good morning my name is larry bird land i represent plaintiffs appellants in this matter like two hours or two minutes if i'm able that's for thank you judge logan below made his decision his exercise of discretion in this case based at least in part according to his order on his belief that we'd had certain exchanges at the hearing on june twenty second twenty sixteen the discovery hearing as he says he did in this case should be sent back t those discussions some of those discussions never took place as demonstrated so clearly by the transcript in particular he states that he warned plaintiff  that he was considering dismissal of the case and that that was a possibility if there were further delays he never said anything like it the topic was not brought up at that hearing  a warning isn't necessarily required particularly when there is a notice motion to dismiss which was the case in this case right so that in my eyes and says it rejected a warning requirement when it was a notice motion to  dismiss i'm sorry i'm not following you in terms of the order of events on june twenty second the the court in its in its order of dismissal indicates that on june twenty second it gave a warning it did not the court also came to any second day what was the purpose of that date it was a discovery motion your honor to compel discovery and i was ordered to  provide certain responses within two days which i did hear been the most was there it was a motion to dismiss on calendar that day no sir when was the motion to dismiss let me ask you also i was a little bit if i may judge on aizen that you've brought up in this context i didn't was a nine year old case and when it was dismissed there had been no action in it for four years the point of my contact of the point of my comment in this particular context is not whether the law actually requires the warning it is one of the factors to be considered but in this indeed done something that he will what i respect he didn't do in what other respects to judge logan abused his discretion in dismissing this case with prejudice  the same order the dismissal order he indicates that on june june twenty second that he had asked me as plaintiff's counsel whether i was essentially good to go in the case and indicated that i had responded that i was fit and able and would would move the case forward expeditiously that is false what the transcript reflects is that i responded to the judge that i second i indicated that i would discuss it with the guardian ad litum and make a decision it's in this context the defendants had asked for a sixty day extension they will probably tell you that they wanted the sixty day extension because i had delayed because plaintiffs had delayed in responding to discovery while there is some truth to that in fact it is also true  one of the defendants discovery wasn't even the responses to that discovery wasn't even do yet and and that defendant was asking for an additional sixty days because assuming plaintiff's timely response to that discovery which they did get they still wouldn't have any time keep in mind your honor this goes back to the initial case management order and the initial joint report for case management in which all counsel agreed to we would need until november thirtieth of twenty sixteen to complete discovery and because of the comply city and volume of the records in this case and well advice for example in the joint report the council would need until the end of may to produce the records again explaining the the volume and complexity in their importance in this particular case the judge threw that he did it with he vacated the case management conference that he had set after he received all of councils joint report and proposed schedule vacated the scheduling conference and put in a schedule that it's as if it was in a different case it was there are reason given for that or no sir well i should say this and this is in the context of my my position that the management of this case was fouled up from the beginning in the court's order that we submit the case that we have conduct the the joint conference  and submit the joint report and proposed schedule in the in the courts boilerplate he states that that particular court had a strict policy of not allowing any more than two years from the initiation of the case to dispositive motions and it appears in throwing out the joint report of all counsel that what the court did was to reverse engineer from that to your date  d and that ignores at least two important factors one is the case was removed from state court to federal court i believe in february of two thousand and sixteen between february of tw sixteen and october of two thousand and sixteen the complaint was amended because of the appointment of the guardian ad litem the guardian ad litem was appointed also one of the defendants was the wrong defendant we had to  the court ignored the advice of all counsel and and did not even consult canceling the the conference thank you has a specific question directed towards the state or tongue and i will take all of the oral argument today there is this case is about an abuse of discretion and judge logan to the court below had two options for dismissing this case failure to prosecute  henderson factors as as interpreted by the defendants in using the eyes and case and the defendants are the plaintiffs rather willful failure to attend their depositions and in the case of minor ag his willful failure to attend his independent psychological exam well if it was just for the discovery dispute he could have said i'm ordering you to appear for your deposition that i'm ordering or to appear for your independent counsel table examination and if you don't appear you know impose monetary sanctions whatever doesn't really seem to be what bothered him your honor absolutely right that's not what bothered him what bothered him as as he identified in his order that the case had been pending for nearly two years and no significant discovery had been taken no complete discovery responses have been issues no depositions have been taken no expert w why was a dismissal with prejudice war and under those circumstance because there had been actual prejudice had then there had been some discovery right written discovery and there had been written discovery or there had been initial disclosures had been exchanged and mr berlin is correct this was a document intensive case there were several thousand pages worth of documents that both sides were obligated to review but the point is is that the know when the when the joint statman when the joint reports were presented to the court about you know how things should unfold in the litigation was a little bit different to what the district court actually did correct logan prefers in his courtroom not to allow the two year anniversary of the case to pass before dispositive motions are