can correct my pronunciation you agree with that yes it's shaken thank you your honor and i was going to open the door start your argument i want to know if you agree with that i agree that there is no rightness current status of the right musician you are in the city as stated our supplemental brief the city does not dispute that the claims the underlying dispute has now become right but the city does take the position that the st lawsuit on appeal in this case is not right and cannot be should not it cannot become like under the circumstances of this case despite the court's authority to consider post dismissal of the developments which in this case i believe doing so would essentially turn the final decision requirement for regulatory takings cases on its head or into a knowledge that i thought on that i want i think either one of you need repressive is where we are now with with rightness and why does it matter that we do anything with this particular case and just you would scenario can be a little challenging so you know we have we have guidance from the supreme court in the railway case that tells us that we focus on the rightness issue at the current time as opposed to when the dismissal decision was made to determine whether or not that particular suit should continue and the city makes a distinction about whether this future to continue or whether or not the dispute should continue that i don't think is a distinction recognized let me add why does it matter and i mean this is just how it works question everyone agrees the cost lawsuit to write the  lawsuit to that was i guess ended up with judge ellis and there's a motion to transfer the judge miller with the st case everyone sounds to me everyone agrees lawsuit two there's a right claim the king get to get to the merits and you'll either win or lose on the merits why is lawsuit two worse for you then reviving this lawsuit so lawsuit two is not better or worse lawsuit two is about to a set of claims that were not involved in lawsuit one and so they were file after and in accordance with the district court right now as consideration and denying us leave to amend it but this lawsuit was litigated in substantial part by judge miller who all parties agree should consider the issues in this case that he dismissed even if he also considers the issues in lawsuit number two in the republican or not i thought it was all about europe you know the denial of permits permits the the underlying claims that were dismissed in this case did not involve the takings question because judge miller did not allow the amendment that we proposed to bring those claims in the controversy to do something for you that and more and through all this mind opinion i'm not seeing the reason point i don't disagree with with with you judge and the concern that i have is that yes the city has taken a position over and over again that by not doing certain things we waive certain rights and claims i don't know and i tried to find out whether the city would take position that if we asserted those claims in a new lawsuit they were going to for problem of the district court said these claims are right i mean the clock and start running if it's not right he seemed the seem pretty obvious it and it just seems to me that all this is doing this appeal is causing delay for your client claims which i would think you'd want to move ahead in committee because the lawsuit choose been state and in this appeal if i were your client i want to move ahead and prove my claims i mean that no question about it i don't see how this is helping your client to have this delay well here your comments judge are helpful in that respect and it points out the frustration that we can't seem to get an agreement on the procedural approach to resolve all of these claims without some risk that you perceive either because the city want to greed or whatever else what is the risk of allowing just a nd case to go forward and just dropping this from well we'll have to move for leave to a consideration by judge miller of the substantive grounds for a dismissal motion that had been filed so we end up having to revisit potentially motions to dismiss a new and we start the entire litigation process from scratch whereas if we go back to judge miller in this case we have the case as we find it with the rulings that have previously been made and we either are permitted to join the the new claims that have been asserted in the new lawsuit or we're forced to litigate those in a separate process what do i want any substantive rulings i mean i you know i know there's a motion to transfer but  and i don't want to prejudge what jealous and i do than i i was on the district court in that in that district for normal rule is a related case will be transferred to the judge who had the st case but  that and the end the only other comic to make in response to the questions is that judge judge ellison appreciated the distinction between new claims that were not part of this case and the king claims that were in this case when he decided to state the case before him rather than transfer it because he was of the view that if in fact this suit was going to be revived then he would defer to  judge miller to determine whether or not to join the new suit into this case and to proceed with it and that procedural posture i mean is that what's driving this that you know i understand different lawyers prefer different judges i mean is strike i'm just trying to figure out what's driving this when you have the nd lawsuit we have been we have been attempting to have judge miller decide all of these disputes and believe he is the appropriate judge to do so  but but we were of the view that there's been some kind of a procedural you know game being played that may amount to form shopping may not i don't know but that is designed to delay the prosecution of the claims in this perspective which we think clearly at least the railroad cases you know would tell us should be litigated before judge miller now that the rightness question that led to the dismissal is resolved and so i don't know