remanding the district court the timely and plausible state law discrimination claims there are three bits of the litigation history worth emphasizing first there was a two thousand and eleven case cite i'll defendant it cited two defects one jurisdictional defect and two limitation limitations bar and in response ruiz had filed a forty one and two requests for voluntary dismissal she  accepted that she failed to serve that there was no due generous fiction and there was no for the point in litigating the case she had to file under forty one and two because there was a pending motion by the defendant and so her absolute right under forty one anyone to have a dismissal without prejudice without a court order had been eclipsed did your client concede that the original claim was barred by the statute of limitations the original claim as filed was barred by the fashion limitations yes i did your client and she can said that she did not conceded at the in the district court kuhn our dismissed the complaints for two reasons one lack of personal jurisdiction and two and both of them it's in the order that your client conceded to the lack of personal journey six jurisdiction and then to the lack of stature that it was barred by the statute meant she was silent just the limitations bar she did ask for a continuance in order to address that issue the judge and she was well within her rights to amend at that point because in two thousand and eleven there was a two thousand and ten terminations claim she could have amended to include that twenty ten discrimination claim terminations claim however was pointless because she had failed to acquire jurisdiction over the defendant and so the case was moot at that point anyway and instead she decided to she realized she had to file a separate claim in order to address the two thousand and ten terminations action and further your  two years and two hundred sixty two days after she was terminated from employment and two years and eleven months after the employer mandated review program and grievance program had been adjudicated against and  assumption that she had conceded you know her claim was barred by the statute of limitations is i'm just trying to figure out if there's anything that can be fashioned around that would that error alone require reversal your question is whether judge could hours are required to reverse and then should silly on top of that because he just it looks like he just looked at the order and that was it and said oh it was dismissed with prejudice so that's the end terms that may be imposed with discretion the corporate discretion end under forty one and two where the forty one d prohibition starts which is that involuntary dismissal motions have to be have to be adjudicated following respect yes there are any legally important distinction to be drawn as to whether your client did or did not have can see that the statute of limitation i didn't say that she did but i just i'm not sure what difference it would make wherever she conceded into i'm not i think your point is well taken judge that as a matter of law when there's a mixed grounds for dismiss and one of the ground is want of jurisdiction that is essentially saying the court acquired no power over the litigants if they made if the court made findings about limitations those are simply advisory findings they're they're sort of like the court if there was no jurisdiction never acquired power to determine any settlement ordinarily if there had been no jurisdictional question if judge connor was just totally wrong about whether she had conceived it his really slightly different kind of no power as wages says first of all they were actually physically they are whether there was whether they were properly served or not and there they did engage on  question and moreover the lack of jurisdiction was you know kind of willful in the sense that it wasn't even a personal jurisdiction issue of the kind the the it was more procedural that person jurisdictions that you didn't serve them and tie not that you didn't serve all kinds of service that you could have served me just didn't serve well i think the reasoning of the restatement addresses your question and that is that because not a personal jurisdiction issue of you know international shoe kind where there was just not there to be served there was there to be served the grounds for dismissal cited by the defendant worked was twelve b two which is one of the grounds stated by the district court in the twenty levin case was lack jurisdiction on file serving five months after the commencement of the case would have been a useless act and would not have  yes not some inability to to a search or restriction of well i think there was a disability or an inability judge five months after the case was filed because that's too early there is no way to acquire jurisdiction if you don't file day and serves them and you would have had his limitations period problem that could have done it ms ruse in fact did exactly that she didn't do it next day she didn't next year she filed what would have that the amended pleading that she was allowed to file in the two thousand and eleven case she just filed it as a separate action because she had failed to acquire jurisdiction in the first action yes she could have done it the next day she could have amended in tw been dismissed twice and i think the beginning in the end as your honour's have suggested in your questions is to look at what happened in that first case and in particular i do want to address your questions about whether or not anything was conceded below in the statute with you doesn't make any difference doesn't it doesn't because judge who never had discretion mr leeds came to the court she did actually have the option to file under rule forty one eight one which would have allowed her to do this on her own without without invoking the court's discretion and the reason being is that the rule is actually worded that it's before an answer or a summary judgment motion neither of which had happened the defendants had at that point filed a rule twelve b six motion but all the authority including forty from this court says that that's not what that rules about it's about an answer or a summary judgment motion but instead mr ruiz and this is in the record at ninety seven  filed a voluntary motion to dismiss and in doing so she invoked the discretion of the district court of judge coon hour and with that and then what's really key here heresy of discretion to decide anything on the merits if there is no jurisdiction well here's the reason is that misrule he's filed her motion and in response to that motion on behalf of mr little a response was filed it said while the defendant doesn't object to the dismissal they have jacked to it being not filed not dismissed without with prejudice that needed to be dismissed with prejudice and that is in the record does that make it still a jurisdictional or a partially true i mean let's get to the that not apply here it doesn't apply for several reasons and first of all those those cases and the restatement in the comments are actually addressing both forty one b which is not what this was this was question i don't know why it matters if