on file with us and present two years your honor i to be honest with you i'm i'm not sure what's so sacrosanct about that but it was important to judge logan and it was an obligation that he imposed on both parties it was equally applicable to the defendants as it was to the plaintiffs and importantly he warned us in his papers he said i treat this data sacred and i expect you to plan your litigation activities accordingly so that you can meet it and with regard to that he made very clear during in entering his schedule in order that fact discovery would not be extended beyond july fifteen and the expert discovery would not be extended beyond october thirty one i'm sorry september thirty and so when we stood in front of him and during the june twenty second hearing he ask he ask can you proceed in this case and mr berlin identified during that hearing several factors and as he articulated in his argument here today he identified that he wasn't sure whether he could proceed the court then denied the sixty day request that admitted we all parties had had filed and the court also made very clear during the hearing that he expected the current deadlines to stand right at the end of that hearing mr burley and ask for the mercy of the court for an additional week to be able to produce the discovery responses and the court said no in phatic lee and that was the tone and tenor of that hearing that in itself a sort of i don't know abrupt or borderline arbitrary no your turn let me tell you why what's important about that hearing is we were there on a motion to compel mr berlin's written discovery responses at the point when we had you know the lawyer had all kinds of issues right view raised with you about auto accident auto accident probably their problems i mean there were there were some issues that had been raised now there were some issues they'd been raised you're you're absolutely correct but again the deadlines were important to judge logan he had made it clear that clear to us and had had indicated that he was not going to extend them and so we were there on a motion to compel despite mr bruins personal problems and practice difficulties because we needed those documents as defendants we needed depositions on calendars defendant because we had an obligation to defend our clients and we would we were facing very real prejudice because we hadn't had the opportunity to test mr berlin's client's damages we hadn't had the opportunity to see any expert reports or printing that ended june twenty second hearing and it ended with a very clear understanding with all the parties that we needed to meet the current deadlines that were in place that with what were the pending that the most immediate pending deadline was the fact discovery cutoff which at that point was july fifteenth it was so important your honor that the very next day june twenty third all of the parties including mr berlin and the guardian ad litem for the minor plaintiff in this case  set all of the depositions and where they they were set in fact the plaintiff's depositions were noticed for the second time that same day by myself about a week later mr berlin noticed several depositions for the state plaintiffs i'm sorry for the state defendants witness the witnesses who were involved in in the underlying action while the defendants appeared for the depositions of the plaintiffs  berlind ultimately vacated the depositions of the state defendants but the point your honour's is that after that hearing there was no question that the judge's order was going to be in force a judge drastic sanctions where we where we discussed for europe for the for judge logan the other possibilities that existed those possibilities raised to our papers were barring the plaintiffs for striking the pla in complete discovery responses barring the plaintiffs from presenting any expert testimony at trial and awarding the defendants money damages for the costs incurred to prepare their expert and for the costs incurred for for  the failed depositions that didn't go forward now judge logan we also presented to judge logan though the fact that two out of those three options actually hurt the defendants and caused us further prejudice if there's incomplete discovery responses we don't have the ability to repair our defenses if there's no experts allowed on the plaintiff's behalf the functional equivalent is the same the plaintiff raised in his in his complaint and in his initial disclosures and then in his incomplete discovery responses the need for defense for expert testimony to establish a standard of care and to establish his damages he did that repeatedly especially in his incomplete discovery responses which are in the supplemental excerpts of record y the this court remands will see again in eighteen months because we will file a motion for summary judgment down below i'm i'm sure the plaintiffs will appeal and we'll be back here before you arguing why the motion for summary judgment shouldn't have been granted so and we as defendants acknowledging and understand that that was a possibility however because there was no significant discovery in this case we chose to pursue a motion did is there any sense that he attempted in any way to accommodate counsel's personal physical injuries that he was a stain and his representation that he was just wanted to shut down his practice he couldn't really function of the lawyer anymore just too much your honor what role does the court have when they're confronted with situation i see that i only have ten secretary mcnamara answer and then ok that's fine i do believe that the court has an obligation to consider mr berlin and difficulties in the difficulties that he had and i think the judge logan did that here and there's language in his order that identifies that he he considered the reasons that judge that mr berlin gave and that he found those reasons lacking the idea that the defendants were prejudiced here would have been is a sham the joint report of all counsel called for the discovery completion date of november and sixteen by then the case had been dismissed for failure to prosecute if it indeed the defense did not believe they too needed that time and that they would be prejudiced by that time then they wouldn't have put it in the joint report and they wouldn't have specifically filed no objection to point to plaintiff's motion for a stay on on july fifth they file their no objection the next day that issue once we find out if mr berlin can comply with the court's order that was the two days to respond berlin complied the court never came back to it and two weeks later i filed a motion for stay again proceeding no objection  problem of course is finding competent counsel to take over the case if the case is remanded that should not be a problem under the circumstances at the time it was a problem because nobody wanted to come into a case