with prejudice claims that never existed this drone yes claims it now exists because when he filed his lawsuit back in november of two thousand and fifteen his claims that exist because he was still subject to a criminal conviction  state court criminal conviction was vacated by the oh please let me tell you what i see is the problem that you have here so you're right that under head the practice would have been to the right thing to do would be to dismiss this with lapsed and essentially what's happening here and more than a year lapsed after you know there is plenty of time after he was aware of the dismissal with prejudice that he knew of the courts so my problem here is that it seems to me like putting aside the fact that whether you raise the rule sixty motion in your and there's a brief there will fifteen motion or waived it by not bringing it up into your reply seems to me that your problem here is that you're essentially if you were even allowed to make one there were there was already the signal that mr o'neil was not actually receiving actual notice as this as the search circuit court has always required actual notice of the possibility of it as a rule forty one involuntary dismiss he wanted so he could try to file a rule sixty be within a year the problem is your honor he never had actual notice of any of these and he did not find out until at least at the earliest date about december two thousand and perhaps that had earlier notice the district waits decision and the fact remains he didn't file a rule sixty motion on grounds of excusable neglect and even if we treat your brief as a rule sixty motion it was more than a year later well your he couldn't be it could have been the rule sixty one dollars motion because he only had a year to do it and you never even found out about the dismissals on well past the year so that's why i would take the position his only option his only bal for relief would have been sixty six not affirmatively updated the court this is where i am this is my location and he's waiting for a cue because it's ok the problem here is that he might have been better off in some ways if he had still been prostate at the time that the rule fifteen motion was filed because he was represented by you at that point and so he doesn't get the benefit of the liberal construction of his pleadings and you didn't invoke well sixty i'm not i'm not sure why you chose to call it a motion to reinstate a motion to no longer issue because mr o'neil is now not only out but his criminal conviction has been breaking trying to do reopen the case within a year of the vacation of the criminal invention so it's clearly within one year or two years to and frankly i also made very very clear that one of the reasons that there was no barrier to him being able to prosecute the case because he's no longer in prison that has always been the quintessential problem with this entire situation o'neill never had notice of anything and that's why it's patently unjust to allow this situation to go on because frankly that the tenants are going to get the benefit of their misconducts because he couldn't participate and  response to be reviewed for clear error and the legal question or whatever back constitutes a waiver to be reviewed did no one and so on a clear that that we were both where he was referencing that the case would have been completely gone because of the motions to this mess and i think that's a little misleading because in regards to specifically my client for instance my client mr cracky had a only a partial motion to dismiss based on pack there actually would have been a claim that would have survived or would have gone on past that know and i think if we look at the order that judge kendall wrote and relied upon in the record are those facts that you relied upon in the record survived a goalie four different counts establishing that he was pretty well versed for pro se complaints or per pro se playing a to be able to establish four separate claims that could survive that he was knowledgeable enough to filed this complaint within the statute of limitations three days before the statute of limitations expired that he proceeded it to be knowledgeable enough to contact the court to advise the court that his vocation was going to change these four factors that were important to the court because it shows the court that the plaintiff appellant understood that he had an ongoing obligation  but yet in this circumstance the plaintiff's opponent fell off the face of the planet there wasn't letters there routinely contact by letter from individuals who are incarcerated it to the clerk and this just did not happen in this case and what we do know there is a complete lack of contact from  he had contact with the clerk and then was advised of the dismissal and the court took that information in relied upon that information in as a result said book with this information what i know this is not exceptional circumstances that warrants release under rule sixty in because of that you know i'm not going to grant that relief that's being requested it and without that they're just simply isn't a to me you know just simply isn't a doesn't reach that level at say the that reaches that level of exceptional circumstances that warrants that type of relief in this case in regards to the standard obviously it's an abus discretion standard and simply the plaintive poem in this case just says not provide at the court any information to suggest that there's been any abuse of discretion and in the ruling as believe that the order provides a well thought out reasoning that is supported by case law and in simply does not provide a reasonable justification for her and over and we go through obviously the briefs are very long in this case and i know that all of you have reviewed them thoroughly this change in your time expired ok i would just say for under these circumstances clearly this is a well thought out decision that the circumstances were there's no unusual circumstances here a judge has the right to control reference which claims would or would not survive i don't think that that's entirely accurate particularly given the facts that mr o'neill raised a malicious prosecution plan which he clearly put in of raised because of the underlying criminal conviction he certainly couldn't raise process the practical reality is it would have been almost impossible for him to prevail on the merits because he would been subject to gilbert instructions kooker says reverse where he couldn't deny that he was the initial aggressor said that i waited for mr o'neal waived any arguments about being able to address whether or not a rule sixty been satisfied the reality is that the waiver our argument has to be narrowed to the context of what was argued in the reply the substance of what i had said in the reply truly was no different in the sense that the facts as alleged in the motion to reinstate on their face are exceptional defendants knew that the whole basis for their original te