repeatedly emphasized that motions for continuance and discovery in response to indignation or summary judgment should be granted almost as a matter of course  and well because you still have to show specifically what you want it's first and second why it's it's necessary i'm not sure that was done here it's not the words there's nothing automatic about the granting of a motion under that subsection of the rule it's not automatic the court's correct and there is a requirement that there be a demonstration what discovery areas of discovery that were specifically delineated by the by the no on movement of the discovery that was needed discrepancy between the note in the guarantee attorney who claimed to be the liquidator and he was claiming just in the most conclusion refashion once you have got personal knowledge there's no demonstration of his basis for personal knowledge of the it's true if there's a bank officer and he or she has knowledge actual knowledge of what transpired sure they can sign an affidavit there's nothing to demonstrate that the attorney for the intervenor  d basis for any personal knowledge and there's no explanation of what a liquidator was in this context for this entity  that they wanted to test the discovery was needed as for the reason for stopping the funding under the no of only about half of the five million dollars that was committed was funded still discovery to develop the damages person to the counterplay so the court is absolutely correct it's not an automatic granting of additional time but in this situation the trial court's  of time there was a four year time gap between when the z and the intervention was filed a counterclaim was thought to which no answer was ever file into a settlement that where it was and to dissipate it that funds in the registry of the court would resolve the claim of the intervener and they ended up not happening and so out of the blue was no advance warning favor and the court as is well aware of those but what was the situation here we had objections to an f b i agent who had not demonstrated what the basis was of his so called personal knowledge  there was a variation between the of a identified in the note versus the plaintive in the intervention days no explanation given for that other than the f k a now one thing that was very important in the trial court and that had to be emphasized was that all the old is is a guarantee instrument and i'm sure the courts very well aware of the dangers of a guarantor faces when he or she signs such a document the way banks have waivers and all that put into them this instrument was written to to be under a new york law on the case law that was cited to the district court of pointed out that under new york law signing cooperative central execution conduct of the lender can be a basis for a defense by the by the guarantor so there's case law under new york law the law selected by  the by the note holder to support the fact that there is this defense but what about the damage of the counter claim here's the second instance of the travesty that occurred  declaration i mean is one thing to say that somebody said something it's false and gee that's bad taste in i recognize it is that's exactly what happens if the court has discretion under rule fifty six but if you read the declaration nowhere does it say i lost these specific attorney it's because of the failure to fund it does not say that instead what the affidavits what the declaration said was that i was unable to continue paying attorneys the court before whom this motion for summary judgment was pending by the intervention plaintiffs is the same court that it disqualified mr hill prior counsel so no he's not going to hide the fact from this court that you made a ruling or years earlier of course it's not going to be done and nothing in that aeration said to the contrary that's important the magistrate judge absolutely does abused her discretion by striking that declaration instead what he said was that because i wasn't getting that this additional two and a half million dollars i was unable to fund by hiring attorneys that are terribly basis to fund my pursuit of the litigation it was extremely complex extremely hard fought long ending litigation with a large family dispute and that and it required a lot of money to fund if it's going to be done over an hourly basis that's why there was a five million dollars note obtained that's why this procedure was followed to get that funding for the litigation and because it wasn't done mystery and had to go to attorneys for on a contingency basis and he has testified in his as a direct result of the failure to deliver remaining funds on the revolving credit note i entered the aforementioned contingency agreements with the lawyers that that is in later obtained so that is a demonstration of harm of the exact quantity cation that was one of the bases for the fifty sixty motion of i need to get an expert to the able to give me an exact evaluation as to how much those damages were and that's mr hill individually but if you read the documents the note agreement says this is being guaranteed by the sole owner of the maker if you read to guarantee it says i've got an interest in the underlying transaction because i own the transaction because i only entity that's the borrower so if the interest was disclosed recognizes third party beneficiary contracts fourth ocean corporation versus interstate wrecking company sixty six new york second thirty eight at pages forty four to forty five in the one nine hundred eighty five the new york court of appeals recognizes that there is a third party beneficiary contract so that the contract to fund was with awd tray guarantor was a beneficiary clearly disclosed clearly no to the lender of the whole purpose of the loan transaction was to fund the litigation for mr hill the lenders newsday at the lender structured the documents in this fashion were none waiving the not emphasizing all the other arguments have raised in our brief come and saved everything that's in your brief yes your honor and because time is obviously limited but it must be emphasize there were problems with the attorney affidavit that was signed and improper reliance by the trial court upon both the magistrate judge and a district judge in relying upon that affidavit the simple fact that i tender a note to the court doesn't necessarily cruise that i'm the same person that that that note is made payable to and  be emphasized is that if there was a question about the hill declaration the original one filed with the with the magistrate and considered on the motion for summary judgment in the appeal process to the district court there was a motion is something that where a supplementary declaration was presented which explained the deal ledged discrepancy explain what had been said and explained