improperly windage summary judgment on appeal you statute of limitations the thing that based upon the lack of due diligence i would like to take the those issues in in reverse order if i requested an issue a second civil process request was filed requesting service to the secretary of state by certified mail and then on april the second the citation prepared were prepared but instead of being directed to the secretary of state they were mailed to the attorneys office and then on june seventeen the june seventeenth that haitian requests on june twenty ninth and despite the properties being paid the intake manager there lot the the case basically closed the case included with the documents i submitted is the affidavit a favor were east who was the legal secretary who filed the citation request in march and finally on july thirteenth nearly a month after the third request was citation as admission of the proper fee service was finally t this explanation and errors in the clerk's office whether or not the palest were diligent in effectuating service is a question of fact for the jury in that regard the court's focus of their due diligence analysis on lapses without explanation explain lapses do not constitute lack of  plaintiff is not required to use the highest degree to procure service but requires the use of as a court is aware of the degree of diligence that ordinarily prudent person would u that the office didn't check back to see for some period of time whether service had been effected what what do you respond to  the service she indicated to me that she had done that and that the citations had not been served as of yet and i was under the impression  and so that was my understanding and it wasn't until it got a little bit later that i started to question whether or not in fact or exactly what was going on at the time and the defendant because as the court is a we're in addition to the statute of limitations being intended to see that a case is prosecuted within a certain period of time the court h also see it that it is also important because the defendants have the right and need to know as soon as possible of the claims against them  and these documents all part of the part of the record on december the sixth circe that they're ticked to the deeds home who identified the cracked evaporate period as a problem on the repair tech came back and replaced the quick to evaporate opinion on on that same date the twenty second the d e mail carrier and bowls with information regarding medicare on december twenty fourth the deeds completed section one of two one in two of the medicare requests for social security number health information for care and both with said to on j were the second  attaching requested information the model number of the refrigerator proof of purchase copy repair water location a product from inspection photographs medicare medical records and lost wages information of which there about four months later that law firm advised the d h we don't want to accept your case the d c came to my office for the first time in september of well in august of twenty fourteen the statue written in october i accepted their case of representation on on october for me on september the fifteen approximately four weeks before the expiration of the statue of limitations at that time i was in communication with were who regarding selling the case as a matter of fact i responded on november the level of twenty fourteen to an e mail morning or honors may please the court my name is jason wagner and i represent whirlpool corporation and sears roebuck and company in this matter the district court's decision dismissing this case in august of twenty thousand was correct for three reasons the primary reason that it was correct was because the lack of due diligence in serving the defendants in this case for almost nine months after the statute of limitations ran was not only established and the defendant's motion for summary judgment but was never properly or appropriately rebutted in the  responses and there were several responses that were filed in this case there were a total of three motions for summary judgment that the defendants in the court below filed the initial motion for summary judgment was filed on the basis limitations that was at the time that the case raised claims that had a two year statute of limitations that court considered that motion for summary judgment when we presented to the court the court petition showing the date of injury and the date of filing of the lawsuit along with the evidence in the state district courts file that showed when citations were issued and while i don't have the chronology that's been provided  your honor's i can tell you this much that the evidence in the record particularly and most importantly the fayre reese affidavit which was provided very late in the game actually after after the summary judgment limitations had been granted and when it was presented to the court in the form of the motion for reconsideration filed by appellant but taking it added space value that shows that it was five months and five days after the statute of limitations ran that ms rees who was the new secretary for my friend had determined that there had not been a citation served on either defendant so there is a gap of about five months from the time that the lawsuit is filed in state district court here is county until the time that it's determined that there is no citation or service on the on the part of the two defendants in this case can you help us with understanding the procedure where of the citation was being what were the words held for pick up our health for delivery something something like that just how does that work well it's unclear if that actually occurred on this record your honor what there's competing evidence in the record what we heard initially was that the a temporary secretary had paid the wrong service fee at the time of the filing on october the seventeenth of two thousand and fourteen and because the wrong service fee was was paid despite the fact that a a request for service had been made the district clerk held on to that citation later on we find out in looking at some of the other documents that the briefing in the court below in this court indicate that there may never have been a request for service at the time that the lawsuit was filed so the record is unclear but essentially one way or the other either a correct fee was not paid at the time only a fee