it's forty one a for you and b are anything else well here's why i think it does matter is that in response what mr little briefs in response to the plaintiff's motion was entirely about stature limitations as your honor pointed out in the questioning was that there's a there's a washington state statute that says to told a statue limitations you've got a file and then serve within ninety days and there was no dispute that that happened and where the statement into now or judge can hours decision comes from about the concession is that there was a motion filed by plaintive a brief filed by mr little that was entirely about the statue limitations not about jurisdiction it does flow from actually doesn't flow from jurisdiction it flows from the failure to serve once you miss that holding window then everything becomes time barred because it's as if your complaint was never commenced that's how the washington statute rules counsel counsel but regardless of what your answer to judge first are you aware of any case in which a court has looked at a mixed dismissal of that sort and wrong a distinction between lack of personal posing counsel has cited if you carefully look at those cases none are the same circumstances they are not voluntary dismissals they are not the situation is not the question i asked you though has any of those cases to your knowledge i didn't see this and so i'm asking if i've missed something did any of them draw a distinction between a dismissal for lack of subject matter jurisdiction plus some else versus lack of personal jurisdiction plus something you know that any of them make those two things come out differently no your honor and my point was that the bulk of those cases are actually subject matter jurisdiction cases there are a couple   several decisions from this court your honor starting with hargus versus foster three twelve f third four hundred four it's a two thousand and two decision that tells that says that rule forty one vest with the district court with it because otherwise it would lead to the absurd results that your your honour's are getting to this this case was dead on arrival when we removed it from state court to federal court and that's because of the tolling issue the failure of serve and by the way mr little still has not been served even with the second complaint so it would be find out about this but that how do you find how do you find out enough to know to in effect the second case it was actually served on the p d and the first case that was attempted to be served on mr little by giving it  to a person at the front desk of the p u d that's how we found out about it but that's not service but getting back to your your question your honor when judge to nowra was looking at this there was no way to fix it washington state act or not different and then why is this one not just instead it is and that's out but i gather it the reason is that there was a one year limitations pretty now there's a three a limitation and i'm wrong about that you know there were three and three always three and three look at every allegation in the second complaint which most of them are identical to the first complaint the allegations are actually and we've quoted it several times in the brief they're actually entirely about the course of performing the investigation mr little's course of performing yes it ended in a termination on june tenth but all of the alleged discriminatory acts had to take place before june tenth because that's the day that they issued its rumination ye terminations well except this this is not alleges a hostile work environment claim which the washington supreme court has said in and tony is that the that mr lee's site that they're only going to adopt that piece from morgan as limitations period you know race just common ation but they don't fire him until after the limitations period i e they have a meeting that before the limitation for you know we're going to fire this person question black and but they don't actually fire her until three hostile work environment claims we will adopt that procedure because it's the difference between a series of discriminatory acts and discrete acts and washington lot always said that for hostile work environments it was the series and had analyzed it differently and because of the morgan case the court said i don't think you need us as a novelist perry for a first for this sort of thing because the question is what was motivating the terminations and the rather is that mr and they're careful about it because they're they've made this admission about whether they can get to the ph d on the one thousand nine hundred three case so they've carefully pled the complaint to be about mr little's acts his acts that lead up to the termination but not the termination itself that that's how the complaint is actually pled in our view the complaint is not about the consequences of the term a nation it's the discriminatory act that lead up to that and your honor i do see a lot of time but i  would leave with back to the dismissal with prejudice and that's the young versus bishop case and the the language in that case is very telling because in that case the plaintive argued similar to here that she had the absolute right to dismiss and the court said but you invoked forty one eighty two and because you invoked forty one eighty two i get to look at what will be the result of this and i'm going to find based on the reasons that in that case anything else would be futile i'm going to dismiss with prejudice and this court affirmed that and the reasoning there is that what judge to an hour saw the reason why he says that word conceded is that the issue of statue and of limitations was brief in response to plaintiff zone motion and so judge who in our says well you've conceded you've actually admitted the failure to serve which means you can't fix this which means if you step back and think about it the concerted result is that she couldn't fix it then by filing the next day or serving mr little could she if she had the towing period already ran but what plaintiff asking you to do now is to fix it by waiting three years later and filing a new  time around it's not that she's getting a freebie if she in fact just found the same thing again well it goes back to whether it's really i mean it does say personal jurisdiction but you have to look at what was brief and it isn't i'm sorry there's no limitation well you know your opponent says there isn't somebody needs to decide that well i believe it's an her two thousand and thirteen claim two years and two hundred sixty two days after she was terminated i do want to say that we are asking the court only to remand the state law claims in only the state law discrimination claims there are federal defenses here that have really no application to the state law claims and reasons abandoning any question about remaining the federal claims she says simply wants to proceed under state law claims ok thank you very much and thank you both for your argument in ruins versus now homesh county public utility district number one and the cases submitted and we the next case maple versus cosco them in on the briefs will go to the following case which is craig versus coleman