address when they is there's a state granted in this case that the case will not be litigated until sometime perhaps as early as two thousand and twenty four but there is no limit on how long the case may be st also going into the carmichael case which is another a circuit opinion again they thought that  court asked us to brief two questions availability and then the merits of the state it was entered we seem to be focused on the appeal ability questions today especially with just cross your comments before we perhaps spend all the time on that i do want to acknowledge mr selectees comments about how circumstances have changed and i actually planned to say that myself even if he did and i gree that the analysis would be different today because i think i probably would not want to make sure i say that and also i think i might have jumped the gun a little bit on the motion to stay here it may have been more appropriate to ask for a an extension of the discovery deadline  about a week and a half away when i the motion i was going to be able to get the deposition done at that point but i could've asked for an extension got it done and move past the discovery deadlines of discovery is closed and there can be no argument that there's any more evidence that needs to come out or anything we're going to later stated case it is true that mr devine got all of this discovery he has all the records everything's preserved the arguments about the harms and would remain the same really but we could then proceed to summary judgment this is an excessive force case if he if his testimony is similar to what is written is pleadings i'm probably not going to be able to file summary judgment motion in this case or if i am able to in good faith it's likely to be denied and then at that point it's time to set this case for a jury trial but mr devine is still incarcerated in texas and i think then a stay on the merits would be perfectly appropriate at that base of the case a lot of the cases we've discussed including the reese case which is the one i relied most on from the same district court that's the procedural posture that case was in the state was injured and i think that we have there's a bit of an error on the merits because the standard that the magistrate judge used in our case the seven factors that's the standard for the recess that's the standard for a stay because you're ready to go to trial by jury trial but you can't get this this plains of who's in prison and in another state and maybe it's a little different than this earlier state and so if you get to the merits which i don't think you will but if you do i think the right thing to do is to just acknowledge that maybe the wrong standard was used here and get to the lower court sort of a nd chance and i'm probably not going to file that motion to d stay in right away i don't i think because of my ability to take a deposition now with orders and everybody knowing how to do things remotely but i think it's important that if there's a reversal here i the it it not operate to prevent a stay when the case gets to that place if it gets there if some ridges is not granted if it doesn't resolve in some other way settlement or otherwise and we're on the cusp of setting a jury trial for the st time i'm probably well i think i think actually the state would be proper under the correct standard but i think that seven factor test that the magistrate judge outlined it is more you can tell by reading the factors they contemplate that you're you're about to go to trial not that you're in an earlier phase of the case before discovery is closed or any other days of the case and so there's always been a bit of a disconnect there i do think the magistrate judge could have reached the same yes i mean i think you could certainly characterize it that way but you know i i think that when you've got a pro se and many planes if you really construe what they're saying and d so it may not be necessary to  take that harsh of a reading of that the district court didn't seem to think that this records order comes much later after the notice of appeal has already been filed so it's clearly not a it's not addressing the our initial are not and you're right that there is no district court order ruling on the recommendation from the magistrate judge technically but i think in substance the district court adopts the magistrate's recommendation  myself and i know one of the better we obviously don't need to discuss that but i wonder whether the best disposition is to dismiss the appeal since you're taking the position that you're not even and that the state may have been a little premature or whatever you want to call it whethe day i think at that point out that jazz i don't need to be able to take a deposition right now but i'm not but i don't want to waive the opportunity if we get to the place where discovery because there's not going to be summary judgment in this case it cannot be resolved on the paper by the court we have to have a jury trial and the divine still incarcerated in texas now is the problem for the district court to figure out if they can bring him to arkansas for this trial and i think there's plenty of authority for a district court to stay in that posture at that point and so i may ask for another stay at that juncture i don't want to miss you're thinking that i would if it if it seems proper i'll probably file that motion pandemic i think you know even in this case we talked about the courts having the ability to control their dockets i think remaining this case for the sole purpose of having the judge rule on the report recommendation and then my fact that the defense counsel with my might not even make the same request i think in some extent that might be a waste of judicial resources but i respect