i'm bored and i'm here on behalf of the appellant in this matter i'd like to start by st acknowledging that it really when you think about new mexico policy on this case i think what happened is we had the judge look at the policy and think about ways to limit it and i think he did so mainly in reliance he does reference this in his opinion on the conduct of myself and my partner in the texas case after the mistrial and that seems to have really given the judge some severe problems in this case and i think that in doing so and in focusing on that he missed what with clearly the established law and in mexico when it comes to looking at our thirty seven dollars deaths one death fourteen statute which is that it should be construed liberally and broadly and instead he wanted to narrow it of course there's also precedent that he didn't look at which was the foster versus the foster case that we've cited to in a brief and in that case of course judge vandy from the next record of appeals stated very clearly the policy for new mexico courts which is to construe that as broadly as possible in order to allow to get to a case on the merits and a judgment on the  one of the initiating attorneys along with my law partner at the time i can tell people that i'm going to write a short novel on this case when it's finally said and done about what a horror story it is kind of been procedurally and a quagmire and th e twists and turns of this as it were but well let's talk let's talk about your horror story you filed this lawsuit in texas correct that's correct john and then you filed a motion to change the venue to new mexico correct direction and then after it was in the th circuit the th circuit did what this circuit reversed judgment ride on the basis of his denial of the motion to dismiss and the reconsideration of the dismiss and then what did you then we turned around in approximately a month later filed the case here in new mexico the texas case had already ended so there was this circuit mandated dismissal without prejudice from judgment ride and he did it here to that end and dismissed the case without prejudice at that point and it was following that dismissal of the texas case that we initiated the new mexico case and what happened to hope i mean you're here w the case my point just were located in missouri and in california and at the time of the filing we understood that all of the defendants were in the north district or i'm sorry the north district of texas they were all located there they were all tracked the veterinarian for all practising there we thought that it made sense to avoid even arguing about a motion for non convex not to be convenient for him or whatever it might be that we just go in filing taxes upon a belief that that would be an adequate for the case we sent the cited that it didn't really work there that it certainly didn't appear and we did and there's been a lot of discussion about forum shopping that went back and forth that was discussed in front of the th and that is certainly something that's there but even if we had filed and if the judge allowed us to dismiss the case at the time this is a decision was reversed by that that we could then turn around and file back into mexico and that suffered no neither side suffered any amount of real legitimate prejudice we weren't allowed to do so we proceeded a little get the case as best we could given the limitations on the case and and that's a whole other issue that's really not before the court we got to the th circuit that this circuit agreed to it was an erroneous to an incorrect prosecution i think negligence implies that you're not paying attention or you're not pursuing it we did very adamantly pursue this case we've been all the way through the this got it reversed we've been very diligent which i would say is the  opposite of of negligence we've been very diligent in prosecuting this case so it sailed but it didn't fail for a negligent reason it failed for a variety of reasons none of which were that we weren't diligent in pursuing the case and there's a lot of a lot of discussion about what the word fail means in the briefing from both parties and i think that that's really what this turns on and ultimately what the district court or the district court when it arrives if they if you're going to construe the new mexico statute law i think you skipped a step  for the bits or even look at that because they were looking at his earlier judgment right earlier denial of the motion to dismiss and the motion for reconsideration after we agreed to pay the fees that were the condition proceeding to this missile that he had said we need to me he denied a motion to change venue we filed a motion to dismiss under rule forty one he denied the motion to dismiss and say that we failed to agree to pay all of the attorney says the other side we follow motion to reconsider of that decision just will never said we wouldn't pay the attorney's fees he dismissed it in spite of the fact we never said that so we filed a motion to reconsider saying by i will pay all of the attorney's fees and he denied that motion as well and that's what the district or the th circuit looked at in this case  granted that motion to reconsider then too they found that both of those those decisions by him were an abuse of discretion and then take the case and that's how we ended up here so what's that's happened and and we've done everything we whether the district is is that your claim is that the district court abused its discretion in denying you an equitable status of limitations is that your argument no argument is is two clean everything we whether we were entitled to the equitable still holding statute or we were to or or to the tolling statute or we were denied the equity of the court under equitable tolling principles that the statute of limitations should have been told he the equitable tolling cases and we pointed out that the th circuit itself had mentioned when they were discussing the case at argument that if something went awry here and they granted what had gone right here and they granted it help me out with this reliance on one of the th circuit judges hypothesize it argued that your honor i just pointed out as persuasive argument from the court itself a persuasive acknowledgment from the court rather i don't prejudice would be a functional equivalent of the case not having you distinguish that for me i can your honor and i do think that the heart of the distinguishment centers around and is discussed in the later decision of the foster case that we decided to i think that there the distinguishment is that how this case is dismissed is more akin to a federal court for instance dismissing for a lack of subject matter jurisdiction which is the what's discussed and in our our cited portion of the foster case where as a dismissal for some other type of reason we didn't just withdraw the case we actually asked for a motion and that that the end and attempted to go through out whether or not judge mcbride was going to allow us to leave texas and to dismiss our case we did file a placeholder case in new mexico that case never went anywhere it was never served it just sat as a placeholder d believing would trigger the saving state you write and that's in fact what every every case that i have found in oklahoma new mexico everywhere i work all of them uniformly position where we could prosecute that action tutor's fiction's it really couldn't have proceeded it's not really a case even though it was commenced we had already had an action open in texas we filed that's preserved any potential yeah no i understand that so so and if that's true your honor if we're going to apply that statute we're going to doesn't apply to a rd filing the the bottom line is that we were still barred by extraordinary circumstances and that's where equitable tolling we're arguing kicked in is that if that is true and the statute doesn't apply we couldn't have receded with any of these actions until we were finally released from texas by the fist circuit reversal of judgment right order and that's a period of about seven hundred days if you look at what equitable tolling applies it to to give us to file the new case when we're finally released from the state of texas so clearly there was nothing to prevent them from filing a lawsuit in the district of new mexico if that's where they want to be and and i understand that you can't have two pending at the same time and they went through the for whether it's one of prosecution but dismissal without prejudice there's been no still you're of underlines in which case the statute just does not apply and i think that's the situation we're in here where the statute just does not filed in the northern district of texas but the end result of that was that it was dismissed without prejudice ouster you know on trial that the that the plaintiffs if you look at the record appeared to intend to ultimately that case was dismissed without prejudice because the plaintiff after you know that's you know such a you know house of mirrors what would not be an exceptional circumstance for purposes  seventeen and dismissed and in two thousand and eighteen again without prejudice and in fact this this this raises another issue there was never ruled on by the district court but there really have been there wasn't any extraordinary circumstance to prevent the filing of that they did it once they certainly could have done it again before september nd two thousand  suit it's my contention doesn't apply at all because this suit filed in the northern review texas did not fail it proceeded in fact to a judgment that was reversed and found that it should have been smith there you know and i think the i think the reasoning isn't it now to be that it was negligent and it doesn't even have to be that for anything other then that if it was dismissed without prejudice much i'm trying to remember i know i saw some cases in preparing for this argument that relying on king that just say that a dismissal without prejudice is it you know that would have still been true that would have been the position that the defendants took had the nd case gone forward so that you would have been in then you would have been to texas well then you then you would have been proper in either state the the the the issue as q is could be into the parties but because all of the all of  of the case that might be