for one defendant service not to was paid or a request was never made for issuance of citation at the initial time of the filing of the lawsuit so it was it was it later if there was a request for service but it didn't go to the secretar the correct fee at the time and what the research david indicates is that the district clerk did issue a citation but as she puts it in her investigation after the fact the citations were placed in the file with no indication of further action having been taken to have them served and that's a reset for david in the record nine twenty five and nine twenty six that admission at that point occurred on april and fifteen and the reason why that dates important it's five months and fifteen days after the statute of limitations so if you're just looking at the two occasions when there's a request for service that's that's being processed administratively through my friends law office then we can see that in the first occasion either one wasn't requested or the wrong feet was paid or the fee was paid for only one defendant and no one ever got them and so they were destroyed in the second event which is over five months after the statute of limitations run it's apparently sent to the office but they're found in the in the lawyers files nothing having been done to them and in between the time of filing and that event in early april there is no activity there's no diligence whatsoever there's no effort there may be intent on the part of counsel to get these defendants served and he may in fact be communicating with whirlpool representatives both before and after the lawsuit is filed but nowhere in those documents which are in the record it two twenty five to two forty eight will you find any indication from from my friend that he is telling the whirlpool representative that a lawsuit has been filed to be on the lookout for the case and no where will you see the whirlpool representative indicating we are aware a lawsuit has been filed and we will be hiring an attorney to represent that whirlpool and sears in this case so in that instance you have a at least a five month five day gap of no activity whatsoever and under the cases and rigo and liles you've got to show that you're exercising ordinarily ordinary diligence as an ordinarily prudent person or a lawyer would in th circumstance in order to told the statute of limitations because the statute doesn't stop doesn't get told unless you actually size that due diligence and here there was no due diligence exercise and my friend is right ordinarily that's a fact question and ordinarily an excuse is sufficient but the cases hold particularly when an excuse is is given that is invalid or under reasonable or implausible even if you offer an excuse in that circumstance it's insufficient in order to show due diligence and in that circumstance the lack of due diligence can be found as a matter of law another instance when a lack of due diligence can be found as a matter of law is when the lapses are too great there are cases that are cited in the record in texas supreme court and intermediate appellate courts that have shorter time periods of the lay than the nearly nine months that lay in this case where either excuses were found to be invalid or where the lapse of time was too long those are three months in boy yada and dewey five months in webster and gonzales and six months in allen so it's it's the applebee's position in this case that there was simply on this record that judge harmon considered and wrote least combined sixty pages of written opinion on this matter analyzing and setting forth how each party made their argument and presented the evidence there is ample evidence to indicate not only that the  established their right summary judgment but that no fact issue could exist on the appellant's on the appellant's efforts in due diligence in order to get service it was interesting that judge harmon noted that this late arriving affidavit from from ms reese was brought in at the motion for reconsideration time in an effort to to show and establish that there was some diligence exercised but she noted that it was ironic because in reviewing the affidavit closely and looking at the timeline you actually began to see larger gaps in the record where there was no activity that's in fact how we found out that these citations had been dropped into counsel's file at his office and nothing was ever heard or seen from or followed up on that issue again so ultimately when we in the events in april when the request is made for the second citations and their drop in the file you've got to look at that gap too and see whether the excuses that are offer a reasonable or unreasonable in this case their own reasons because it doesn't take it takes over two months from the time that the citations are dropped in the file before it's even realized that the defendants have not been served in this case so we've got the  months at the beginning and then we've got a two month period after the citations are received and dropped in the file where nobody's doing anything and certainly there's nothing in the record to indicate during those times that it's particularly the the  two months that counsel isn't negotiating or talking with anybody about settlement with respect to the discussions pertaining to settlement i will note there's at least three cases that we between the two of us that indicate that ongoing settlement negotiations that occur around the time of the statute of limitations expiring do not extend the statute of limitations if there's not an equitable argument in the absence of some sort of affirmative misrepresentation and there wasn't one here there's not any in the record i'm referring in particular to the sharpe case and to the  case was proceeding and fair enough fair enough your honor i will note in his brief he does he does make the pitch for some sort of equitable remedy and so given the presentation that he made and in his first part of his argument  know somewhat at a disadvantage if he chooses to bring it up in his rebuttal but nevertheless there's no there's no legal support in the cases that have been cited on both sides for that kind of equitable remedy or approach so for those reasons we believe that the district court made the correct decision applied the law appropriately in connection with the determination to there was a lack of due diligence as a matter of law to serve the defendants in this case with respect to the second argument