problematic and we contained her error first i want to note that the primary concern of this time is the actual dismissal as opposed to the criteria required for the appointment or the judicial approval of the l not obtain any form to dish approval before doing that we did believe and we filed papers in this regard that specifically with regard to the particulars of this case is that those action is brought by foreign nationals even probative we didn't believe in that because those those requires that the court make allocation of the recovery but i think the records are somewhat belies what you're saying here because it seems that there were repeated  discussions that you needed to get personal representatives and you know the appointments and it seems for repair reading of the record that you understood that that had to happen through stay court and so i can see why the district court was somewhat frustrated throughout the course of this litigation especially at the end when she found out that you hadn't done that and there was sort of a representation that was already taken care of for that last amended complaint so i'm trying to figure out and this is your opportunity to tell me how you didn't know that the personal representative portman had to take place i mean it seems like you had knowledge to the district court before the last amended complaint or at the last man to complain that that had been taken care of and it various agreements were made it was understood that it seems like you were going forward but you hadn't done a critical piece here and there and a very simple basic piece of and you know extremely important piece of the litigation  court makes it clear that you must have a person representative appointed under does that correct there wasn't a specific issue under that rule but part of the go through requirements that the person represent was required but that was on september seventh twenty let's correct it is correct ok then you don't file a motion to appoint anyone as a personal representative until july first two thousand and thirteen is that correct also ok so that's almost two years that's correct so even if you thought you could do it in federal court as opposed to state court i'm trying to understand i think this is probably judgment yes question two years and in fact a year after the statue limitations expired why does it take two years to fi that that's why the there's an appointment a personal representative takes place at the very beginning they know from the very beginning of this case especially since we filed on behalf of all the years of state court who exactly the year were secondly filed in their papers was a letter from clyde company in france that went through every plaintiff in the case and determine who had personal representatives were and whether or not states states had been established or not so they perform some investigation in cases of also talked about wherever w when the fact that the fence wait as long as they did to raise the issue of it would you know if you could just tell me was it too hard to get the appointments over at stake or is that what you're saying or are you just saying was a rule we didn't really think was that important not there was important but not that it was time sensitive to us that the case moving forward was more important despite the repeated nature of the times it came up and we were told that that needed to  the criteria goes down the prejudice there's no prejudice in this case the defense knew entirely the entire time who the parties were who the years were we asked the court for the reasonable amount of time so many  of the court could not do it itself to allow us the reason amount of time we presented that amount of time to the court take three to four months at which time the case we continue to move forward there was going to be an isolated therefore not a question came up before the district court at the hearing on the defendant's motion to dismiss whether the plaintiffs may pursue their actions or relief in foreign courts is that happening is it's my understanding correct that nearly all of the plaintiffs have actions pending abroad there were actions pending in in france a criminal procedure to takes place after an aviation action action there that has been resolved the cases of sold or are settling there for a number of plaintiffs involved in that case i would note also i meant to say this really there's also a companion case now pending in the same district court same accident thing flight for additional passengers of the plane it was brought under the coleman law which  i don't know a lengthy statute mutations period eleven bring it in there you see delayed is excused or prejudice and delay is not shouldn't be the big issue have you gotten person obtain personal representative appointments for the dissidents here's what we've done is we devised a courtly we'd like to do that we asked for the time to do that and then some to have you done and to this day what have you done with respect to that up to this point today the counseling can do a good in place is a very didn't make sense to do when we went to the district court asked at that point time we did ask for was three to four months which probably counsel advise us it would take to get it done that's still in place we still believe that's a valid period of time so under rule seventeen  a there had to be an objection made specifically to completely quite honestly there never was an objection raising it before the complaint was even filed as a preemptive strike that we deem is not an appropriate objection that had once been made earlier we could continue to move forward as it was at the time dismissed and so is it your are you thinking are you expect the district court to simply substitute the parties if that's how this plays out the way you would like for it to simming you were able to obtain these proper appointments or would you have to show good cause under rule sixteen at this point to amend the district court's scheduling order  suggest that once we have teen judicial appointment of the person representatives they would then be substituted in for the named plaintiffs in the arizona case the beneficiaries in the case do not change the claims do not change the arguments you know  please the court christopher bar them behalf of the appellee internationally as finance corporation at the heart of this appeal is really opponents inexcusable compliance with the clear statutory requirements in the death on