lassie versus united states places counsel argued before the lower court that the reason it was filed outside federal action those absolutely no evidence to suggest that this was a federal entity the defendant offered some information to suggest that on the website of the of the entity it indicated that it was a federal agency but research suggests that it was a five a one c three not for profit those nothing to indicate it was supposed to be treated like the post office that  what was on the what was on the website indicated that it was a five hundred one c three that received funding for the federal government as far as liability which the defendant submitted that was that was some time after the action was brought there was some information on the website that indicated  if i may read from the from defense own brief here that says it has of the date of this brief and has a date of last week's opposition paper is filed in district court hudson river is acquisition in recognition page indicates a following  unclear whether and you something papers of the process server on a sunday september twenty ninth and asked for service on the monday third you write a process server did it did it mail the papers or did it handle  you would have a problem right yes or no but it was not it was submitted to the lower court it was it was personal service that was mailed on a on september thirtieth now the court then goes on to the merits of the claim itself indicating that planes had seen the doctor for two sessions and what she alleged doctors failure to diagnose the problem that she had did not amount to my practice you know in the absence of expert discovery in that matter i just i thought the judge reset question too early it's in fact have well the mailing it says we're going to mail you the affidavit of service it doesn't say that the claim was mailed right your honor i would give you that the e mail is not clear although we do also have in the record  r that doesn't specify whether it was mailed but it does say received on october second right your honor and it would suggest that it was mailed on september thirtieth and see october date and in your honor you know that in the government's papers below the government made this twenty did not argue in his brief that it was handle a very or or suggest that there was a missing page let me ask you about the website and in your brief you give a description that apparently is lifted from the website which does make reference to the u s department of health and human services is that description in the record it was in the government's briefing because the government initially moved for you know under twelve you want to trial the six motion to dismiss it it was presented in our briefing in the same the same way i should in the same manner and in the record saying i believe that there's no i mean there's no affidavit or anything that says this indeed was watch the website looked like at the time in question that's right around although to judge journeys point earlier referencing the printout in mystery most declaration at page seventy eight in the record there is a reference expressly although in mr most application he writes that this printout shows that there is no reference to any look this is not the only page of the prior page says it's a domestic not for profit corporation and hudson river health care inc and when a reasonable lawyer alarm reasonable patient looking at these so the reference there is to an internet archive site that shows on a particular date what the website showed but but i just to i figure on his point and i just want to point out that this court has been very clear i mean a q c and philips that in order to the two years in fact it appears it was the time mr mo put in this declaration last year that he first looked at the website and the only other reference is to looking at the new york secretary of state website which was in april of twenty thirteen which is more than three years after both  to the website and i'm just a little confused about something he said before it's your district court citation to the website to the website as it appeared at the time of the defendant's action or right now do you have is a copy of your papers to the district or part of the record before us not necessarily the pending but it's part of the record in the case yes that part of the is that there is absolutely no evidence here in the record of any diligence whatsoever during the two year period that kind of seeks to total and i don't believe that in briefing blower briefing here has pointed to anything any steps told is not simply generalized diligence but in particular diligence with respect to the appropriate parties to see you in any restrictions that might exist as to the time in the forum and there's simply nothing in the record suggests that miss lastic or her attorney did absolutely anything during  that in his last six years rather that dr care faired failed to comport with accepted medical practice which is a standard that would have to be met there's simply not evidence and i believe my adversary noted in his argument that he agrees that there simply isn't evidence here that he would have needed some sort of expert evidence or something else and i would note that the district court when the district court converted the motion to dismiss to a motion for summary judgment in in may of twenty fifteen express lee invited plaintiffs to move either party to bring an appropriate motion under rule fifty sixty for additional discovery and although plaintiffs counsel did in fact put in the record you know a declaration from himself attaching certain exhibits he didn't request any intents and purposes appear to be if i was his regency and the action was brought on that basis it was only when a defendant raised this issue later on and one realized that it's a federal agency it would be impossible early to to bring and print out something to indicate you made some search and bringing actions against what may appear to be state agencies one does a basic search to make sure that well is this is a state entity it's found out that it isn't and isn't since the impression was that it was a private one who simply bring the action would have known that if you looked at their website you would have seen that and so you have to tell us why you think that was error because it could be you're looking for equity you're looking to be tapped the statute of limitations told say you add the burden to show that you could not have discovered their federal status due diligence in this and this district court said you would have discovered if you looked on their web site why why is that not why is that and use discretion because  most an attorney would most people would not in would not believe in as an entity that appears in new york state department of corporations website department state website as a corporation a five hundred one c three simultaneously federal agency it says it it receives federal dollars incomplete that there isn't actually different even of service that was submitted to the lower court and how is it that you're saying i mean we ought to be able to pull this document and you are saying we'll find the affidavit of the district court did not give you the opportunity to have it stated that it was going to invite was going to convert to summary judgment motion and we could submit documents i regard you needed more you had the opportunity to file your opposition to the papers yes soon began to argue in there that you needed discovery or you needed anything further  i i'm asking this because one ground on which we could affirm would be that the district court ruled against you on the merits and that we don't i get to fight any error they are so i'm just giving you an opportunity