rather judgment graph of the circuit court abused her discretion when she denied the defendant's motion to dismiss or stay under seven thirty five  a stay of the circuit court case the fact of granting that stay would have prompted the court of claims to rule on our motion to dismiss which they failed to do when the case was before them now i respectfully disagree with the characterization of the court claims ruling as a stay what the order did that's the aug thirtieth two thousand and ten order was number one held the case in abeyance number two put it on its circuit court had jurisdiction and then it p twenty one of your brief it says that here is set forth in detail in the section two six thousand nine hundred eighty three motion to dismiss there was no operative legal order to which the trial court and have deferred jurisdiction anywhere in the world for this crime i would point out to you that the phrase used by most people is talking out of both sides of your mouth and that's not a good thing in a court of law is really a very bad thing haven't you agreed to that we to agree to that your honor oh really so when they say you refused to agree that jurisdiction lies in front of judge mcgrath and that's why you appealed it which would indicate you don't agree with them to life in fr another case pending before the court of claims and i understand your your honor's point about talking out both sides your mouth yes but we asked the court of claims to dismiss that case for lack of subject matter jurisdiction and they didn't do that under which he would dismiss the court of claims case without prejudice but his stipulation was loaded with other terms that we would not agree to he asked for an expedited trial date he asked for us to not file for years  discovery to be done and it's on the damages side of the case only and that's currently what's happening in the circuit court ok you are the reason that we believe judge your graph error is denying our motion to dismiss or stay rise in her application of the three part test under illinois law under these types of motions and there's a three part test you have your threshold factors you have the so called discretionary calendar and factors and we have a third that judge regret erred in her application of accounting factors and in failing to apply that third part of the task now with respect to the kalama factors around or just regret need not even have gotten there because all she needed to do was take a look and say well under these threshold factors there is an exact same case pending over in the court of claims and as this case but she had discretion to go it through those colored factors that's fine but she misapplied the first factor that that the court of claims basically reopened discovery in that for under its rule fifty five and under rule sixty of that form it contemplates that final decision shall be made in the court of claims after is remedy in another form so we're really just was the fact that the court of claims door is being kept open and most plaintiffs don't have to procedural doors open to them well it is in what you're trying to do if yeah that would be wrong to think that would occur oh yes rather because we have already raised that statute of limitations argument in the quote below the court rejected that argued judge were grafted and we did not appeal that well is it because it's not rather we then did not raise it as an affirmative defense in our answer which we filed after does work wrath did that so to us that issue is is gone and our concern now is just the fact that there are these two identical cases and we just don't think it's fair you want to point out that it's it's not fair for the plaintiff they have no form we don't think it's fair for the plaintiff to have two forms and that's what we're looking to avoid and you're right this case is had some procedural twists and turns and under four years and he hasn't had his just trying to avoid having to do that in the future we're just trying to get it wrapped up now so we don't have to do that later ok and your honor so i mention the comedy factor we also believe the treasury graph erred in her application of a second kellermann factor that being the multiplicity factor and here the judge abused her discretion in applying that factor because indeed there is another case pending across the street in the court  claims the third factor under color in which the court did not apply at all was the completeness of relief factor judge and look at that and we said that it was an error for her to do so because what that factor contemplates is well if the pla cannot secure complete relief in the foreign jurisdiction here that being the court claims that in the trial court maybe we ought to let plaintiff proceed in that form of the  know your honor she's not required to outline every single factor but it's because joshua graf was was very thorough in her discovery what she did discuss on the record she was very clear walking through what she did walk through but noticeably absent from the transcript was any consideration of that factor so we believe that because judge mcgrath did not take into account that complete relief is available to the plaintiff in both forms that factor therefore countenances in favor of granting defend its motion and  duplicative litigation that animates rule two six one night a three and judge would laugh again did not address that factor at all and in the kapoor case and other decisions of this court that three step analysis is framed as mandatory