the high seas act contrary to what you've heard i would see has continually objected on the grounds of noncompliance with the act since their first involvement in this case in fact that was the basis for the court's district court's two thousand and eleven order agreeing with isle of c's objections but giving the appellant's the time that they had sought to leave to amend their complaint comply by having personal representatives appointed and yet they chose to do not not to do so but they made the representation within twenty days of that order that in fact they had complied by filing their second amended complaint which said it was filed as personal representatives well aila see as a defendant in the case had no basis to challenge that assertion at that point and so we accepted as true what they filed with the court under rule eleven that that was a proper assertion they pretended with both the second amended complaint and third amended complaint to have complied with the court's two thousand and eleven order it wasn't until two thousand and thirteen when we issued discovery asking for the appellants to disclose to us the court's the documents proving the appointment that suddenly we see then within a short period of time after they answer that discovery their motion to amend and within a few days i love sees motion for summary judgment on the basis that they had not complied with the court's two thousand and thirteen order and thirteen order really sets forth three unimpeachable grounds upon which the court granted summary judgment in favor of vial of c the first is the probate exception is the court has already recognized what plaint what the opponents were asking for and they're saying they were missed mistakenly thinking that the judge in the district court could grant that sort of relief the point of personal representatives what's your response to my response that your honor is very basic that had they simply done their own research they would have clearly seen that the probate exception would bar the court because the court doesn't have federal jurisdiction to actually perform what they're asking for and they continually characterize what they were asking as a an appointment as a dos a personal representative that doesn't exist under the statute there is no section of dose of that provides for the appointment of a personal representative so because dosa silent on that we look to state court provisions which is the california probate co an excusable mistake and that's where when you're looking at relation back and real party in interest they have to show an excusable mistake in what they did and here there was no excusable mistake prejudice yes we are you're out of the prejudice was this first of all i'll say has been defending this case against phantom parties for going on six years now and in fact one of the most significant aspects of prejudice in this as grounds asking the court to send the case to france the appellant's made assertions and representations about how they would bring evidence into the united states and that basis the court should deny the form one convenience motion  in that it found that the court that i o c had incurred substantial sums in defending the case which is a prejudice that cannot be cured and also the court looked at the fact that of the f and c the form not convenience issue that we had raised this as a motion to dismiss and it was opposed by basically nonparty and that on that basis on their representations that motion was denied now that is motion is not subject to this appeal but it i s a focus point for purposes of showing i would see his son has suffered real prejudice as a result of the context so it's but it's basically the cost of litigating up to this point well and the other problem we have here is well no it's more than not it's the cost of litigation it's the fact that we lost a significant motion which we believe was properly grounded in u s law and called for the transfer this case to france where support has already noted these parents have had actions pending in france in the commerce against the airline and have secured judgment from the airline so is our position it would have been more cost effective and and likely would have resulted in those these cases here today before the court being yemenia for at least the french actions there are judgments against the euro line now these are cases filed under international treaties the warsaw convention montreal convention so i don't know the exact basis for those judgments as i stand here today but i do know that there are final judgments and that the claimants in those actions are pursuing recovery of those judgments from the airline how that what the process is and where it stands today i do not have that information for  me that the second basis i think which are the core to really pits look at is the district court's analysis of the california probate court so even if you get past the probate exception there's been a complete noncompliance by  appellants or any proffer of evidence in this case that they could comply with the various listings of specific requirements that apply to securing a personal representative appointment before california probate court and what's interesting is that those requirements are even more specific when you're dealing with foreign nationals who are seeking to be appointed person representatives and especially when there is no will involve we detail those in our titian your honor we agree very thorough well thought out i do have the references during the oral argument where the issue was raised i unfortunately don't have it at my fingertips exactly where in the decision  going back to the specific requirements under the california probate code some of the things that the parents would need to do or include they must provide a copy of the will and if it's not in english have a translator we haven't seen that here they must file a statement of personal residence and execute an oath saying that they will fulfill the duties in line deliveries of the office a personal representative we don't have that here nonresidents must petition for an ancillary probate administration what's important about that is ancillary probate administration in the state of california presumes that there's a primary probate action pending elsewhere we've seen nothing to that effect and that's what the klein and co letter advised that says that there was no information indicating probate actions were open outside the united states or