this honorable court please my student council opposing counsel i'd like to start today was a little bit of a an introduction as to my background and and why i find the situation that we're in so interesting when i started practicing law possibly ten ten years ago i had a trial mentor who was a little short gentleman by the name of mr three who is entering his fifth decade of practice  three was one of the senior trial that he was sort of course loves to tell those while the only stuff stories and i assume came from the territorial days of yore rather than present a practice of law this case certainly any different here it's absolutely different here because instead of what we would expect to step onto up there playing field for a sports game for instance we stepped onto a minefield and you could see that you did have a scheduling conflict on the day that was  trials these days if not more are done by video deposition to the jury before the jury well that's good so interesting point you know when it comes to judgment brought out that the idea of using electronics because it's not even  looks like you just said we can't come and did you heard jamie alternatives other than rescheduling what did you do to try to get the court off of the position that put your client in a bind in a terrible bind your honor i we didn't offer any other alternatives all the candidates we asked initially to move it to a date that would have worked now that we learned that that didn't work because of the potentially very dangerous condition my client was in but we had nationally asked for the court to move it to thirty days to where we wouldn't have any stop scheduling conflicts and we would we stood ready and willing at any point in a junction to have a company good judgment vied with us with a status conference with the schedul about if you think that you didn't have a fair shot you need to make a record of that and you need to make a record of that every chance you get and i would submit to the court that we have a record that's longer than my very long arms but on this point you have other things that happened before that you complain about that where is the record on this point i will submit to the courts we did not on this point on that point we did not i do not hearing in fort worth of refuting now if you if the record supports it if you think you made incorrect observations about the note and all those things i think you did i think it supplying the court with a note from the doctor's office on the dock fact i believe that just doesn't provide focused on is that the doctor didn't sign it i'm sorry there's substantial enough evidence based on what it said right what it what did it say exactly i'm informed about a condition i know i believe it was more forceful and he didn't say he couldn't travel to fort worth for trial and it is no it said that i have informed my patient that he should not be traveling which is i love to be able to dictate to the doctor what he should or should not have said to make that clear but i believe that was clear enough especially with representations of counsel but it wasn't clear enough to judge my bride and that's why you needed to have the hearing and i appreciate that you know at this point on that but i don't think that anything we could have done in that room would have changed the outcome i understand you have a record after the mistrial there was no way that i could pull that off just plain and simple there's no way that we can pull that off with our small office we had two trials scheduled in the period of time in between when he gave us notice of the trial and when we were set to go to so you have two other arguments right that he shouldn't have dismissed the case when they failed to show up they should a considered a lesser sanction isn't that one of your arguments  that a lesser sanction needed to either be considered and needed to be imposed first under our case on that's what the it's that correct you ordered argue that in your brief your honor i don't think i think that is one of the remedies that we're they should have find you or done something else instead when you didn't show up for trial now i'm not saying that it's not too strong what i'm saying in a record is that this is a square peg that fits into let's say you're one hundred percent right so what i mean that we can't go recreate you know that trial didn't happen there's no verdict to enforce so there's there's no remedy other than setting a new trial which he did which didn't show up for was really it sounds like it all comes down to the continuance issue for you know i don't i don't agree with it you go explain to me if what your what your best issue by our best issue is ultimately the most the refusal refusal first to grant a motion to dismiss when we agreed to pay the tax or the voluntary dismissal yes that's a separate reason why you think you should win totally separate from this whole other point that you are asked about my best reason essentially saying when when you're the point that you're trying to form is important and when you step into a long line and you do not want to be there and you know you're willing to pay me not only to taxable cost which we agreed to pay we agreed to case in new orleans federal court you just keep dismissing it out of that seven or eight district judges here you just keep dismissing until you get the one you like i don't want to talk about it's not just that we just didn't like the judge it's that we had very good reasons that we wanted to be in the new the motion dismissed should be legally grand liberally granted even when it's forum shopping that's not a reason to not grant it yet i appreciate it that's exactly right is timing a problem for you as i understand it this was we agreed that we would be taxed reasonable costs and he denied saying you didn't agree to pay all of the fees we turned around and said that's fine the motion to reconsider the rule fifty four we absolutely will pay whatever the fees are to move this case right away we did that right after the motion with a motion to dismiss and he gave us a one page denial stating i was not well taken and i'm denying your reconsideration even though we met the condition that he said that we didn't meet i mean that really gets down to abuse of discretion that is kind it should have been properly called the next bill they conceded that but oppose our motion to transfer them and then we went to the motion to dismiss which they also opposed and we filed that with the court and that's when we got to the taxable cost and then they said the fees and that's how the