period that was fixed by the court in the thomas feedback a case which will be argued later this morning all three cases are the same except for the time period and all three cases should have been consolidated these cases rode with thomas for potential settlement and only after the three cases were settled that the district court dismissed them they should have gone to trial with thomas and more than six months after thomas went to trial timeline this case and let me let me start from the assumption that at some point along the way the judge stayed discovery correct correct yes and he did so no allow you to pursue settlement discussions both in this case and the other thomas case press and also because he was going to rule on class decertification other issues in the other case and those would affect this one though i think that's with issues that would cover all three cases in the certification came out very much later ok here's my question at some point along the way this court denied the permission for leave to appeal the decertification order in the thomas thomas first use i says because it's county of los angeles case i think in my mind of this thomas won the first case file but in any event once that occurred and september and that has to do with my disability that came up and it was in my opinion an extraordinary circumstance ok and put that aside for a second it may may well be sufficient excuse i'm am asking a different question what was was anything done to advance these cases in the time period after september two thousand and twelve and before you move to lift the stay which is ninth circuit issues an order saying we're not going to hear the decertification appeal that's two thousand and twelve and the motions to lift the stay in these cases are filed in march of two thousand and fourteen so it's eighteen months eighteen months answer i think is that because of your disability nothing occurred during those eighteen months of these races tell us about just clarify for me if you would the you had these companion motions to consolidate you have the motion consolidate in the two cases we're talking about here than in the major thomas case there was a sort of a companion motion to consolidate with these two cases but what what was the status of those motions to consolidate at the time that the thomas trial actually took place they had never been ruled on they've never been ruled he think they'd just my understanding the judge we'd had a hearing at which the judge advise the judge of the continuing tendency of those motions and the failure to rule on them i don't believe that we did it it no i don't didn't do anything other than you know and then actually make the motion for a second time and you know i was trying to figure out the practical effect of consolidation once the judge decided not these would have been two relatively short jury trials on behalf of the name plaintiffs and corralling by i think so yes even though there were more plaintiff that still would not have been a particular particularly like trials if there wasn't a  all right thank you very much say that time for justin clark for depend a defendant appellee may have police court i'd just like to respond to a few of the items that came up during counsel's argument initially with respect to the the argument that the cases are the same i don't believe that they merits i guess my question goes to the last question i asked your colleague here these strike me once you accept that they can take a class is not going to be certified as relatively simple trials you're going to put on somebody who says i was forced to sleep on the floor and you're either going to you're either going to say no you weren't or we have some excuse and by that point the judge just said there are no excuses for it and so what's the big deal about just taking these two individual cases to trial well respected all right i wouldn't necessarily say that there are some but i would agree that the issues that would have to be read as part of the trial because the judge has already ruled only stay discover him to continue various hearings but when i read the minute entries they seem to indicate that the litigation itself was stayed who was your understanding of what was stated that  certification issue could be resolved because as you are one it out that issue could have an impact on all three cases so so let's assume just for purposes of discussion that any non action on the part of the plaintiffs up until the time this court denied permission to appeal the certification order was justified because because of all the reasons you said we've got about a need and they then filed a motion to lift the stay about eighteen months after  disability i think covered a period of about fourteen months does it not well and your honor a written response to the the concept of counsel's disability well i would certainly the last thing i would want to do is in any way suggest that i'm not sensitive to concerns of health issues or anything along those lines with that being said the problem with the concept of saying that there was a does a disability that rose to the level of preventing counsel from actually litigating both the base and corral cases is the fact that the same point of counsel was actively litigating the thomas case during that point in time we have we have the time sheets in the thomas case and i haven't tried to do any comparison was there any argument to the district court that time was  plaintiff's counsel during that period time in the thomas case so i guess i'm sensitive to the concept of there being a disability that would prevent an attorney from having the ability to work on a particular case but when you make that representation and then at the same time you're actively  got this problem and therefore i want some deadlines moved or we never know whether there were no status conferences nice cases there were multiple hearings in the house case right but not a nice these two not there was nothing of happened or didn't happen by march of two thousand and fourteen the other side said let's get these cases a trial we're ready to go we drew we have set up a schedule set a trial date we want and we want to prejudice it's exactly the same as the potential prejudice that would have been there had they moved to lift their stay eighteen months or earlier now there was i think we were nine years after the event or seven years after the event so the pass