is it as a result of those french income orian actions but one of the key points too is for non residents of foreign countries who do not possess a will under eighty one thirteen they must give diplomatic and cons notice we don't have any indication in the record whatsoever of compliance with any of these requirements and the whole purpose is so that all these claims that we see here today can be consolidated into one personal representative so that i live see as the defendant knows once there is finality as to whatever claims are presented by that personal representative but that will have raised judicata facts going forward as to any claimants trying to claim through that particular deceit ins and we've encountered that in these cases where we have multiple multiple family members including extended family members as who are part of the case today who under the death on the high seas act are not lineal family members and therefore under the act or non title the claim in the absence of their showing a financial reliance on the deceit it so these are all for the protection of aila c and the third point the court raise really addresses the the heart of the opponent's appeal and that's the relation back issue and again opponents must show that there was an honest mistake in what they did initially and in order for there to be a relation back the problem is we don't see that here we also don't get relation back to because there's no party to whom we can relate back to the original action filed in two thousand and ten was on behalf of one family it was not even in the capacity of an alleged personal representative that didn't come until the second amended complaint after the court's two thousand and eleven or so what we had was really your original complaint was a knowledge it was filed by a party who had no ability to file that claim under the death on the high seas act and as a result there's no ability here to relate back what a pouncer asking this court to do in reversing the district court's very thorough and well thought out decision it's also amazing that when you look at it is the court is noted from two thousand and one to two thousand and thirteen there is nothing preventing the appellant's from going into state court and securing our finally probate actions to s personal representative appointments we've had no real explanation as to why and what but what they're asking the court to do now is to read into doses clear language in contravention of congressional intent an exception that if it's too expensive you don't need to comply so we've heard that the cost would be about fifty thousand dollars well what that indicates is there's a lack of willingness to invest in their own case big cases sometimes cost a lot of money to get going clearly here we don't hear you know the brown case when this issue really isn't so much about the lawyers it's really about a question of a lot of people who weigh a very seriously damage nantucket there's two companion cases in that the first case you see the district court dismissing the case against the plaintiff mohammed on the exact same basis we have here today that he filed claiming to be a personal representative in fact was not mohamed then turns around and susa his lawyer for malpractise and that's mohamed versus donald j no and what's interesting about those two cases is that in the second case the eastern district in new york said basically you plaintiffs chose your lawyer whatever the lawyer does on your behalf whether it's proper or not is you have to deal with that that's your decision you selected that lawyer if they're negligent in how they handle your case that is basically your issue that's not the issue for the defendant against whom you file these claims and i would submit your honor that's what we have here today without really getting into the issues of what the lawyers did my point is we know what they did in relation to what the requirements were under the death on the high seas act and they failed to comply with the acts very clear requirements of pursuing actions as personal representatives and so on that with regard to prejudice we see highlighted as a significant issue in this case there was no one shown in the lower court at the hearing on the motions counsel was asked what the credit is was there was one single instance where name was incorrectly placed it's assuming that there would be understood that they have the right to proceed unless there is some prejudice to can be shown there is quite frankly none in this case law in those two cases you and the other one i can't remember what you just said or what was the reason for the delay was it the lawyer not proceeding in filing these kind of appointments or what was the reason for the delay there was a number of different that because the case is dismissed they do no harm financially that's not how we evaluate prejudice we value prejudices would prejudice was the red time and if amendment was allowed would they be prejudiced or the opposite is true because i guess i'm still trying to understand maybe there was a mistake here he thought you could do it in federal court nice day court fine but it's that timeline july twentieth levon to june two thousand and thirteen no actions are taken to do what the court and what apparently in your complaint your virtue had done so based on that how is that an excusable mistake and a rule seventeen well under rule seventeen is it doesn't talk about excusable mistakes talked about honest mistakes were w in your honor as well and weak knowledge that however it wasn't disregard for right we did eventually come up with a procedure to take that and have come up with the ability to sure that defect and allow these parties to continue for last point i want to make a waiver is the only defense in this case in cases of just reversed dismissal based on waiver only affirmative defense is insufficient under nine eight as federal rules it must be a must be a specific statement as to what the defense is in this case the only from the defense is that the parties plaintive lack the capacity there's no specific statement in there the case of strock s r o c k vs us two thousand and six within the meaning of rule nine a especially where plaintiff sousa's a personal representative and this is a matter of public record easily ascertainable so this case could be deemed as a waiver because there was no defense for there was count council became unavailable for quite some time causing communication problems with the