that question with a question your honor what possible discovery could they have conducted after four years that would have given them a defense in this case and you have an answer to your rhetorical questions  else the other witnesses for the state office i mean the united states officers the probation officers they could have brought them in it's that well i don't know what their defense possibly could have been because they were on notice not should have been on notice late motion to withdraw i i do believe your honor that sanctions would be appropriate i would look clear what kind of sanctions which is why he's doing the united states family typically your honor is that they've he could have been saying who would have been money sanctions if it is a practical matter that's not going to get us anywhere because in every money to pay the sanction so what else are you got to ever think your honor may please the court my name is greg addington the new assistant united states attorney for the district of nevada in reno i was pleased to represent the federal officers and federal agencies including united states for the district court in a pleased to represent the united states as the telly before this court the character and substance of this case evolved over time during the three years it was pending before the district court  changed from a civil rights complaint against multiple agencies multiple officers based on alleged violation of mr collins constitutional rights and evolved into a claim against united states under the federal tort claims act that was accomplished primarily through a stipulation of the parties in may of two thousand and three which dismissed all of the claims against all of the defendants except for the claims against the united states to the provisions of rule thirty six that impose that consequence on the failure to respond to the requests for admissions to the government because they are there's obviously a provision in the rules for court denied the motion for relief trial was only eight or nine days away the discovery period of course had expired some months earlier and during that discovery period the requests for admissions were promptly propounded so that enough time was left at the conclusion of that thirty day response time to conduct further discovery if it was warranted and still today because so far you've been telling me about the court case concerns not just liability but also a claim for damages and if mr carlin had denied timely requests for admissions he would have necessarily denied the issue of negligence obviously but also there were issues of damages set forth in the requests for admission and i asked him about his further incarcerations post release from the hague is proceeding and so there is no question but that i would had been pending before the district court threw motions and amended complaints back and forth or three years there has never been an open discovery period until august of two thousand and four when the court set out a sixty day discovery period that you didn't notice his deposition in that period of time i did not she says the hype was always during that entire three year period of time there was always a motion to dismiss that was pending before the district court and so i saw no need admissions and they should have let things run their pace but it seems that the district court was more focused on his badness so this week as opposed to the prejudice to the government and i just seems that perhaps the district court was looking at the wrong standard would you comment on that i don't think the court was applying the wrong standard the court put the failure to respond to the requests for admissions in the context of other failures or delinquencies by the plaintiffs and i think that was appropriate i don't see any reflection in the record or in the order that suggested that the district court was still bothered by some delinquency a few months earlier that it was somehow punishing or imposing a sanction on the plaintiffs the motion for relief itself did not set forth any basis for granting that motion it did not have any evidentiary materials associated with it that would suggest that the matters set forth in the request were somehow incompatible with the appreciate from the government's standpoint the frustration because you did your case in a way that seemed to be played by the rules you did everything by the rules you were incredibly professional and writing to them and saying heads up you have an answer if this is so you did everything by the book but it but it seems that the cases really do focus on prejudiced to the to the other party and i just haven't heard it yet but maybe  well there's a two step standard and prejudice is one of those steps saul addressed the prejudice issue again and i think the prejudice arises from the fact that this was nearly three years into the case the district it for trial and the government and justifiably relied upon the operative effect of rule thirty six and prepared its case so that those matters would be deemed admitted a trial but through summary judgment and so the government prepared some motion for summary judgment based on the record that then existed at that time there was no motion for relief pending and so the government justifiably relied on the significance and permanence of those admissions and then only after the summary judgment motion was pending did the motion for relief coming in some two months after the request responses were due on the requests for admission by that time the trial matter was set for trial and even at that late date in early january of two thousand and five with the trial date a week or so away plaintiff still not identified which matters he wished to withdraw he simply said well there's several of them that i want to withdraw the court didn't know which ones do you want to withdraw which ones are still going to be admitted the government has a right to know with trial a week and a half away what is really going to be the factual issues to be adjudicated by the court and what are what's going to be the subject of testimony before the district court so even at that late date in early january two thousand and five the prejudice was still explicit that nobody knew what really were the critical issues the facts to be determined at trial the other standard before we even reached the prejudice issue is the plaintiff must demonstrate that the presentation of the case on the merits would be subserve by giving effect to the defaulted admissions if you will and he failed to meet that burden by failing to present any evidence you materials that would suggest that these admissions are somehow incompatible with either prior testimony which there was none or incompatible with a declaration from somebody in which there was none or tort claim and that seems to be what is implicit in mr khan and argument for this court that he can simply wave around this order from the district of arizona and say here it is i automatically when clearly inmates file post conviction these proceedings and sometimes they prevail the fact that it prevails on a post conviction proceeding doesn't automatically mean that he has a tort claim even though the argument was just made that was where the admissions incompatible that was the question they would have discovered that they properly done discovery well that's not at all the case because what we know they were incompatible with the facts because the facts are there undisputed facts and we are where number one that he was falsely arrested by the poor probation officers number two they did that back in the midwest and i think michigan or somewhere like that minnesota anyway that they did that without a warrant he went to the hearings and he put them on notice and it's in the record he put them on notice that they didn't have jurisdiction because there and then even after they were on notice they said his argument was weak and that was the argument that we're here about so there is no incompatibilities argument he didn't show good cause for relief or i could you address that because there really isn't much that was presented to the district court by way of justification to grant the relief that it was requested other than i'm going to lose my case if you don't let me withdraw my admission well what we the court was on notice of the facts in this case the undisputed material fact that was the argument with us is the issues of will says that th kind of blew you off well that's exactly it your honor you know he went to las vegas and all we could put in was we have not been able to contact this fellow but it doesn't change the nature of his  this motion should be green well i don't say that i mean arguably when we look at everything and it's in the grand scheme of things what constitutes legitimate reason in this particular case we have somebody who was of the understanding that he had an excellent case that he was on we were unable to find him for a short while not a short period of time but a period of time but when it comes down to it it's kind of like no harm no foul there was no president there was a valid reason for i mean this guy gone through in essence three attorneys then pro state out another attorney who gave him up and then we ended up with