and your interest and edwards and several other cases the court has said that you should look at five years in law in determining whether there was an abuse in filed a motion to file right but i would argue that the same five factors should apply certainly the stain purposes would be met in looking at both issues the on which wouldn't even be something that's subject to the normal rules but i think that's that's sort of part of the problem because it was offered up in response it appears by the timing to the findings of recommendation i have to go to the district judge so when the magistrate judge deny that that was the end of the story for that particular motion what does go to the district judge is the findings and recommendations on dismissal by your predecessor counsel didn't file comes and goes you don't do anything i have to go through some five factors some of the factors i would know nothing about because you haven't filed anything in response well yes i think that record an explanation of what had happened was ten days later we're not talking about months worth of time here the courts need to manage the docket i think that that factor is always a surprise i can tell from the case in favor of  clearly under your hand and read park in terms of the issue of the actual review of the motion for filing a late amended complaint again i think the court is correct that there is a threshold layer here which is that not compliance with local rule seven point one i think councils in correct that you need to engage in a verdict five factor analysis for violations of local rules in fact i did some brief research on th matter and i have a case that the court wants to hear it but a simple scan west law shows that when a nice turkey considers noncompliance with concern for old rules which are very common in district courts the courts simply reviews for abuse of discretion there is no outlay of five factors of the motion to dismiss i suppose the motion to file a that is correct that is our position however what i would say is just we're going to go oh ok what i would say is that the issue of whether or not the original order was affirmed or adopted on the motion to dismiss or versus the order being adopted on the motion to file late it's a little bit of a red herring because ultimately what happened was a motion to file late was submitted and the magistrate did in fact consider that motion he didn't reject it out of that you have to give a timely signal i believe that's what they were trying to reconcile and w m next technologies that there has to be some kind of timely signal where you rest on your original complaint saying hey i disagree not violating judge order order in terms of prejudice to the did stricken opposing counsel and frankly prejudice to the court itself isn't the plaintiff obligated to respond in some way to a direct order whether it's just a judge we're going to do it i'm going to be late or you know what judge you got it completely wrong we're not going to do anything but there has to be some timely statement beforehand saying we're not going to go down that path to simply sit on your going to peel away the layers of the onion i think that you can say under local rule seven point one there is no can for all and that's the end of the story there was no abuse of discretion the language of the local rule is clear the district court may deny the motion if you do however decide that you get to the thirty five factor test first of all we're looking of course of the abuse of discretion standard and i think that language is very clear you have to have a definite and firm conviction of clear error of judgment so even if it's close even if it's three to two or two to three i don't think you could say that we may have decided it differently judge kaufman got it wrong i think there has to be that stringent level of review of the don't let's go through these and take a look expeditious resolution of the litigation  type of proceeding remember we're talking about individuals with disabilities education act case which is contrary to what the plaintiff is asserting is more in the nature of an appeal of an administrative decision i think also back and i think i provided the court with the full administrative record i remember the court contacted me and said they wanted that i sent that to the court if you actually review the full administrative hearing the issue had to do with placement if ultimately the district is found to have not provided an appropriate program the thing to remember is the remedy for that is compensatory education per day compensatory education that the district would after provide so in this case issues of timing and prejudice are particularly market because every day that the district is found not to have you know offered an appropriate placement and remember i agree with council my understanding is that henry is currently being homeschooled by the parents as opposed to being placed in an educational setting it's two years later i think the hearing occurred in two thousand and one of your coming up on three four years later if we're ultimately determined to have not offered an appropriate placement every day that passes the district staff are going to have to our hours upon hours of compensatory education to is that reaching the resolution on the merits again remember this is an appeal this is not a situation where a district court dismissed on a motion to dismiss there was never any factual decisionmaking done remember this is an appeal of administrative law judges decision there has been a full consideration of the record in fact the administrative law judge was the one who actually made the fact finding determinations on an id a appeal that is the district court the magistrate actually function more like us as an appellate body so unlike the other cases that have been cited in this matter clearly there was a resolution on the merits and the resolution on the merits was in favor of the district so as the hearing officer decided what the south plains school district offered was an appropriate placement i would argue i think the contrary approach your honor in fact swift resolution of this whether on the merits or through a procedural defect it plays in favor of a speedy compelling here because there's been a determination on the merits of the ministry to level prejudice and i think this is a key issue council simply rely songs signing again on timings in id a case where we may potentially have to pay compensatory education i don't care if you're talking about twenty days sixty days or in this case three years after the original administrative hearing every day that goes by means hours that district would have to provide compensatory education i agree most of the case law is just discussed the mere having a lawsuit hanging over a litigants head is insufficient to show precious but none of those cases dealt with an i v a plane where every day like compound interest a potential compensatory education penalty is being built up against the district so i would argue here a month two months worth of delay that is extremely prejudicial but the crux here is the case i started to earlier and also your i should say that applying determinant in determining prejudice is not simply timing it's really  educational issues and i know that's not in the record judge but there's no evidence in the record that there was any kind of startlement negotiations and i can tell you because i was the attorney of the district court level as well there was no settlement we ought to go outside the record why don't i think you can rest on the fact that mr good's explanations were trying to resolve the educational issues there's no support in there showing that that was a good face settlement discussion telling you that was a matter of fact of the court's interested that there was no settlement discussions occurring at that time at all nor i so to that extent i think that it's distinguishable but as a matter of having a practical gloss on this case why would the court even address the underlying merits if there's the threshold issue of whether or not the original motions was it was an abuse of discretion and that really relates to the question you have for both michigan and i about well what's the remedy i think the remedy would be even if you could somehow find that there was some kind of error here would be to go back to the judge and say well first you know consider what you did you still find after looking at the five factors that you know you should grant the motion to file an amended again i think it's a matter of considering judicial resources why would you e order but we don't really need i think that would be entirely speculative your honor  mind reading here and i think that they elected to say this is important enough that we need to file i'm getting towards the end so i'm prejudiced i think you need to look at the reasons that i don't think the reasons were at all convincing here and moreover courts also look at how easy with this have been to remedy or avoid as i set forth in my briefing below even if even if council believe that there were some ongoing resolution or settlement which there wasn't a two page motion or call to meet again under the control rules things retched if these folks may figure things out and can you give me an extra two it's hard to imagine any less drastic sanction here that would address this prejudice issue to the district that's all i have the risk of prejudice to the defendants by the way if it's timing is of concern to them then the dismissal and then an appeal is certainly more prejudicial than allowing a few more days to amend in the us the court said the factor  just ignored it there was nothing in the record to help the court look at what the reason was and the court did apply the side factors therefore the first factor it has clearly does apply in this situation and the court