that i get that right you may begin when you're ready this court should reverse the district court because it was an abuse of discretion to dismiss mr will the arabs pro se complaint without first sue a spontaneous giving him an opportunity to amend there is no dispute in this case that mr will the absoute the wrong entity but there is also no dispute in this case that under the federal rules and under this court's precedent and bank the pet mr waldie ab could have amended his complaint to name the proper entity but when you look at that when you look at our precedent it seems to suggest that he has to there has to be some indication that he wants to amend this complaint and we don't have any indication of that in the record i would submit actually that the this court's precedent states the exception to one of the exceptions to bank is where the plaintiff clearly indicates she does not want to a mad and so that inverse inverts the actual exception which is that only when the court has clear indication that the plaintiff does not want to amend does the court not have to apply and  does not want to amend then the court does not have to give us to a spontaneous direction to amend occur and the case that bank refers to which is freelander of a man's for what clear indication that he does not want to  and freelander after hearing the judge told the plaintiff that he had sued the wrong defendant and the did and the plaintiffs agreed at the hearing with the judge and this case he was pro se and it looks like he didn't know that he had an opportunity to amend which is why you filed a notice of appeal rather than ask for an opportunity to amend this complaint that seems to be what worked what happened in quest and i think our precedent is a little unclear and so let's say let's say we accept your argument and we want to clarify are our pre but i think the rule as it stands is sufficient as this court said and bank citing two previous cases that the rule is still true citing to thomas at eight forty seven seven seven three this is still true where the plaintiff does not seek leave to amend until after the district court renders final judgement and start or vary the maze this court said even where the plaintiff never seeks to leave to amend in the district court but instead appeals the district court's dismissal and then this court and bank said if our president sartor and thomas leave any doubt of guarding the rule to be applied in the circuit we now dispel that doubt kalb county gets up here they're going to say the fact that he filed a notice of appeal was an indication that he didn't want to amend this complaint he just wanted to proceed with this notice of appeal it there's no indication in the record that he wanted them in this complaint he filed his complaint to be subject to cure by amendment and so when the court dismisses the action with prejudice there's no notice to the plaintiff that he could amend the complaint which is is of course proper i mean you are your counsel and i thought your position was that the laws already been settled in this area on this issue not the pro se defendant did the pro s not make the argument you're legitimately making yet and so for the first time this argument is being made and your position is that it's covered by santiago and and that we tiago is on all fours with this case we have a pro se teacher who filed suit under title seven she named the wrong defendant because she was confused by the intricacies of title seven pleading and was confused about who her employer was the district court dismissed granted summary judgment on her claims despite the fact that the defendant had raised that they were the not proper entity in their briefing in summary judgment once she got final judgment that the court said that's not the property entity and granted summary judgment on those grounds she appealed and mediately appealed that decision and this court said that immediate appeal of that final judgment was sufficient indication that she wanted to him and would have amended if she had been given the opportunity and the cow county when they get up here they're going to say there's other problems with this with this complaint other than the fact that he sued the wrong offender there's a time when those and they exhaust and issue why isn't well why doesn't futility come into play here  you can you put together a a complaint that will survive a two a b so it's a motion to dismiss i but i believe that is that is certainly possible and the standard bank is that when an amended complaint might claim he's entitled to one chance to replay that briefly on the exhaustion issue the cab argues that amendment to name the correct party would have been futile because mr will be abseiled to exhaust his administrative remedies that is not true both the magistrate judge and dekalb county concede that he has properly exhausted claims related to his june twenty fifth two thousand and fourteen terminations under title seven that w adverse employment action that could be actionable in this case is plaintiff's june twenty fifth two thousand and fourteen terminations from employment so those claims are clearly exhausted the magistrate judge then did say that he failed to plead sufficient facts about the term a nation but that failure to plead sufficient facts is also subject to amendment under banks bank itself was about the need for an amendment to allow the plaintiff to plead more specific factual allegations to allow the district court to determine whether or not a claim was stated that you were asking if we rule in your favor that the district court committed was simply that to instead of saying as he did the district court dismisses the action with prejudice that it should have instead said dismisses the action subject to plaintiff's right to reply to the complaint in fifteen days or ten days or twenty days that dismissal might have been appropriate but it should have been subject to leave to a dispute really the heart of the dispute is whether this court is required or whether that the court should permit mr wildey add to or whether the court should remand the case and compel the district court to allow him an opportunity amend his complaint as my client of course as the court correctly identified disagrees that mr while the ab expressed a willingness to amend his complaint he had multiple opportunities at several stages reading when he filed his objection to the are not are in new you point to that but then he basically says does that mean the local board of education is not accountable for the action and the board makes which is recommending hiring firing intimidating teachers who is accountable i contest the board of education should be accountable i mean doesn't it sound sort of confused your honor i understand that he he made that statement but it i believe that he was evincing his disagreement with the law in that sense because the district court subsequently entertained a motion for reconsideration from him after it adopted the are an hour in which he continued to say that the board should be held accountable and expressed the unfairness of not being able to sue the board and in that sense the district court in the shoes that it was in a fat time interpreted that not to present a possibility that he was confused but just to simply show his his disagreement with the fact that the board was not the entity capable of being sued the other the other issue i think is that he has had multiple opera had multiple opportunities  the problem with the or with with your position is we're still we still have this language and versus pitt which reads a more carefully drafted complaint might state a claim a plaintiff must be given at least  the problem though is the fact that the futility issue comes into play and i think that's the stronger issue you would agree with what judge wilson just said that that's all that needed to be done and that that controlling process in santiago but you would say in this case you just said he knew he had the right to do it from the record and he didn't want to do it while that was one basis correct yes your honor that was one basis i think that the unwillingness piece was one basis for the court not to give that instruction but i think the futility of