federal law and we'll both answer questions to the other issues as the court requires we reserving two minutes of our time for of all your honors we are here because the eastern district court sue is sponsored dismissed mr han's timely file complaint without tolling under these unique circumstances and that is the area we are challenging today under washington law mr hahn was entitled equitable tolling because the eastern district courts dismissal created and that view was later adopted by the majority of the court in recorder now this court can look to those cases and conclude that this is the situation for seen by the washington supreme court here mr hahn timely filed his original complaint in the eastern district and when that court dismissed it it created the time for the prevention mr han from having his claim we filed in the western district how much time did he have left on the statute of limitations one day one day your honor yes he recently when did he receive notice that his case had been dismissed your honor the record is silent on that matter what the logical conclusion is that it was less than the four months he took to refile and as a prostate inmate that period is a reasonable period in which he could refile this case well i think the issue is whether or not he received notice before the statute of limitations had run and and and and so you've answered my question like i didn't see in the record where that was clear i'm assuming based upon male he was in custody things of that sort he didn't know until his remaining one day on the statute had run most like is that a fair assumption yes you are all right with mr han's case was dismissed and he had no prior notice as your honor pointed out by the time he possibly received notice the statue limitations that already r equable tolling it was necessary for mr hahn to be able to refile his case in the western district do you think the district court judge in the eastern district of washington that that judge knew what he or she made the decision to dismiss is supposed to transfer what the situation was with the statute of limitations while you're on the record is unclear on that however if the eastern district court judge was to sue a sponte raised the venue you know when the assault occurred and when mr hobbs filed then the judge should have known that it is dismissal created the time for ok if the court has also isn't he don't you have a problem with respect to qualifying for equitable tolling if the reason is based on either bad faith or mail fees and spieth third party simply because of an adverse decision by the district court is that's not enough is it it is your honor because a majority of the justices in re bonds recognize that would be a potential reason for equitable tolling of you which was later adopted by the full washington supreme court in recorder thus the court's decision would form the basis if the court has no furthe compensation for civil rights violations and the deterrence of governmental buz and central to section one thousand nine hundred three actions is that they belong court assuring the full veil ability of additional forum and as a remedial statute section one thousand nine hundred three should be liberally and broadly construed in favor of these goals as my co counsel explained here mr hahn originally time we filed in a proper venue when he rigidly filed in the eastern district and it wasn't until the eastern district dismissed the other defendants that venue suddenly and unexpectedly became improper and because this was pursuant to section one nine hundred fifteen a screening there was no participation by the defendants or report recommendations that would have possibly alerted mr hahn to a potential lapse in venue and because mr han does not have access to electronic filings and because the mail system and presence are slow he surely would not have received notice of the eastern district dismissal until after the statue limitations had passed therefore  actions but went on to state that there are extraordinary circumstances where state tolling must not apply and that the court must identify and compare the federal policies to the state tolling provisions and in that case the court went on to do that and found that the relevant new york towing provisions in that case were consistent with section one thousand nine hundred three but it reaffirmed the duty that courts must assure that the importation of state law does not frustrate federal rights or policies why should that same principle apply here it should apply here your honor because in that case the new york tolling provision was not comparable to mr hahn situation in that case the court found that where there was not a basis for litigant pursued a related but independent cause of action that that was still consistent with section one thousand nine hundred three but here this was totally out of mr hans control that core error entirely barred him from releasing any court he had no notice that then he was going to become an issue and he surely wouldn't receive notice until after the statue of limitations had passed additionally the supreme court case burnett vs new york central railroad company supports  court here in that case the court stated that both state and federal jurisdictions have recognized the unfairness in barring the plaintiffs action solely because a prior timely action was dismissed for improper venue after the applicable statue of limitations had passed this is almost good morning may please the court i'm assistant attorney general kasey general and i represent defendants opposed hans filed this action more than three years after he was assaulted by an inmate at a prison which none of the defendants work at but hans repeated absence of diligence let's assume whether it's under washington law or under federal law that the case is taught the statutes told took him additional four months or so to file a complaint is that the issue as to whether or not he was diligent during that period of time something that would warrant some additional fact finance mean we can't conclude he was or wasn't based on the record we have now can only in this case you can your honor indeed there have been a number of cases record declined to apply applicable tolling out a pleading stage and that's exactly here what we can tell from the record here is that mr hahn waited three years or minus one day to file the action he then well  but