good morning your owners one is daniel miller and among the half of the palin global diamond resources incorporated more than yours they were here discussed whether it was an abuse of discretion for the district court to refuse to set aside entry of the fall due to my client's temporary financial condition which would resolve prior to default judgment being entered this case is fact lisa pacific this is a case that had four years of intense litigation history before the entry of default there's no dispute between the parties the standards that are used to determine whether people should be set aside so three part test culpability on behalf of the defendant my client prejudiced to a plank of this case mood and whether we have any this case the complaint was answered we had discovery that was conducted both in the united states trips to saudi arabia to conduct depositions along a motion battle regarding the enforcement of a foreign arbitration award which took thirty months in amongst itself so this is not a case where my clients that not take this case seriously did not proceed to try to have it and heard on the merits what happened was during the period of time this was occurring we had the events of september eleventh we had a saudi arabian company with one of the parent companies of bin ladin company not osama but of the of the family it was difficult to raise money so we reached this temporary economic hardship likewise continue to work to try to resolve its financial condition and was able to do so certainly there's other languages besides the failure to answer the use of definitions of wealth will cope well for conduct the leverage or bad faith this case is not for those definitions either my clients were trying to resolve their financial conditions i wasn't deliberately or actively sitting by waiting for this case to just hopefully disappear he was working with his creditors trying to resolve claims that had outstanding against it was attempting to find counsel for the third time due to conference for a month after our motion application was that's at the default but that time this case was right to proceed they were going to six months away caused by a temporary economic condition and we were ready to proceed based on having the original attorney mr nigh quest who had done all the discovery so at this point this case could have been ordered to proceed to trial with the counsel conducted all the due discovery all along motion work and planck's original counsel how much spurred on global bonds you know that's not the case as a decoration of charles mcdo will the president's chief executive officer of my my clients that they've been actively trying to negotiate these creditor claims let them get themselves in a financial position to continue with this lawsuit and we're prepared to go for the trial in fact we have an agreement that we're going to pay through trial so this issue that this is going to happen again and we're not going to be able to proceed that was gong so this concept of culpability i don't think  apply not under the definitions found in the cases cited by movie party or the court you move to the next factor the prejudice to move again i think it's important to look at the status of this case at the time and  entered at the time that we moved to satisfy the people again under the case management or all discovery was complete expert witnesses have been deposed list is a list of experts have been exchanged again all that have to happen was the final status conference exchange of our pretrial documents and get a trial so there was a six month period of time it was the life of financial sanctions for the pirate money they spent to move and proceed with this default that remedy but to remove the ability for my quite a crisis cases on the merits in front of a jury that's not reason washer size of discretion there is no prejudice this case was exactly ready for trial six months earlier or six months later no more discovery was going to be allowed we were done ready to proceed for trial so where's the prejudice to move the courts that well you may not be able to collect on your judgment that's true in every case that's filed you're never guaranteed to collect  judgment that's one of the considerations you take before you file is the worst then this time and money to go after this defendant if you think he solvent has money maybe you'll invest that money if you don't you may not it may be of a personal victory that you want to go after and you don't care about money regardless of the prejudice is not whether you're going to collect the judgment the prejudice is well set inside the default change that is the case and this case additional hearing on the defense of this is not to consider that factor as not to the court that there's not a requirement that each and every packet be considered or one factor be considered more than the other but this refusal to even take them into account when the other factor so clearly don't apply i think is also abuse of discretion so where do we stand or we stand in a situation where my client is still ready to proceed for trial years down the line when all of that was all that we had before with a six month delay so no culpability no prejudice to defend the mood that is the prejudice that's recognized by the case law and meritorious defenses absolutely this is a case by the board of directors if they were heard and in fact this thirty month battle i talked about to begin with there's arbitration in saudi arabia my client prevailed on that it was a thirty month long motion battle on the enforceability of that award under the united nations conventions that it was decided this last july franchise holding first of honey ten restaurants thirty five for three seventy five federal thirty nine twenty two which mirrors the same arguments reviewed the paperwork it was submitted to him and made a ruling based on what was submitted and found that the repellents conduct was couple and the cases are very very  withdrawal in november of all why and at that time put the defendant appellant i notice that if they fail to acquire new counsel within thirty days that they would be potentially subject to a default  application to be released this council requesting that the court not allow it to occur and the court took the response under submission now the court did allow that attorney to to acquire counsel now during this time also your honors the court also vacated all the pretrial conference ftes and everything that had been scheduled during the fact that they were allowing the court was allowing time to fine counsel now in that word or the court also indicated that if if you need more time you have good cause to come forward and seek more time please do so now what's really and i simply point that out because the system works best when we were told in advance that there's a new earth already that might have some bearing in your opponent has a chance to respond your honor i just recently found the case according to my understanding felt that the failure to respond the lack of all the notices that were taking place and i didn't finish to continue on with the able to twenty have retained counsel on a limited basis to come in and ask for more time they simply could have just had someone come in and make a special appearance on their behalf they didn't do so what ultimately happened is our client filed is able to retain their previous counsel who comes in and files ex party application to set aside the default now in response to your honor's question about an alternative form of sanctions or or something else i believe that the judge did find the conduct to be culpable their failure to answer the failure to respond after all these theories a series of notices and in their papers the judge also notice that the did not did not provide any extraordinary circumstances to justify their reason for not coming yeah i mean i asked the question it's not the majority question at all there may be good reasons why he didn't quote choose the lesser sanction i was just wondering if the consider the possibility of for example awarding your client attorneys believe that the judge was concerned about the fact that there was evidence of the depletion of assets there was no explanation as to why g r i did not come in and sooner or why they could not financially and of retained counsel sooner there was no explanation for the delay where the amount of time there was that only declarations from it is that they're trying to settle with creditors you know it can be perceived that hey if or that they had actual notice and they failed to to act upon it he also got my sweats also found that that our client was prejudiced due to the delay now it was our client prejudice because of the fact that  very very unstable financially and there was a likelihood that that mr mood would not have anything to proceed with even if he wanted it's why so all these delays and the circumstances surrounding mosque which didn't really address that i will just briefly address that i believe that the argument i know it's not necessary quoting the wod if you find culpability this is not necessary for the court to look didn't address it you didn't address it your honor i believe the arguments were conclusion argumentative without substantial evidence in support ok thank you thank you  our two points starting with the failure to appear before the court to ask for more time your correct we're talking about this this able to twenty sixth two thousand and four order let's go back one step before that the sends a letter back saying this is a proper x party contact do not do it again and then he was right with me absolutely correct one hundred percent correct and he further reiterated that in his october is a full twenty six order granting the withdrawal he says the paragraph that says a corporation may only appear in court with counsel again absolutely correct so my clients now have been told once from the judge via letter and then again in an order not the companies that i need more time your honor unless they can but when g d r i comes to an attorney on this third attempt to hire an attorney now and says well tell me all about the case and he says well we've been going on for three years we've traveled to saudi arabia we've had all this long motion we have this unique battle about the united nations let's proceed and given the override if you just a policy of trying case on the merits especially in light of the fact that no prejudice was going to fall move again the prejudice was the collectability of a judgment if you ultimately prevail that is not the type of prejudice