i don't know whether this is much ado about procedural nothing or whether it's preserving a right you know to litigate those claims without attack that has as yet to be asserted that would not exist but nd yes if i understand your question judge think that the answer from the city's perspective that it should be in the nd lawsuit now i'll tell you let me let me let me be further respond to your question by on back to your earlier question what is driving all this i believe our records council has has identified one issue which is a concern about limitations that has been raised in the past and i can tell you this in that nd lawsuit the city has not raised a d limitation of the fence the city has also not raised a rightness defense and in the city also about the twelve emotion where again it raised neither limitations nor rightness and by the way as was stated earlier i am skeptical of the reliance on a concern about limitations where the city has been arguing them for almost two years in this st lawsuit that the claims are not right so it so there was that  judicially a stop for now arguing statute of limitations because if they're not right the clock hasn't started i mean it's based i mean it's you're out you're on here i'll be surprised i don't make any concession but i but that's why the point is what we have done and not has been working on trying to figure out what claims to assert since they want everything about the st lawsuit and everything about the nd lawsuit is essentially an inverse condemnation dropped it and the last decision by judge miller in the st lawsuit also addressed the regulatory taking fine refused or denied leave to amend to add it because it is not right so it's all the council i won't i won't go on a tirade about the excessive amount of effort generated by multiple multiple amended pleadings and multiple rulings by the district court of belief or d opinions by judge miller what i will say is that the other thing driving this from the city's perspective which i hope is what which i believe is what really matters is jersey prudence on the final decision requirement of for a regulatory agency by now what i may be going beyond your question here and let me live it seems to me that putting those two together possible attorney's fees and your point about don't bring attorney's fees was unnecessary just an argument to be made but it seems to me isn't that how that i did well play out i believe up to the task whether or not the city has considered an argument about the excess nature the fees in the st lawsuit and that's definitely on our mind in terms of in terms of where we land making that argument whether it's whether it's revival of the st lawsuit which the city opposes or requiring the bank of to move forward with the nd lawsuit absolutely and i'm not suggesting that a decision by this court on the rightness issue would actually have a direct impact on the  revived i'm not i'm not expressing any opinion on whether or not that would be so what i am saying is that that is a nother motivating factor but for the city well for the plaintiff excuse me from the front from the city perspective time of appeal events can change doesn't mean the district court was wrong at all just a court may have been one hundred percent right when it rule a week how do you how do you get around that and i read your letter but it was what cased what's the best case you have san a quarter should not consider post district court developments when the appeals court assessors reitman's up here to be brutally honest with your honor about this i don't have one but what i have is this the distinction about the party control over the event required to arrive in the claim should matter and by the way i apologize for for not getting to this in the amount of time that we had from the request for the supplemental brief through the filing of it but since then i have taken a closer look an embarrassed to say it took me more time than i expected to find that right miller's  section cited in in it or its moreland's opinion but i found it and it led me to another section of miller's a discussion on line as which i think is extremely important the authors explain and address the significance of party control of contingency is required to ripen a claim for the most part admittedly the authors explain  mere control over that contingency should not ordinarily be enough to deny rightness and it goes through an explanation of a number of cases and a criticism of certain cases including supreme court cases where rightness was the night but the underlying the underlying point of this discussion and those cases is this where the party that plaintive in taking those d actions so for example there's a number of cases here for example that there's a case about a law d requiring registration for selective service for federal student financial aid and the court there ruled that requiring students to actually take an action like refusing a sunni like registering essentially eliminate their rights were disposed and two to the loss of financial aid and those things shouldn't be required in order to ride in the plan and there are a number of lawsuits like for example  the concern about by elation of a criminal law or other conduct that would potentially expose a plaintive to loss of their job these things are what underlie the decisions discussed in this chapter of the section right miller on rightness and they stand in stark contrast to this case i was actually at st surprised that i could not find a single case involving an absolute refusal by a plaintive to even attempt plied for a better answer otherwise utilize administrative procedures to challenge the nile of a permit i couldn't find it then i guess i overcame my surprise by thinking that that kind of  interaction and refusal is probably so uncommon that it might take me weeks or longer to find a case that would involve those circumstances here or one hundred and fifty four dollars days as what judge miller pointed to from minutes ago appeared suggested there was some kind of gamesmanship by the city and the city