defense and saw that there were two problems number one the individual to find it was not actually served i i made a mistake by inserting language in my brief about another  case therefore the individual defendants in this case had no actual notice of the follies of this case within one hundred and twenty day period so i wouldn't course that the courts not consider any language in my br deficient under four a and for each which leaves us in a very very difficult position i submit to the court that the only colorable reasonable argument that we made in this case is that unlike the plaintiffs in the gannett harper in this particular case efforts were made to serve the individual defendants before either the court or the city notified the plaintiff of any defect in service about one year before the defendant filed gave indication that they would follow a motion to dismiss based on the fact that individual to finish were not properly served i made efforts to serve the individual defense in this case by hiring a professional processor and i submit to the court that that makes to certain extent the facts of this case different than the facts in the gannon harper were in those cases as well as the part of either the court or the city notify the plaintiff of the defects in the service that did not happen here in this particular case good faith efforts to serve the individual defendants in this case i submit to the court that the only proper analysis on the for in foresee would be and i of course i haven't found any cases like this particular of circumstances analysis i submit to the court that using that type of analysis using that type of logic it may make it may create a situation where the plaintiff can get out of the fo is an alternative argument that you're making now but that's correct ok and just it isn't i understand what you're saying the part about your withdrawing the claim that any of the defendants had actual notice that covers what i think it was a mistake in the brief where you talked about a captain crew tallish those criteria is not a figure in this case at all there are seven individual defendants in this case he's not one of them so i  corrections officers and that's how this confusion happened and you're free when the issue of service came up in that particular case obviously i started looking at different cases where the services you may have come up good faith exception read into for any and for each and again at harper as well as a totality of circumstances analysis regarding the efforts made to serve the defendants beyond a one hundred and twenty days but before any notice was given by the city of new york and or any court would you would you agree with me mr curtain that your notice of appeal did not identify what is in substance the order that are the the parties will i filed a motion to ask for an extension of time on the four am to serve the individual defendants and there was a decision that was denied that was denied any order made by the court neither the final judgment was a judgment finally in favor of the city of new york on summary judgment and final judgment was adjured than and your notice of appeal identifies that appeal does not identify that order it does not say we are appealing from that order that's it only size you are appealing from the final judgment that's a possibility all right and would you agree that if you have not identified that order given the way the appellate rules work now we are without jurisdiction in substance to consider the arguments you are making about the  process your honor again the entire thrust of the argument made by the plaintiff is about the foreign service no i totally understand what the thrust of the argument is sweet i have to go back this court has to go back to look at what the appellate rule requires you to identify in order for us to have jurisdiction to consider your argument and i just want to make sure i am not missing something that somewhere there is a notice that has identified the order that you are appealing from the notice of appeal was filed in a manner that was foiled to the extent that the court is correct i'll have to look other defendants as correct and then eventually so they the four m order was not immediately appeal because it wasn't a final order disposing of the entire case it's great and you file an appeal at the very end of the case from the judgment and so i take it you are maintaining rightly or wrongly that appealing from the final judgment brings up all the underlying orders that's that's correct that there will be opposition arguments those are issues that i looked into for our argument here today as to the arguments that were briefed before this court as to the denial of the request  discretionary extension of time for service the district court providently exercised its discretion in denying that request standing here today and the palate has conceded that defendants had no actual  notice he conceded in his brief that there was no good cause cause for failure to serve what's left here are the factors of whether or not the defendants concealed to be defects and there's simply no evidence  in the record that that was the case the point of hand all the information he needed for a proper service and in fact the docket notes that no summons was issued and the civil court cover sheet that was given to him is stamped in large bold letters no summons issue so certainly plaintiff's counsel was on notice from the court at the very least that a summons had never issued in this case in terms of prejudice dependents of course would be prejudiced given the egregious delay the allegations that gave rise to the filing of the complaints occurred almost ten years ago in april two thousand and ten and prejudice is assumed where the statue of limitations has run here in the plain to his very st efforts at service when plaintive ultimately retained their professional process service was nine months after filing the complaint five months after carefully considered that and said that even that didn't outweigh councils or p did an on going disregard of the preceding requirements of service so i would ask that this court affirm the judgment of the district notice of appeal specifically states the march judgment and doesn't include language that would include the underlying orders thank you very much  reserved one minute for rebuttal your honor in terms of a prejudice the defense counsel st notify the court and the parties about one week before the end of fact discovery was completed in this case there was no information allegation that what this is could not be found information would be lost or somehow the information could not be turned over to the plaintiff i submitted it what to do was no prejudice and would not have been prejudice had the court  granted the extension in the forum you know mr and when you say you said this in your brief also this issue was raised by the defendants only a few days before the end of fact discovery somewhat almost amused by that as a former district judge because it seems to me this is a very common kind of situation where it's only five days before the end of discovery but not a heck of a lot of discovery has actually happened there there were no depositions noticed of any of the defendants were there there was scheduled room it was scheduled for those last five days and they were going to take place in those five days and we're just being made between the parties to definitions and then there would need to be an extension of the discovery period of the district judge at some conference or other that was no doubt also on the schedule to allow these timely depositions to take place right i mean this is not a case where lots of discovery had happened and we're very close to the end of the discovery period and suddenly they bring this up we're close to the end of the scheduled discovery period but as i as far as i know from the record and you can correct me if i'm wrong none of these depositions had taken place and when you say st you said they were scheduled to take place then you sort of read retrenched two there were negotiations underway with respect to scheduling them the point i was a strike to make is the defendant never raised this in their answer never raised it at the early stages of discovery all of paper in fact discovery except for the depositions were completed at the time the the the notice to file a motion was made by the counsel fed to city ever enter a notice of appearance on behalf of the individual defend you we'll reserve decision in this case