that opponents present which they did not get to in their initial fifteen minutes or so that they argued that the district court made an incorrect decision  and did not follow the law properly in rescinding and vacating the magistrate judge's order that had allowed them to amend their complaint to add warranty claims and just to give you a brief background as i mentioned the lawsuit was filed in state court with a two year statute limitation cause of action we filed the summary judgment against those claims while that summary judgment was pending and four months after the deadline had expired to amend pleadings the appellant's filed a motion for leave seeking to amend their complaint warranty claims obviously with a four year statute of limitations they were trying to avoid the summary judgment that was and should have been clearly granted on the basis of limitations the the motion was referred to the magistrate judge the mass magistrate judge considered the motion considered our response which objected on various grounds undue delay futility particularly because he hadn't provided creasy notice he hadn't he didn't have experts in this case in order to make the products liability claim which is what this case is nevertheless the magistrate judge granted his motion for leave to a man and that was on in a one page work the problem with that one page order quite frankly for the district court was that there were there was no analysis under rule sixteen which governed particularly because there was a scheduling were in place there was no showing or analysis or finding a good cause and secondarily under rule fifteen there had been no analysis under the principles that it's that fourth in the in the foeman case nevertheless the defendants at that time did not lodge an injection or ask the district court to reconsider that motion for leave at that time instead we continued on the case because we had confidence on the limitations argument the expert issues and other issues in the case at a later date that the district judge she did not immediately resend it at that time instead what judge harmon did after going through an analysis of several pages was to determine that the proposed complaint failed to meet twelve the sixteen words and she allowed the appellant's to attempt to replete so the appellant replied and at that time the district court judge made a determination to resolve the case on the order that we're hear about today which is which was to determine that the decision by the magistrate judge back in june of two thousand and sixteen had been clearly erroneous based upon all the evidence and argument that had been submitted in fact if you take a look at the two page seven paragraph motion for leave that was filed by appellants you won't find any arguments in there that relate to good cause or to justify the turned that over on its head and it actually supports the position that the district court reached when it rescinded that magistrate judge's order and here's why because if the if the defendants at the time knew about the the potential warranty claims or the facts upon which the warranty claims were based then certainly the appellants did certainly the plaintiffs did certainly their lawyer did and so those claims should have been brought when the suit was filed initially in state court at any time before the scheduling order was entered by the district court judge or sooner than four months after the deadline for amendment of pleadings had expired none of that happened in this case and the district court analyze that according to the southwestern bell case and determined that good cause was not shown good cause to allow that amendment of the pleading did not law it was contrary to the application of rule sixteen it was contrary to this circuit's authority on the matter southwestern bell and other cases and so based upon that the district court properly determined and exercised its authority under section six thirty six and rule seventy two that it could come into the come into the magistrate judge's decision analyze it which it did in great detail and decide that in this case for the reasons that i've provided to you here today and for the reasons the district court did in its in its order of dismissal that it  that that that motion should not have been granted by the magistrate given that the motion should not have been granted by the magistrate judge the district court properly struck that second amended complain and since there were no other claims that were in existence at the time of this order in august of two thousand and seventeen for the district court to consider other than those which had already been dismissed by by the court some months earlier the district court properly of decided to dismiss this case in its entirety and there's language it's strong language in that district court's opinion there's no question about it about the delay dilatoriness the lack of attention to staff the lack of attention to the case it's it's replete in the record it's a tough record to overcome for sure and so we believe that the reasoning from the district court based upon the cases that i've talked about that we've cited in our brief and in that are in the record support affirming the district court's decision on its order and dismissing this case  that sense the amended complaint did not require any amendment of the scheduling order then ruth fifteen was it is a controlling rule with regard to the motion to me and and years there's evidence in this case that over the nine month period of time that the palays are complaining about there were three attempts now whether or not they were effective whether or not they were with regard to the amended complaint as i stated it did not require any amendment of the scheduling order no additional evidence nothing that's what the magistrate stacy was correct in her application of rule fifteen amended pleadings and that will sixteen scheduling orders probate judge who did nothing nothing for four months they came to me at the last minute i attempted to preserve their case and their cause of action because they were entitled to it we asked this court for equity for justice and not to subject the deeds to the manifest injustice of having their case this are thank you mr garrison your case is under submission of be sure that mr wagner gets a copies of what you have out today i had misunderstood i thought you had already given us to him that he needs those today thank you