element which was the dilatory tactics element had not been met we specifically pled in the at least five or six paragraphs of the complaint the dilatory tactics as well as the septa tactics on behalf of the defendant that we occasions is that correct in part in partner mark and the representations made to the court at the time that your second california action was filed and then order and requirements in going back to the michigan district court dismissed the case we went back to michigan the district court in michigan specifically head and i read from the decision the course restriction on the  three and at that point time the statue of limitations and run how much time elapsed between what happened in michigan and the filing in california the second one i believe six or seven months how many six or seven months are between the filing of california two and the planning of california three now between the filing in california two in the michigan courts determination and the michigan court determined determined and then when you do get right back to california within within the months and how long did it take you to file i believe i received a notice of the decision from the miss you can district court it's in my pleadings there i mean the papers have believe that was like two weeks after i received the order of the michigan district court decided that they were not going to respond to discovery that at the last minute attorney that my client had makes you can have a conflict of interest and then they stand big this is the same thing i raise that conflict point right after the litigation been pending for a year and a one point in time say we're not going to give you the discovery because your attorney in michigan has a conflict of interest and old by the way here's a motion for summary judgment the judge grants a motion for summary judgment because we have no opportunity to respond to it and that's the one that led to the judge saying if you want to  if you want you can take you can argue one road or the other with the second road you're taking the ball and heroes yes i don't like answer your question properly so the only quit the only point we're making here is in the fact that my client has not had an opportunity to proceed on of the case but for the argument to the district court that we needed to go back to michigan and then run all and then miss that lose the time that we're back in may she can't we would have been in the district court in california and we would have probably been done with the decision because when we get back to michigan the district court judge baucus says i never meant to say that you couldn't file it someplace else i just said if you ever want to file a count complaint back in this case but you're right when we're back here the underlying lawsuit was already dismissed so there is no count of complaint filed so what are you doing here in fact i went back to michigan kick and scream and i'm like i don't know what i'm doing here now in this case the defendant will argue before you that the decision by the district court back in michigan was a two part decision one was to dismiss or to deny the motion to reopen and i don't disagree with that i didn't have any basis to read out reopen the case at that point in time because the rule sixty b motion which allows me to reopen when you had already run and in fact tactics i believe we have seven or eight different paragraphs for example twenty five b b p disingenuously opposed things like that correct the other thing is that pointed out in my brief before this court your honor is that there's a line of cases in california that have indicated that  morning i want to start by number one saying we disagree that there were any dilatory accepted actions in this case but i'll put that aside for a minute because i think there's a more important focus the reason discussed in the complaint rather they're based on two things number one after the time that the second california action was dismissed which was an april two thousand dem sheff had another four and a half months in which they could have either they could have gone to michigan and final to a new action within the statute of limitations period period or not run until september i believe in two thousand waited seven months from the time the second california i'm sorry seven a half months from the time the second california action was dismissed and first to reopen the case in this again in december of two thousand that point the statue of limitations which they had every ability to file before running had already expired by three months second reason why they are in the position that they're in is that despite the fact that the michigan court dismissed the case with prejudiced with the condition that it could be refiled upon a showing of new evidence to the last three years to go by without offering any new evidence and in fact that is why the michigan court ultimately decided that they cannot open the ca i had not responded to the discovery and determined that there was insufficient evidence i guess to permit  to afford some dismissed it but sad if you want to come forward with some other evidence apparently that was dismissed without prejudice rest of the valley that's correct and they could come forward now  so what you are saying was then either in michigan or perhaps in california then he could have filed his complaint again  and did not do so that's correct and how how much time elapsed from map michigan decision and jailed california three was  michigan you argued that in the california district court we argued that in any event wherever it sought to refile they had to show that they had new evidence we also argued that they had to speak complaint in california three and we think there is no dispute that the representation of what that order said wasn't reasonable and certainly not  michigan order had every opportunity to reach the same conclusion that we did which was that in order to got the court to send it back to michigan because on a representation that the michigan court had reserved years addiction and anything to be filed had to be filed in michigan was that the ground that's correct we understood  second time around deciding not to reopen the case and refiling california three there their lack of diligence and the reason why the statute ran was because they waited seven months between california to and go into michigan to refile it sounds very much to me picking up tactics the record does not support this contention so it seems to me that she's getting into the record and making a decision one way or another as a matter of law and so this sounds to me that she jumped ahead and dealt with this as a matter summary judgment regardless of whether regardless of whether or not to be arguing the arguments that were brought by baby ballet in california to and the second michigan action were deceptive or deltora and we disagreed that they were regarding this there was no allegation in the in the and then that complaint that shows any causation it does not show that those condos act in any way prevented the present and prevent a death at the end of the following four and a half months from filing an ac its own on its own will fail to file within that four and a half months it was entirely in their control and there's no there's not even a factual allegation in the amended complaint that would suggest that the arguments made by my client in michigan two i'm sorry and california two and michigan two caused them not to be able to file within that four and a half months the ball into the line of cases is a situation in which there was no original action filed and it runs past the statute of limitation period and that is in part based on in bowl injury it was the number of continuances that were stopped by the i r s and based on those continuances better original action ran beyond the statute then that case was erroneous was dismissed there are he's there essentially arguing that we engaged in some kind of improper acts with respect to attaining the dismissal of california two and therefore the statute ran but that's plainly incorrect from the  california too was dismissed based on arguments there was another four and a half months for jim south to bring an action within michigan and in fact if they had based on the timing if they had brought an action in michigan whether they sought to reopen or they well pulling as a matter of law does not apply and there is no argument that that california three which is what is before the court was not filed within the statute limitations period so if equable tolling does not apply as a matter of law then clearly the statute of limitations has run and that the case is barred as a matter of law you have twenty five seconds to stop ok the other i would invite the court unfortunately i have twenty seconds to think it's a less important point because the we think commands the decision but if you look at the arguments that were made before the california to court and the michigan court there is no inconsistency then we made the same argument across the board with a reasonable interpretation that they had to  the michigan court based on bringing new evidence we never change that argument before the michigan court where you were wrong in the michigan court we were reasonable we had a reasonable misunderstanding reasonable misunderstanding yes thank you counsel which which lead to the problem was that i just have a few seconds i want to respond to your question i went back and looked at my files from the california three was filed within a couple of weeks of filing finding out about the michigan action also in response to his point which was we had three and a half to four months after california two was dismissed to go back to michigan and refile that's not true judge chance instead the complaint is that it's most appropriate to comply with the order of the court which meant that i had to go back to michigan file a motion to reopen i couldn't file a complaint i could have just seen what would have happened if i had filed a complaint michigan they would file a motion to dismiss because you hadn't filed a motion to reopen it and we were just being whipsawed all of them couldn't have done that the next week