what was been explained to hal he got from point a to point b and those absolutely disregarded by the court case of the cited by the air strike it and disregard it so what did we have we had questions about the basis of the motion for summary judgment andy existence and personal knowledge to support the affidavit we had your initial time has expired you say time for  feat as with most of the other rules of this court that the courts below the appellant's chose to ignore they are leaving it to me to sort out the standard view for all of these judge's decisions to the district court and they chose to abandon the others then they chose to rasie she's in this court that they didn't raise anywhere in the court immediately filed a rule fifty sixty monk ship perhaps council's coming in at this stage is not totally familiar with the record but this lawyer i in the record is very clear that under the local rules of the northern district response to a motion for summary judgment is due within twenty one days after the motion was filed in this case  the response which for the first time contained a rule fifty six d motion was filed two weeks after the deadline for filing a response the motion for summ be the books and records of the original pay none and under the statutory presumption texas business and commerce code article three section three point zero one section case you cannot be in default without having then given seven days notice that was never done in this case no default judgment was injured and based on the authorities your honor  based on a technicality of not having five and any answer previously i believe the case we cited is virtually in point to describe failure to follow my answer is a technicality with me and only the legal point that you're making maybe may be valid but it's hardly a technicality if you just don't answer something then album withdraw the term technicality they did not previously file and they answer so again under the rules in under the a political case law the fact that p p l didn't file an answer to the  want to talk for just a moment since the if she was not previously raised in the briefing in this court about the status of the guarantor and the question of damages again that he she was and it was raised in the court below that was not raised to brief in this court otherwise we would have responded to you know our brief for th raised with respect to that in the court below and i'm not sure at this point whether this was one of the each she states they raised it to district court level or at the  material differences between the two so how can he say i couldn't couldn't hire lawyers when he did and he got a better deal so the damages he she there's no fact he she will be out damages whether you myself the court's going to bounce this case because it's not a final judgment and i was surprised they did they did didn't the court dismissed the case because  had expressly agree that the judgment of the district court would be final in that there would be no peel from that judgment but the fact that this court i don't whether you consider the appeal on the merits or not but what mr hill be about appealing to this court cannot conceivably convert that judgment into a final judgment we had nothing to do with that we were not necessarily followed that any case to hold us responsible for that doesn't seem to me to be fundamentally fair the other leg of that abandonment argument the facts of this case it is simply not right the cases relied on talent or the case relied on the vaughn case was a case involving only two parties to dispose of the other claims in family to dispose of our client which is what brings us here today  a fifty six a for the continuance as an abuse of discretion standard those are the standards of review and we're not asking the court to do anything different than what the law says now what about the semi judgment evidence on the one hand we have an affidavit by an attorney an attorney for a party who says that he's also the late liquidator who doesn't explain the basis of his alleged personal knowledge on the other hand we have the  guarantors declaration that is absolutely stricken and totally disregarded now i take on bridge ed is the assertion that my client log on to the district court or to the magistrate judge as just absolutely false if you look at the declaration the original declaration it does not say i lost big limper as my counsel because the lender refused to make any further finding he doesn't say that document five ninety filed under the e c f number deprived of the necessary source of funding for the underlying litigation i was no longer able to pay my attorneys in the underlying litigation as a result i was forced to retain counsel who would charge me on a contingency basis first off hired campbell erickson and deadly i terminated them for cause  retained the other law firm to represent them to represent me and he said this was a direct result of my funding being temporarily cut off he did not say  continue as his counsel because of the failure to find and so to interpret his declaration as saying that and then say that i'm going to strike that declaration because it was met made in bad faith is an example of bad ses but not on the part of the declarant now he explained that of if it needed any explanation in the supplemental declaration to the standard to the district court he said what i meant what i said in my original declaration that i was no longer able to pay my tourney's the end of the underlying litigation was not just with reference to good clean breuer rather i meant that i could not hire any attorneys on early basis the other firms i want to attempted to hire wanted a hefty retainer which i could not provide and to be paid on the current airily basis that's why he saw in a note to borrow five million dollars to sundance this hard fought in for track the litigation he didn't get the last two and a half million dollars of the funding it was a breach but why was there breach of the evidence indicated the stock market crashed in his hedge fund was short of money so they couldn't continue sunday there's nothing in their record to indicate that there was any wrongdoing on the part of mr hill or of all trade investments the maker of the no two justified the funding so what we have here is a summary judgment that was granted out of the blue based upon in attorney's affidavit that didn't demonstrate personal knowledge of a total of refusal to credit the the tang we have long full conduct by the lender which under new york law is recognized as justifying a defense to the guaranteed now we head of the fifty sixty s motion for a continuance that did specify the five levels that i explained in my initial presentation that did specify the type of additional information that was necessary  submission the case for today