is the court i can tell from reading the briefs in extremely unusual cases when extremely poor track to and we recognize that at the outset but has been played was with an incredible number i would submit a procedural defects  the parties in the briefing appear to agree that the district court committed error in crafting a timeliness requirement on a rule sixty before motion as this court has recognized majority of cour considering the matter if it just means void for lack of due process it is void on the day it was rendered as void a hundred years from now so as a matter of logic there should not be a time when this requirement  the issue i'd submit for the court is what is the appropriate remedy under that circumstance and as we maintain in our briefs a rule sixty before motion is a different animal than other rule sixty b for of relief and that is why this court should not remain hand for consideration to the district court because if it is a void judgment the district court has no discretion one way or or the other whether to enforce monson effectively never had but we have something of a leap to get to the merits here simming you're right and i'm inclined to agree with you that there is no time limit under before  void judgment does not have a time bar associated with it and assuming that a judgment can be voided as a result of a  want of notice of trial for example which i believe to be the case but this is a case where a we don't have one sixty before motion but we have two sixty b for motions and the first motion relied on the absence of notice that they original trial of the original trial and that motion was  d and no appeal was taken from that denial if it's true as you're maintaining that you can file repeated before motions at any time then doesn't it follow that there is never a final judgment the judgment never becomes final your even after it's been litigated even after the void issue has been litigated and reject your honor that is not my position and as much as i do not think that a litigant can file repeated sixty p for motions but in response i believe to your question it's our position that the first and that's really what that was did not adequately litigate this do process issue that is before you what was raised initially was a remitted or motion that went on for approximately three pages as to why the damages were too high and it included at the end three sentences that indicated to the court the defendants were not served with notice for the trial itself first of all the myriad of due process issues that i raised before you today include but certainly are not limited to that one defect which is a glaring defect lack of trial notice but secondly it is apparent that judge mcglynn never passed had been decided adversely to my client as fact issues by the jury now it is apparent i would think that none of the due process issues lack of trial notice lack of notice a summary judgment lack of notice that his government counsel had withdrawn none of that were those were jury issues those issues were not cited by the jury and judge mcglynn the best that can be said about his order in that respect is  is internally ambiguous now is it then you should have been that comes into yet another notice defect your honor because the record is rather clear that detect them on a certain was not given notice that that that that motion had been decided adverse and francis certain about that the evidence tree hearing he initially he had he was he wasn't quite sure but wasn't he pretty certain about that every hearing that he did tell him that it was the indicated that he thought he had perhaps in fact see the or who said he gave them the well well your honor he was quite equivocal as to whether or not he had any conversations with with detective monson about now detect them honest and took the stand and was absolutely clear that he had no idea that this had been determined adversely to him and one of the circumstances that i think the court should consider here is that this is not an voluntarily choose any of the counsel here and a police officer i would submit is entitled to justifiably rely upon government union officials others to assist them in handling cases  ignore the situation for all these years well your honor there is terrific prudence to that it has not been briefed and it was not particularly raised before judge gomez but the fact of the matter is that this was a police officer and i think that that does take it a bit out of the pale in other words that there is some justifiable reliance that that should take place that a government or or that your government is going to take care of you for lack of a better term else your honor under all sixty be drizzt prudence the court is to if there is a delay for instance a failure to meet an appeal deadline and i think in that that was where the question was headed that the court has to look at all of the circumstances surrounding why that delay occurred and we sui cited in our briefs several cases where appellate deadlines that had been missed were were  waived and the court did not for lack of a better term in forced them against the litigant because of errors made by counsel errors made in failure to provide notice and such this is one of those cases where the failure to provide notice was not limited just a failure to provide notice of a trial date it preceded all of the pretrial maneuvering and it kept on going up to the point that he was not provided of notice that he had to file a direct appeal i will reserve the rest of my time i was the expected recipient of a big chunk of money whereupon i revitalized this case the argument of the and his brief is basically in two sections one is dealing with sixty six so called extraordinary circumstances i think the court can summarily disregard that because  in his decision judge gomez cites a variety of cases where a much lesser times were deemed reasonable the the guts of the appeal in my view your honor deals with sixty four and there is authority to the effect that a void judgment is not subject to a time limit and there's also authority going the other way specifically this court  hyde's versus hotch at sixty one of second five ninety found that an eight year delay in seeking rule sixty four relief was and reasonable haven't talked about this case in this case judge gomez ruled that mr minus and was in fact represented at trial by counsel obviously as your honour's of pointed out this morning the denial of that motion was not appealed so to answer your question i believe judge gomez ruling was that mr minus in excuses were insufficient i'm not that he didn't adopt the five rule as a matter of law itself so there's no