the futility issues is even more compelling because how would the court know if he wasn't given an opportunity to amend his compline how how would  doesn't assert a claim but if he had been given the opportunity to a man we don't know whether he could have claimed well i think your honor can't the court can't ignore the fact that at this juncture he is represented by counsel and in his briefs filed by counsel they have presented a florid detailed factual narrative and stating that this is what an amended complaint could look like and still there's a futility that the court needs to to examine because there are still no facts i don't think it would change the outcome of the district court's finding a futility because there are no facts that tie that the june twenty and i'm not aware of any precedent that would that finds temporal proximity with a three year gap so with the detailed factual presentation of counsel from a very prominent appell litigation firm there is still no factual basis that would would that would change the the court's outcome below this the supreme court of the united states in delaware state college versus rx for forty nine u concerning a term nation that was not independently discriminatory they there's no fact in the record even even in the record before this war and this court has the benefit of hindsight and the benefit of a factual picture that that is presented and drafted by counsel there is no fact that would make an amended that would make an amended complaint serve any purpose the discriminatory the alleged discrimination is too remote from the termination happened in two thousand and eleven it's outside the there is no adverse action in the hundred eighty days prior to the filing of the charge other than his june twenty fifth twenty fourteen termination and that terminations is the only answer sack and it is too remote from the district court well that the the district court fully adopted the findings of the magistrate judge as the order of the court he fully adopted he incorporated that that all of those findings and conclusions of law into his into his order so so the magistrate judges the district court adopted so he fully reviewed every every finding of the magistrate judge and there's nothing nothing that says that he didn't fully agree with every every word in the magistrate judges are in are so on that basis the district court complied with all the requirements for review of a magistrate judge's decision and issued a full full order with full findings that that there was no no purpose to allowing him or instructing him to  amend and i think you know primarily will rest on our brief for our remainder the remainder of our argument but you know for these reasons we feel that the court should affirm the lower court's finding title seven is a statute that is the purpose of which is to encourage proper resolution of disputes it's now been four years since since he filed his charge of terminations or discrimination and two years since the original filing of the complaint there is no fact in the record before this court even with the brief submitted by counsel that suggests that there would be any actionable claim under title seven even if the court were to to return this case to the district court and reverse the court would be elevating form over substance to it to follow bank to to follow the the black letter rule of bank without considering that there is no fact even with the elegant narrative presented by his counsel that that would make this that would serve any purpose so for those reasons we asked this court to affirm thank you very much one course if you never been shocked in reading a supreme court opinion where at his new school was very brief and he claims that you know from the beginning they his administration did not agree with his professionalism so in the equitable tolling cases my understanding is that the tolling would occur if he if he was led to believe that there was no discrimination or retaliation happening but my but my understanding of the briefs filed by mr world is that he was dissatisfied with his treatment from the start of the three year period that he was in his most recent school so i would argue that equitable tolling does not apply in this case he would have had his claims from the time that he believed he was being discriminated against which was pretty much the entire time the entire three years that he was at stevenson high school so you know but in the absence of any facts that show that that normal criticism of his professional his professionalism i correct party changed the players that he believes were or should be held accountable you know the naming of the correct party is just one of the is the tip of the iceberg as we argue but he viewed his direct supervisors as the people who allegedly you know criticize him excessively so you know for those reasons i don't think that he was led to believe in any capacity that he was a strong you know that he was not being or he was led to believe that he was not being discriminated against if that's his theory and an amended complaint thank you very much  i would like to start by discussing the difference between banks standard for futility of an amended complaint versus what the cab's complaint or objection is to m the abs original complaint in st charles food this court said that futility is the legal conclusion that the complaint as amended would necessarily fail as amended we don't have an amended complaint in this case there is no proposed amended complaint yes there are facts and a narrative that i put in to the brief before this court that is not an amended complaint i have not had in depth discussions with my client about drafting an amended complaint in this case and in fact in bank the pitt this court had a proposed amended complaint attached to the briefing before it had not been submitted to the district court and this court declined to consider the proposed amended complaint ruling in its stead saying in footnote eight as a part of a supplemental brief filed at the request of this court the banks have filed a proposed amended complaint we are mere emphasizing that we are not granting the banks lead to a man we are merely saying that the district court should have done so indeed we have not even looked at the document filed we leave it to the district court to examined any amended complaint filed in that court and that is the job of the district court to review any amendment in this case to see whether or not an amendment would state a claim but that there was no finding of futility by the district judge in this case and therefore he needed to give the mr will the i have the chance all banks says is if you could plead more specific factual allegations we could plead more specific factual allegations about his termination we can plead more specific factual allegations about the retaliation and the causation between the the two thousand and eleven  yossi charge and the two thousand and fourteen dismissal and the georgia teacher's fair dismissal act which is interjected into the middle of that all of that could be replanted in a more carefully drafted complaint before the district court and banks that he was entitled to one chance to file that amended complaint to replay those allegations and because futility on exhaustion grounds is not an issue because we know there's no dispute that exhaustion is proper as the term a nation there's no futility on the factual allegation failure to state a claim because that's exactly what bank says he's entitled to amend and because there's was there was no clear indication by mr wall the ad that he didn't want to amend he was told by the district judge or by the magistrate judge that yes he should have named another party and then the magistrate judge went on to say but even if he had named the correct party i still would have dismissed it on these grounds that is not a clear instruction from the court to amend his complaint and so he didn't have anything to respond to he didn't have noticed that he could have amended the complaint and because neither of the exceptions in bank applies to these facts the rule of bank be paid controls and more carefully and the next place on the docket lauren hears from versus country club