has done nothing more from day one then simply point out the final decision requirement the bail who had been making here yes i would like to respond i absolutely understand that perspective and the sentiment of the place specular making that point but i believe i believe it would be more discovery has been conducted in the st list in the st lawsuit the city has no no dispute with utilizing that discovery in the nd lawsuit i'm not sure that there's any other concern that the  from their perspective about why it should not be required to move forward with that nd lawsuit given that we are only we are here today only because of its own actions are really in action but i believe that the pro result needs to be a state the extra time i'll try to be brief number one i just want to make an observation which is in the new lawsuit which does not include the claims that were dismissed in the st lawsuit that is now before the court there hasn't been an answer  filed by the city so the idea that they haven't asserted any defenses including the limitations defense and cetera is a bit of a of a of a distraction in that they haven't been called upon to file any defenses  yet they have filed a motion to dismiss that claim that motion to dismiss doesn't address the claims that are at issue in this lawsuit and they have taken the position that judge miller should what i'm saying is i do want judge miller to hear the case we have had a lot of time a lot of money invested in reaching the point that we reached with judge miller we asserted and in that in that in so in effect what we're saying is that you said the city for if i understood you correctly you said the city is asking judge ellison to transfer to judge miller so that it seems like you would agree to that yes i would agree to it the problem the problem that i have this is that the argument for the transfer ok is that there's been a new lawsuit that relates to a st filed suit ok which can only be transferred in consolidated if the st filed suit is pending and so the end the concern here is this you can up i i just you can transfer a new case to a judge even without consolidating and that's what the whole point of related case notices is about and i reckon i'll represent to your honor that when we filed a new lawsuit asserting different claims we complied with the local requirements saying this is a related case and so the way it works i was telling the way it works the clerk's office is never going to make that determination because they're not the judge so they had they assigned it to as any cases randomly to a judge but the point of having that notice or related case you file is that will then prompts the risk of the judge who receives that new case usually to consider whether to transfer it to the other judge usually in consultation we determine whether or not this case was restored ok at which time he would then defer to judge miller as to whether he wanted to take a new case in either as a transfer or to consolidate it and here's the ultimate issue here we are in we challenge those rightness decisions ok we demonstrated to the court a that we believe that it was futile to go through that process and b that the process was not itself even available to deal with what it was we were challenging in the lawsuit and we  get into all of that in terms of correctness or not and whether the decision to require us to go through that appellate process was error or not but we don't really need to get there in order to decide the appeal because as your honor has previously recognized the the existing law in the railway case in particular and the couple of cases that this court has decided has set forth in that question requiring supplemental briefing allow for us to look at whether or not it's right now the claims are right now and whether they should resume in the court from where they were dismissed and so your honor asked mr daley own are you aware of any authority that says we can't do that is the answer was no ok is only answer is what you waited they waited four hundred and fifty something days to go through this process that they should have gone through earlier well we don't believe we should have gone through that process we believe that if we had gone through that process ok we would have to waive certain rights and certain claims and it require a ruling that the district court below took four hundred and twenty dollars days of that four hundred and seventy dollars days or whatever it was to to to to make to recognise rightness now is there some mandatory decision that if it is right now we must revive the case already either way and if not just give me your reaction to that now i think in previously allows the court to decide the peel ok and it and to instead of determining the correctness of the rightness dismissal in and of itself to simply procedurally remand it for further proceedings now that the right decision is no longer in question and so it is discretionary now if the court chooses also to to evaluate the correctness of the rightness ruling to begin with you know a stain on our briefs and you know including the fact that you know we don't have the proper one thousand of the city's code of ordinance is provides for let alone requires an appeal of a decision to deny permits made by the mayor in contrast to a staff member in a political format as opposed to an administrator of format and consequently we think the courts finding that the claims that we have asserted were not right given what those claims involve which was not a decision made in accordance with chapter nineteen but rather in accordance with some on authorised may or only and date which was final  terms of of the standard of review but does this court have the discretion to remand the case without determining the correctness decision based on the existence of rightness now i believe the court can do so i believe the court should do so but the court is not required to do so anything else force a stand on on our briefing with regard to the correctness of the right mists missile to begin with but i hope by the answer the court