that's we can't conclude from that that he was not diligent that he was within the statute of limitations i mean lawyers do this all the time they wait until the last minute to file a claim that we also know is that mr hahn failed to appeal the eastern district dismissal which is the real issue that he's trying to get out through this case he failed to appeal that dismissal not once but twice and your honor it would be a different case if we were unclear what had happened in those four months but what we know from the record is that mr hahn was actively and very diligently litigating his havey as corpus petition in the western district of washington precisely during that four month period we know that he filed a thirty based solely on diligence alone indeed that's what this court did in erickson view surface while unpublished it's instructive for this court in that case the court held that the eriksson's were not diligent as a matter of law and that further factual development was not necessary when they failed to seek an extension they failed to seek reconsideration of a previous dismissal and they failed to appeal and rather just filed a new untimely action and that's precisely what mr hahn did here and so based on those diligence principles of the absence of the diligence here this court can affirm based solely on that ground and really need not resolve the issue of what's equitable tolling to applies similarly the so you're asking us to conclude based on the fact that he waited until he had one day left on the statute of limitations and then in the interval follow the hey b s petition you're asking us to conclude based on those two facts that he was not diligent in know is that mr hahn waited nearly one year to file for relief from judgment based on the eastern district previous dismissal and again failed to appeal that all mr hahn had to do in order  to timely or in order to perhaps undercut the diligence argument was to place the complaint which he had already drafted for the eastern district in the same envelope and send it to the western desert the washington which is where he was living in his  there may be facts that indicate that he was not diligent but my my question to you at the outset was isn't that something that the lower court should look at and in terms of it and have a complete fact court found very same circumstances here where it needed to sooner and maybe as petition delayed filing the action until the very last minute the state action until the very last minute and then waited a whole five months after that action was complete to on federal actable towing in this case would be a remarkable departure from federal law indeed if mr han's argument were correct that merely because he was precluded from filing in the western district  essentially any framework or burden regarding equitable tolling would frustrate the purposes of compensation and attorneys and we know that can't be the case because this court and the united states supreme court have routinely held that towing is a very narrow exception and so for this court to venture into that based on the facts of this case would be inappropriate indeed as your honor referred to the time audio case there's an interesting quote very that relates very closely to this case the court held that a state statute cannot be considered inconsistent with federal law merely because the statute causes the plaintiff to lose the litigation and that's precisely what mr hyde is asking for here cannot do so i'm curious on the diligence question i've been looking through the record as we've been talking to confirm this do we have a declaration from mr han on diligence we do not your honor but again whatever facts he can demonstrate or would perhaps be able to demonstrate henri mand would frankly be futile because what we know is that mr hahn was able to actively and very capabl do we know when mr harmon learned that his complaint had been dismissed as opposed to transferred no we don't your honor isn't that important i don't really look at the issue of diligence i don't believe that it is your honor because regardless of whether he had the opportunity to refile on that very day he certainly had the opportunity to appeal that so whether it was one day or three day or the very day that the you know what the motion  order dismissing the case yes on do we know when he learned that it well it gets to the same issue do we know when he learned that his case had been dismissed as opposed to transferred no your honor i don't know again though that that exact day matter of fact that might be important in terms of determining diligence the exact day that he received a term that he says he said been dismissed and that and then he had to refile i think perhaps  related to refile but i don't believe the exact day is related to the appeal but even if this court disagrees what we do know is that mr hahn failed to appeal not that just that first time but a second time and we also know from the record that mr hahn was mr macdonald if we were to find a equitable tolling nerve if we were looking to find equitable tolling under washington law does it require us to conclude that there was egre no your honor the key fact is that the court's error is what caused mr hans time bar and i want to begin by answering your honour's question that yes this is the type of case where this court should remain and for further fact finding until it runs in fact that is exactly what this court did in spits in vs more were remanded the question of whether a plaintiff who waited five months to refile the case was diligent as you want to point out that as a fact intensive question that this court should remand for further factual development such as mr giving mr hahn the opportunity to file a declaration well before we get there we've got to total the statute of limitations of course your honor now so how do we do that this court can first look to washington law and determine based on bonds and carter that washington law applies as opposing counsel pointed out is not control in this case because it was factually similar to bonds it does not deal with the question of court error and lastly if this court is ultimately traditional standard book carter and bonds expanded that slightly for a court error that causes a plaintiff to be entirely barred from court and that is what happened here thank you thank you very much for your argument this matter submitted and i thank