afternoon may please the court the name is harvey sanders and i represent rose and you jack and i'm here today because ms payne jack should have the opportunity to have our case heard on the merits this is a case in which the equal employment opportunity commission found reasonable cause to believe that the employer in question had not engaged in the appropriate interactive process to determine whether or not her disability commentated and the only reason that we're here is because of a deficiency in the service of the summons and complaint and under rule for there are two ways in which it could be justified to have an extension of time to serve one would be as if there was good cause and then if there is not good cause then the course to engage and equitable balancing task is the pot of cases the is the political case in question there and here there's no question that we met three out of  four criteria there's no question that the statue of limitations here would bar the action if it were refiled there's no question that the defendant had actual nowness there's no question that the prejudice to the defendant would be either non or  minimal so the only factor that doesn't weigh in our favor is the fact that the defendant did not conceal the defective service and if that factor alone could trump the balancing of the equities it would almost not there was a tolerable excuse and the color of standard by definition is less then the good cause standard because it could cause or found we would need to engage in that balancing of the equitable factors in the pot of case the court failed to  question that the state had notice of the of the claim as far back as two thousand and fifteen when the e e o c charge had been filed and they certainly they had the amended complaint when it was served in the part of case the defendant had twice pointed out the failure to serve once in its motion for an extension of time to answer and then again in its answer and in that instance both of those times were before the one hundred and twenty days and even run whereas in our case that didn't that didn't apply  in that case the plaintiff served late and then waited a full two months after the fact to request any kind of protonic or other extension of time we promptly moved for that and the plaintiff's only argument there excuse and i think that the court below overlook that and that relates to the language of the st decision in order the november decision which specifically ordered that the amana complaint be filed and served on a certificate of service be papers that we intentionally failed to serve the summons we're not saying we intentionally failed to serve the summons but we did comply with the with the letter of that and it's it is more common when you're filing an amended complaint to not have to serve a summons at that point in time because typically the summ would have already been served and and so i think that we have a colorable to use that we've that we've offered the courts this court has has held that rule for us to be construed liberally to further the purpose of finding personal jurisdiction in cases in which the party has received actual notice and here or here in fact that was the case and i are fairly rare i would bring to the court's attention there are a couple of district court decisions that came down since as we put in  or true but only if they've appeared so that is i don't think that electronic filing would automatically give them notice i think that i don't know the answer my write the address and of course but i don't think that i don't think that the court doesn't necessarily then go and notify them through the e c f system and this happens yes i absolutely absolutely but but here there's no dispute that the defendant had had notice and i think that's really is the key turning point that the courts have looked to as to whether or not leave should be granted so here we asked for three things we asked that the that the november that the december th service of the amana complaint be deemed sufficient even though the summons had come at that time we asked that the january th service which did include interviewed for the defendant may please the court your honors the only way that this court can address whether the district court's decision was an abuse of discretion is  mention the summons but plaintiff has also said that she didn't rely on that order and she didn't purposely leave out the summons so the fact that the district court didn't mention the summons is not excuse for her neglect because it didn't cause her to leave out the summons absent a colorable excuse there this court doesn't even get into the abuse of discretion analysis w honor we're not are not disputing that at least as of december th teen we received the amended complaint i have no personal knowledge as to whether we would have noticed before that but it's well established that this that the dismissal here is within the permissible range of outcomes it is within the court's the district court's discretion the district court followed the proper procedure by weighing the impact on the parties including the fact that as this court has directed it cannot ignore the fact that without good cause which there was none here that the reason for the whole situation is the pla this court has said in the year versus strong case that even if the court might not have done even if the this court might not have taken done this in the st instance and even if the result is harsh that by itself does not make this a reversible abuse of discretion there is no abuse of discretion even if we got to abuse of discretion even if there was a colorable excuse which again there is not because the excuse offered did not cause plaintiff's error plain what did not that error did not happen because plaintiff or lied on the district court's order so therefore there there's not even getting to the question of abuse of discretion but even if we did the sound discretion of the district court where there is no good cause for her search because the bulls as the district court recognized are there for a reason and you know it for them to exist at all they have must have consequences there for a well established in this court's precedent and there is no such abuse of discretion here even if you go again even if you got to that stage would you i'm sorry i didn't intend to i believe that i had already stated that we did receive notice and i'm not claiming that that we did you know my answer to you are we prejudiced as we received notice in december of two thousand and seventeen and that this would revive that as i recognize that that's not substantial prejudice but we don't need to show substantial prejudice this is an abuse of discretion at most even if you get to the piece of discretion which you get you cannot convenience your honor we were not given in that case this court found good cause for the failure to serve and so the statement about the bill construction was dicta and has not been cited or relied on since by the scores i would just like again i would like to close by saying th pillows conclusion that no color will excuse was offered when in fact we did did offer an excuse and i think it's different to say that we didn't intentionally fail to serve the summons i mean i didn't sit at my desk and say oh i'm not going to hadn't reaction to the district court or or or even a conscious attempt to avoid the rule nevertheless the rules did not get followed and in that context how do we say that the district court abused its discretion in dismissing i acknowledge that you have an argument it's not the kind of case where we sometimes counsel just being incredibly and i think clearly i did and by definition that standard of color and color books use is less of a standard than a good cost dinner so i don't have to meet that good customer i only need to meet the color of the excuse that or what do we what do we do  if we were to say yes you made an excuse so it's not that you gave no district judge says yeah i understood that all along to be an excuse i don't think it's good enough when it's the nd time that the service has been deficient is that within the district court's discretion but i think that's what this court has said before that it would be as long as the district court considers each of the factors and here i think the fact that it didn't consider that i had offered that that use that that it's that that's the abuse of discretion as well you have any expectation that if we were to say that to the district court to say well you know there is an excuse here and you know consider that do you think there's any chance we'll get a different  assessment from the district court well as as i came all the way from chief to try to get miss page a chance to get her case heard on the merits so i'd like to hope so