of the incidence in these cases does that further delay put you in any worse position than you would have been had they moved eighteen months earlier to to lift the  these motions were pending for some time and yet and five there was a hearing at least in the bios and through our cases and the judge never has motion to me so all of these difficulties that you're citing that's where it seems to me that they should have been explored what what would justify the court moving those motions you seem to take the position the pendency was not enough that the plaintiffs had to make some effort to tell the judge look these motions been pending you've done nothing about them i think that's correct you are the judge that the plaintiffs do have that burden and i think the case law on that subject on that on that subject is pretty clear that it's pointless burden and nobody else has to actually take action to move the case forward in response to your question a lot of the difficulties that that we've been talking about were briefed in the consolidation motion but i want to point out to the court that the concept that there was an abuse of discretion by the court not ruling on the consolidation motion if you look at the consolidation motion itself that was filed there is absolutely zero indication that it would have been granted and in fact it would have been denied if you look at the papers the mo consolidation motion itself is six pages long it consists of three paragraphs sixteen lines of text and there was zero evidence is submitted in support of it so the concept that there was any abuse of discretion by the court not ruling on that motion there's every indication that if the court were to have ruled on that motion that it would have been summarily denied so to the extent that there was a failure by the district court of not ruling on that motion i would urge this court to find that to be harmless  simply because the fact of the matter is it had the court actually ruled on it it would have been denied in my opinion with respect to the concept that as your honor couched it simply letting the motion and not not ruling on it i think you have to look at the time period when that motion was filed and consider all of the moving parts that were going on at that period of time you had initially the party's interest in exploring a global settlement of all three of the cases which broke down in and around twenty eleven sorry the supreme court's decision and wal mart which led to the decertification on top of all of that you had the disbarment of former plaintiffs counsel which actually led to significant briefing about who was going to continue to represent the class as lead counsel one of them that was in two thousand and seven so it's not like you know the plaintiffs filed the motion and then the court just sat on it and nothing was happening for that entire period of time there were extensive very important issues that were being briefed which quite frankly took precedent over the consolidation motion especially given as i pointed out earlier the diff the with the defects of that motion itself in our i have a call this is not necessarily raised would you refresh my recollection as to the basis of your claim for disability during this period of time it was a hip replacement surgery and i had a lot of pain prior to that just completely disabled me because it was at the end stage of the need for replacement did you have anyone else in your firm besides yourself not who's able to andle this now so the filings that were  by you i don't believe there were there and i'm trying to remember but i don't believe there were many fallings done in the thomas case during certainly not during the period when i was actually disabled and i think there was a falling done in october of two twelve that i'd have to check i and that to get that case to trial but i don't think that anything else really took place in that case october two thousand and twelve yes much after that i don't recall and two thousand and thirteen i was completely to save i don't recall filing not in but anything's possible and it would have been very limited because it was taking very you know pain medications and prior to having the surgery and afterwards for quite a long time so i don't think i would have been doing a lot of legal counsel for the county correct in saying that you never went to the judge or news time period and said i've got i've got a problem so i need some consideration in terms of deadlines and  as opposed to later saying judge you retrospect let me tell you why the case didn't move i think it's part of the disability that you don't necessarily one of the reasons that people can't perform adequately when they have a disability and they have to take pain medication is that you're not going to think of doing all the right things but it whether that's part of the disability and in fact one of the reasons that you can't really do very much that maybe in can't have done anything really that would have advance if i knew about it and he didn't and right but isn't it commonplace in partnerships it's the nature of a partnership sometimes one partner is not able to do things that they've been doing and so the other partner steps in it's not like you were in a solo practice why should and it factor into that and he did any judgment about the failure to prosecute this case that you did have a partner apparently a partner of considerable experience who could have stepped in to to move the case along what's unreasonable about taking that view that the unreasonable  but the fact is that while it didn't happen first or second late i don't think his knowledge of the case at that point would have enabled him to so i just don't think it could it was a reasonable thing to have happened i ultimately would have had to have prepared all the documents relating to preach for all the work if it couldn't have gone forward in the condition that i was at and i had to do what was same time as the thomas case it is also something that george my mind was that we did in the or in the thomas case in which the motion to consolidate was made and there were there was a motion i think rule eighty three point nine i'm not sure the exact number made to have the court rule on the various things that are not ruled out upon he said there was some effort to get the court to rule hit the court did not rule on any of the things that it either vacated or just didn't do it and