excuse testified and i'm referring to page thirty two of the joint appendix with the quote with the case such as this where the government had been joined and for whatever reasons we were out of the case  would certainly advise the government employee in this case the police officer we would it would have advised him as to the disposition as to what had happened and we would have either provided him or his lawyer with copies of the documents in the file and exhibit was introduced before judge gomez which attorney schneider ten a five as a letter he sent to attorney minus and he indicated that the address on the letter was the address that his office had been using throughout the litigation that's to send it to the police  deposition officer barry's deposition the defendants were always notified by the customary procedure and it worked yeah now suddenly on the day before the trial and mind you this is not the first trial date of the court had scheduled trial in january of eighty eight and which time mr monis and did not show up and the court continued the case because of his absence and said it for a plea was june and once again he doesn't show up on the morning of jury selection i think judge mcglynn was perfectly justif before motion says the proper and i quote the proper and the vehicle to raise it would have been a direct appeal if somebody had notified detective minus and or his counsel that a final ruling had been issue the statement of thirty francis later on in that same hearing he was asked in any event were you aware that he mean judge mclin denied the motion answered yes i was aware that he denied the motion question and did you inform missed the monist in that he denied the motion and i believe i did yes question what was his reaction or response answer francis refutes that and says that he clearly received it and he believes that he gave it to his client it's very he committed suicide i mean he's not alive he's not  there's also lots of the effect that the finding of a boy judgment is something to be very carefully approached by the court and that it should be narrowly construed in this instance we feel that there was a notice all along before trial immediately after trial also after the the the fact is that he only cared about it when he has something to lose thank you very much  thank you may please the court one of the questions that the court asked my city in cali was whether the district court below made findings with respect to whether or not notice was actually given to detective monis i would respond by saying that the court scrupulously avoided making any findings at all in this case regarding notice in particular the letter the june one thousand nine hundred seven letter that the court discussed that as the court observed was to the virgin islands police department detect them on a certain testify that he provided very specific contact information to government counsel but that particular letter never reached him the letter also is quite curious in that reciting the judge mcglynn had made rulings such as permitting government counsel withdraw he had not done so he didn't do that until september based upon an apparently oral motion because motion which i think the parties concede was thrown is and avoided thereby sidestepped and avoided having to make any findings at all as to whether or not notice had actually been given so those issues i would submit have not been ruled pomp for attorney francis the record i believe would be lies some of the argument made by my colleague with respect to mr francis is and all been that the last minute and whether he was ready to proceed we quoted in our brief in the appendix has his testimony very clear that he stepped in and was pinching at the last minute without any ability to present any evidence any testimony at trial whatsoever and that is important i would submit to the court because this was not a lay down case for mr orde this was a sharply disputed factual event and the only thing that this court has in the record before it is officer monis and adamant testimony that he told everybody in deposition and would have testified at trial that nobody assaulted mr gordon and that he identified himself as a police officer and that he was acting under color of territorial law at the time that of course would have provided him with qualified immunity but because his own counsel filed a summary judgment most which was conceded readily and handily by the plaintiff my client's entire defense case he ever got to trial and he wasn't even given notice that with respect to whether or not attorney francis ever received such mclean's order when we first started arguing this case to judge gomez what we had in the record was attorney francis's affirmation that he had not received the order he then his testimony was as the court is observe somewhat different when he was on the witness stand but typically there isn't much case law that it should be in a typical civil litigation contexts the seminal case on that is link vs watch railroad but as we pointed out in our brief link versus wa bash involved the center pin of that is when the lawyer is freely and voluntarily chosen by the client and that the lawyer and client are in an agency relationship attorney francis is clear that he abandoned this case turned the file back to the union washed his hands of it months before the opinion came down and i but he months of finances to file a post promotion that he did your honor he did he did and it did not hit all the points that we are raising before you didn't talk at all about the qualified immunity problem or defenses and judge mcglynn from the wording of his order plainly did not address those arguments so under this court's precedent regarding issue pre clusion i don't think the court can possibly say these issues have been previously litigated the argument is mr francis is failure to appeal this case should that be visited on assent and i would suggest that under the circumstances of this case the answer would be no the court should not be unmindful in this case that there are a myriad of due process violations that would any number of them would i suggest have led the court if it had considered them to rule that this is a void judgment if it was void then it's void now and finally if i may finish my thought yes thank you ron you we have raised and i ask the court to consider that mr gordon under the law of the restatement of judgments a political here can have no reliance upon the judgment he seeking to enforce because he participated in large part of the problems that we had here with regard to the summary judgment motion and the torpedoing of my client's case by its own counsel i