here plaintiffs did not stack this class action on top of a failed class action or they filed this on a timely basis using polling from the massachusetts state or case and then the district court here was the first court ruling class that a patient and the judge certified a hole by state class of approximately a thousand persons would receive these legal facts advertisements after that the state court judge knowing that the district court had already certified a class the night certification of a massachusetts residents class so i bought a thousand massachusetts residents were in the class or divide here the judge in state court than i certification of back class but they've already been certified and in her opinion she notes that that the case is basically we're running parallel with the same attorneys on both sides and had shared discovery against the entire class and the name pointed based on the statute of limitations the court then set a deadline for you to respond to that motion you didn't respond to it and the court then dismissed it but the fall for the waiver because the district court ruled on the merits of the argument and we're asking this work to do the same the failure to file a brief it was inadvertent but the arguments are just this court's opinion all the facts and law were in front of the district court we're not adding anything new that she didn't have you know the defendants should the judge let the defendants file a motion for summary judgment after the deadline and then we and then we i think that this court's huge loss of orth that exception in some cases and it would be like this one where it's an issue of law where we didn't file a preferred sample and leave out points that we were trying to you know where there's no ambush here we weren't there's not really any prejudice that down the same things that we're arguing there are things that would be raised from reading the case without an argument from what's our what's your best case for just standard review  of point that you made in your in your question however the district judge didn't grant summary judgment against the served by class grant summary judgment against the name plaintiffs because she denied the first part of the ruling is that she denies our request to approve the class notice and notify the class so she socially certified class the out maybe i didn't i don't think we realized that at the time really because she should not granted summary judgment on the statute of limitations grounds so maybe she helped us out by the certifying the class and in fact because then the class didn't lose on the sexual impressions issue but our case was already gone by also obviously it doesn't the stache not going to rule run against that and the class was already certified so there was no reason for any class member to do anything when the class or it was the night in state court but what the court my name is scott over i represent interstate mack corporation and to touch on an issue that judge had was just addressing in terms of the waiver argument i counsel indicated that  failing to oppose the summary judgment in any fashion and only raising those arguments in connection with its motion to clarify most to reconsider the court's order on the summary judgment so as  the the issues that they raise now in opposition to or in spite of their their appeal i would suggest that those arguments are weight but notwithstanding that your honor i would your honors i would suggest that the substantive law suggest that the their attempt at stacking class actions in this case is improper and is not what is allowed by the tolling rules that were set forth by the supreme court in american pipe and crown court how could you the memorandum of decision so we don't know the basis for the decision but as part of their motion for clarification and reconsideration following the summary judgment order part of that request was actually until i hear now that if we heard from you you're going to go out here and claim that all these class members who had no idea that their rights w ruled on the certification issues just out big expressly expressed interest but i would suggest to the extent that your are suggesting that  so i just am not suggesting that it's necessarily binding on those class members in the sense that they weren't given notice is by me on the sense that they are the exact same exact type  the classification issue if at that point the quote that the court denied the classification as it didn't this case that class members then would be free to file suit within the remaining statute of limitations to either would have you would have to work to here is to allow places to file multiple class actions involving the same overlapping classes and it taken to its extreme places could find out any number past actions and then and then deal with deciding which court it deemed the best provide the best result to the facts and that's exactly what the course of trying to avoid by using the class action mechanism it's designed to actually prevent the additional motions intervene and the additional suits from being filed either by individual past members or or by additional class members so for that purpose it required us to notify the class that it was the certified then people would have known you know america says that even though not everybody is watching the court file the presumption is that is that the public's in title the law and what's happening and so the reason people don't run around filing look at the cases because there's one file and council you know we're not here advocating for the ability to file fifty class actions or the same thing and all over try to find the best judge or whatever but that's not what happened here what happened is we filed a class action in massachusetts state court on behalf of all persons who received these illegal faxes and the defendant knew who they sent the faxes to but we didn't until enduring case we learned of that included people outside massachusetts and massachusetts state courts aren't allowed to certify classes that include people outside massachusetts because their rules have been interpreted not to require or even allow opt out notice that the notice of the right to opt out so they exclude people from outside massachusetts so we've got another person who was interested in violin case who happened to be a massachusetts resident that person agrees to leave the massachusetts state court case file a new class here on behalf of everybody as a way of bringing in the nine massachusetts class numbers and then the cases proceeded together there was skullduggery or anything in federal court cases happened to move quicker than state court cases and particularly in this instance and in fact the after the judge certified a class in this case the parties reached an agreement to ask the state court to stay the case but by the time the motion was about be filed the judge had already ruled on the ask then it seems to me you could wait till just before the statute ations was about to expire the a six year statute for example only to five and a half years five class action one that would go on for a year maybe to get close to certification or you could then a year later seven years out from the event class action too and then one would drop by the wayside you just let it go into q one for a year you could then that would be allowed in the you know the only purple whose time would be wasted is the courts that's the time of the right message not the parties because they already the defendants defending the same class the whole time they're on notice the whole reason heard the statute of limitations obviously would allow that what we could have done and i don't know that they would had as strong of an argument is we could have just non student the first case we could have said the first plaintiff has declared himself inadequate he's not going to represent the class and then file a second case and everybody including judge easterbrook and some circuit would say that's fine that that kind of thing happens somebody agrees to file a case then they don't want to be the classroom and you have to file another case and then there's the sim similar kind of thing happen we're not nobody's trying to game the system here what we should done is dismissed the state court case and we did it when we filed this case or we should of moved to stay a lot quicker whether or not the other side agreed and we didn't and then we should have filed our brief and we did but we are here today because of those things but nevertheless we're here as true due to reverse the decision so thank you thank you