procedure about that point that gets to another point where we were he decides that timing issue we filed a corresponding case is a placeholder in new mexico because especially imitations was going to run out i believe it was in september of that year so we filed the case  that is it goes to this intemperate behavior that we received from the judge and every time that we did something that the opposing counsel would go to him and say look these new mexican lawyers they just don't get out of texas courts and here they filed this case in mexico just basically waving in his face in an attempt to engender the animus and of course that's the the relevance of this is that we have what for whatever reason endangered and gender pleased the court and counsel i frankly have very little of that because i think the court is correct in focusing on the end of this process because why we're here the the the dismissal dismissed with prejudice was the dismissing the case at that point i think it's clear that it did not for all the reasons i think the that came out of the little while ago all the earlier stuff i think the that counsel has conceded was harmless error dismissal without prejudice at the it seems that our case law is very broad on this it says that they should be freely granted unless the nonmoving party will suffer some plain legal prejudice other than the mere prospect of a second lawsuit and it says the also the potential for forum shopping does not count as legal prejudice so why shouldn't the court have granted back then i think that specifically the i think the the specific purpose for forum shopping is something that this court ought not to not auton courage for the reasons with but no but arc we have case law that's published that says leak it is not legal prejudice that it may be for forum shopping so that's why it seems that forum shopping is not a reason not to grant the motion under our case law i agree and i think the case law does say that done i think the point i was making and i take it the court was was making in by its questions earlier is a slightly different one is that while the district court ought not to receive use a motion to dismiss without then the the position of the appellant settled on was that well we'll pay them if the court orders them whatever the court wants to order and at this point to the court i believe took the position that i've already denied your dismissal i denied it for the reasons i d reconsideration why weren't those two judicial rulings of the use of discretion for either one of them and i think that would make the case dismissed without prejudice instead of with prejudice i think they're going to i don't i think they're a couple of things that i think first  attorney fees and the reply wasn't yes we will reply was all the reasons they shouldn't have to pay attorney fees and then then when the motion was denied they filed the second motion saying ok now we're going to pay attorney fees why why something significant that we need to consider on both of these that the case law is pretty clear the you shouldn't be allowed to dismiss to escape an adverse ruling typically it's not then you have time to run across when that is but  happiness that this hasn't been litigated because no one finds themselves in this position because it's so rare that a plaintiff moves to transfer a venue to a court in which they could have filed in the first day they wouldn't be in the situation once they're already in that court and it's not true there were no rulings there was the and that this may be the original basis of the antagonism i'm going to be seen as you can and you can also then use the dismissal just to go i don't like that trial setting the judge doesn't get us continued from our november setting let's dismiss and start over somewhere else i mean just seems it can undo the trial court's entire docket management in this case wasn't it was ten months in in fort worth when this dismissal it was requested yeah and dismissal issue but it's in the record and i have and i believe in one of the in the initial denial of dismissal of the court refers to the litigation the order on venue and and what it said then is that i'm an extremely efficient court and this is moving towards trial work and we're on track and and there's no reason to move it to a court this can be a much much longer  incorporated in the first denial of dismissal the the whole line of of motions and orders on on venue in and also it's never been clear and you know when we talk about prejudice to the other party i think this is part of the subtext in elbow or is that it's never clear in that case exactly what it vantage to the  expects to gain by dismissing and we siling the trying to get out of a jurisdictional argument in texas and in this case they say that who they'd rather be in new mexico but it's not entirely clear what advantage they  expect to gain and then sort of hamper the court i think in in crafting its its ruling in response to that is another issue but i but i think the we we come down to that the same reason that it denied venue that there was just no purpose to be served in transferring the case or allowing to be refiled at that point to another federal court with an entirely different docket entirely different litigation case in its chosen forum and then to decide because it doesn't like the judge doesn't want the rulings of that judge and doesn't like the direction the litigation is going and by this time it's not true that nothing could happen by the time the a second not true that the there that nothing had yet to happen by the time the second motion is denied it was four months from trial and they were moving into depositions and no purpose would have been served allowing the the dismissal and starting over somewhere else i mean it's it's counter to the to the idea of efficient working of course and conservation of judicial resources fees and i think it incorporating its orders on one venue it also makes it clear that the the mere form shopping at this point was inappropriate and it's also rather late in the litigation by this time and by the time of this everything prior to the the events that led up to the dismissal with prejudice or were all harmless error and i think it was for this reason that what we get down to is we eventually had a trial we had a trial  in the dismissal with prejudice all our application of federal rules it's not state law it's not new mexico law versus texas law it's due the federal rules of evidence prohibit the evidence that they repeatedly tried to get in a trial and had been warned in advance by way