the head judge mcgrath properly consider that factor that's what we're doing is and not i mean that i would think that's the gist of the questions from the three of us is that that it should be the deciding factor that by coming up here you're wasting precious time you're depriving your tribe or effect from hearing the f police complaint his claim and so so he's suffering severe prejudice or you're in the state of door and shot his girlfriend in the head he's the first thing he said was he was defending her now he's an extremely inexperienced young already stuck with this very bad man they committed this horrific murder you on the other half an experience very intelligent person and you know where morning very heartened by the questions i'm hearing this morning shows that this court understands just like the court of claims just like the circuit court that the defendants here are using this two thousand and nine amendment to the whistleblower act to delay mr vanderhoof his case to try and overwhelm an unemployed plaintiff with uncompensated counsel by a barrage of briefs and motions and litigation and essentially trying to trap him in a procedural net in which no course court would be available to hear his claim and throughout the process of doing so as your honor rightfully identified they have been talking out of both sides of their mouth during one court to dismiss because there's no statute of limitations in the other court and telling the other court dismiss because there is a statute of limitations problem it is unfair it is unjust and after six years almost six years december two thousand and six mr vander who first filed this lawsuit is entitled to the trial that has been set on july sixteenth for judge mcgrath now whistleblower statute does provide that if you should prevail  be among the many possible prejudices that could occur if this court were to reverse the decision of the of the circuit courts the problem i don't know that it needs to be restated but the problem keeps popping up in addition to this is this lack of funding that they could come down the road if the court of claims is forced to go first which is what the defendants keep insisting should happen it creates this possible track where mr van stuck without any court to hear his case and that's not right i'd like to point out one other issue that comes up on this idea that this mystery who could lay return to the court of claims and there could be litigation down the road i think as this court has is rightly brought up at that point it be far easier to address the issues of duplicative litigation but we don't even need to go there because judge mcgrath in the exercise of continued good discretion made the parties when we came back on a subsequent date stipulate and mr vanderhoof he has stipulated there's a december nineteenth order that's been attached to our motion to dismiss the third issue as moot which is an order that if his claims in case number ten out of the circuit court case are resolved on the merits in the circuit court or just miss with prejudice pursuant to a settlement to which he has agreed he will voluntarily dismiss with prejudice all claims in the court of claims that particular case number there is absolutely no danger under these circumstances to this the university and the defendants that at the end of the case in the circuit court they're going to have to do anything other than waive this stipulation in the court of claims to force that case to be done there is no duplicative litigation that could happen down the road and happy to answer any other questions strongly disagree with that and as a number of reasons first of all my question is did they pursue discovery they did not have time or did you nothing has happened so to where you are is held in abeyance be cases held in abeyance the co recognize the state there has been no motions filed in the court of claims there's been no discovery in the court of things there have been no appearances in the court of claims the only thing i am aware of that has happened is that i am required once a year by april first to file a note saying please continue in advance we're still in the circuit court that is the only thing that has happened in the court of claims since the motion for reconsideration was denied on december twenty seventh of two thousand and ten into on december nineteenth and that was after that was after we filed menorahs for people after the appeal was fully grieved and i know that the parties actually tried amongst themselves to reach such a stipulation for a wrong time behind the scenes and it was only until the court heard mr manning distributor who need to do that that any such stipulation was entered that would have any effect but he just argued it for twenty minutes that that was your concern and a concern that apparently no longer exists and has not existed now for some three and a half months and i'm misreading it no your honor that we agree that that december nineteenth order does limit wherever it would happen back in the court of claims after the circuit court case proceeds all we're trying to do by keeping this appeal alive is to make sure that there isn't anything left uncovered by that we've got four defendants here and we're just making sure that there is no second form for any of the plaintiffs claims against any city agreed  dollars because i think that we're just making sure that there is nothing that is left on covered by that and i'm glad that your honor you feel so strongly about that and we hope that it applies