of limiting not to get in and once that happened i think the court was clearly within its discretion to grant the mistrial i think that it became clear that they were going to g to trial setting very quickly especially with the experience that everyone had in judgment pride court by that time it was going to be with with little warning and quick when that happened and it was after some very  angry litigation tween the parties over mutual allegations of witness tampering and intimidation and that became one of their bases that that they argued stringently in below as to why that they should be they shouldn't be required to present themselves for trial when when the district one of them two was because that it had failed to make appropriate accommodations for this intimidation of this witness which wasn't true the court had offered the services of the marshal service to protect him if needed at any point then when that when the trial gets ordered and they ask for continuance and here's where we get to the lesser sanctions i think there were if if not lesser sanctions there were certainly lesser accommodations of the court partly granted the continuance and in required that they be a trial eight days later than  initially ordered and and when they came with new reasons why that they wouldn't do that the court pointed out that i commented all of your conflicts in the first motion now you asked me to move it again and and i apologize if i misstated the record if you didn't you didn't but i did but i still think that given the what led up to the attempt to dismiss just immediately prior was the adverse ruling on venue been decided you can't once you want to non to then you're you're stuck with the the original venue if you try to refile so and i think that that's there's in this case it would be something odd about allowing a but then they attempted to move the case to another court in which really they could have filed in the first place nothing nothing that there was nothing that changed nothing that happened that the stuff about what we learned during service  of that's true because they knew and argued consistently that all of the acts that gave rise to the cause of action occurred in mexico so for whatever reason they decided they no longer wanted to be in his court they wanted to go to mexico and in the around and say king's x you can't tell us we were not going to mexico because we're we're out when that itself is something that requires an order of the court the dismissal and is reviewed for abuse of discretion and i don't think the records ports an abuse of discretion on that or on anything else in this file unless the court has other questions i think i'll leave it there and as that the court affirmed the dismissal with prejudice in this case sanctions would fix the problem in this the problem in this case is that we have these abuses of discretion early in the case not late in the case but early in the case when we tried to dismiss this this happened that's where the error that was not harmless occurred and we went on and the saga went went further after that and there's certainly the saga after the mistrial that we can look at but really what we're looking at  on the fact that while shopping and and the reason that we we all have a case for us i believe that there's a case cited in the briefing that discusses that when it comes to form shopping that it's and then i might be misremembering this form the jury you're going to like it if you're mad and trying to undo court rulings that have already been made as far as court rulings that it already been made at that point there was one ruling refusing  amended complaint because we had inadvertently used resides instead of domiciled that's the only ruling that it would have disturbed at the point in the case where we try to prevent you ruin an expert deadlines and things like that that have been litigated but leaves so far out of time to grant us their experts and so close to the end of discovery gets to prejudiced us and then of the nile as a joint motion by both parties to send you out of we haven't because of what's been going on we're not ready to go in this case this case hasn't progressed to the point where the parties are ready to i don't think there's a limiting principle yet in the case law i believe that it's costing you that you perhaps touched on some of the reasoning behind that and i think it gets to the other question about how far into the process you are but i don't think that that shows up in the case l yet at this point it gets to the point where if there is no clear legal prejudice to the descendants we should be that should have been allowed to dismiss because they want to have it as if the statute there is a woman in the statute might run with a venue transfer you d still have the same filing date when you first fall the lawsuit that's going to be transferred there is a limit on dismissing in refiling in that the statute could be an issue which we were cognizant of which is why ultimately while the motion to reconsider was pending we filed the corresponding place on the case in new mexico believing we did not serve it because a point is still an open case so until the case has been dismissed in texas we did not believe in it probably would've been appropriate to serve it we did not foresee that when we said you are going to whatever the amount of teams you think they are they're entitled to is well please will pay it let us leave that he would deny that i still how does that work from a remedy standpoint here then if we were to agree with and we submit that ultimately the remedy that you one of the remedies you could claim that we've asked for is to just remember back to the same district and leave the decision on the transfer alone but we don't believe we can obtain a for a trial in to transfer the case new mexico this court is unwilling to touch the transfer order we're asking for an order agreement and for the case to be heard by another judge so that we can obtain a fair trial in fort worth in fort worth in the northern district of those those are the two remedies  i might just answer that point i believe that that's the reason why this is a unique situation where when you have a record that is replete with an abuse of discretion like we have that fits into the liberty box that the only remedy that this court can do in order to ensure substantial justice are the two remedies that we've asked for that's why i asked it so thank you can't you have your argument this concludes the arguments for the day the court will stand in recess until tomorrow morning thank you