didn't you were given a schedule six months in advance you knew when your motion for summary judgment was was do you miss the deadline i found this it by six they see ana and i yes that's that's when you filed the extension you filed you filed the extension late so you weren't you were la past the government had been late also and there was never a case where the cave case where the dismissed i was all had been always given an after the district court was going to it was after six months after the case was dismissed by the magistrate judge and you didn't fight you didn't take anything to the to the just to the district court yana i was under the impression  i took all of the we medial steps that that i took ordinarily a motion for extension ought to be filed before the deadline not after you've already missed the deadline the correct the situation it was no it was just conduct the words nothing no violation intentional volley of the rule i think the main basis for the district judges action was that it lay dormant for all those months not there are the mistakes that you made earlier but then it reached a particular stage and then nothing happened for month after month after month after month right is  know no lawyer even one that makes mistakes now and then would think that you can just leave your case to sit there for four months that's that i think is what was driving the district court here not that you know  think that's what's going on so it's a little hard to say that it's that it's just you know that you're being way amped for human error it's it's just looks like counsel lost track of  your case i mean no no i did not proof but i want that that's what i'm saying wouldn't wouldn't you think after three months let's say the the nothing happens nothing has happened in your case that you need to do something y but that's when when you're waiting for something to happen when clearly something is supposed to be happening from somebody else what were you expecting me yeah if the ball is in somebody else's court you should wait understand that paul's pretty clearly in your court when you're the no i'm sorry november till three in the november thirteenth and what did you do after november thirteenth i was waiting for the report and recommendation ok you did so you didn't do anything until april when the district court said i'm clearing this off my to object to whatever decision he was going to take i what what what further decision did you think he was going to make when he told you that the case was dismissed but you didn't weren't getting an extension what did you think what kind of an r and r did permission to do anything at that time ok let's hear from the government i will give you i'll give you a minute for rebuttal to respond recommendations so when it when a magistrate judge issues a non dispositive order a claimant under the rules has the opportunity to object to that order within fourteen days that absolutely did not happen here it didn't happen for the denial of the extension it didn't happen for the second court all of these extension requests were dim is dismissed without prejudice at no time did miss man back ask for motion to file a motion to file a late brief explain with reasons that satisfied the magistra options on this set of applications and he doesn't have the application to file or the option to file other applications which off the record but he has so so that that's a remedy ok i guess my question is had the statue of limitations that the  dismisses this without prejudice which means he's free to start the whole thing over again if you still under the if the special attention sort of is that right well that's goes by the complaint in the complaint was timely filed here so so once that that triggers that that means she satisfied the statue of limitations so there and then it becomes a matter of the litigation that ensues after the complaint so she wasn't barred from proceeding with this litigation she just did nothing for six months until the if she had to start all over it would not it would arguably not be a timely filing at that time if she had to start over yet if she had to start over so when did it become true that she would be too late to start over well that's the question i took is a very serious story is your question that so the final agency decision from that time forward you have sixty five days to file a complaint so that disagree with that because the magistrate judge did not on dispositive things here so even though the magistrate denied the motions for extension that did not bar this man back from explaining why she was late and giving satisfy magistrate gallo's desire to have jesus think claims that mean that his i understand that the key thing that's driving the idea that this case should be thrown out is that it lay dormant for four months exactly that's the main thing and she has an answer to that it may not be a good answer but her answer is she was waiting for a report recommendation which seems to be legally wrong to me ok but we don't always punish litigants for the for legal mistakes that's a legal mistake if that's what the other counsel is actually thinking and there's this contention that maybe some other relief could or some other sanction could be imposed without private the  game of having his her day in court is there some other sanction that could have been awarded or was the district court just sort of left with ignoring the all these violations or throwing the case out in a way it could never come back was there anything in it could they find counsel or something like that i mean i don't know i'm asking you know what what the what what lay in between it seems like either extreme is pretty extreme is there anything in the in the middle it could have been done here a sanction well because it allowed ms man back to come to that last hearing that's an equitable factor i can see that but i'm not it's not answering my question is there anything having her not having done that because of a misperception that she's accurate in her reasoning that it because of a misperception as to what she was waiting for she's waiting for something that's not coming because she misperceived the law that's what she says right right so that deserves a sanction and doesn't shouldn't mean that we waive all of the earlier lateness is that have occurred in this case i'm just asking whether the court could have done something other than dismiss this quote unquote without prejudice but really with prejudice but there was nothing there there was i mean from your perspective you would say there's nothing but i'm wondering if that's true was there something else that available where would that leave where would that leave the client with the client then be able to proceed forward if we rule that way or the client would not if you found an abuse of discretion you send it back to the district court to hear the case on the merits that that could happen but you but this is one factor out of the five and the case law often has up holds the dismissal finding no abuse of discretion when there's three of the five actors appropriateness of a lesser sanctions year it sounds like maybe a fine or something other than just outright dismissal of the action it didn't seem like from the record we have before us that this record ever gave any consideration to lesser sanctions well and to that i would say  henderson speak to allowing the claimant the opportunity to be heard with the warning local rule forty one for says with notice and a hearing that the court might dismiss the case it doesn't have to so she had that opportunity and i would say that that does fall fall fall under a lesser well no i mean some kind of an evaluation by the district court in explaining the basis for its rul all we have is a minute all right it says no gives no explanation right but i thought ark was you know i thought our cases said you have to give us the explanation that i thought about this other thing i thought about this lesser thing but the only thing that will remedy this kind of misconduct is dismissal and we don't have that explanation right well well i i would i think that the court says that it's preferred that the case law says that it's preferred that the district judge gives reasons like that but it's not absolutely necessary and i do have  conduct in this case failing to follow any order failing to ever even so we would say fall on your sword say i made a mistake please don't punish my client for this she didn't say that really until she came here and  rejected that i am fairly certain that's in your ish it might be henderson but this court has set that so you can't use that one factor to outweigh everything else in a district court's ability to manage its dock as as is is a major concern here and as mr mann back said she's been practicing for twenty years presuming she's aware of local rule forty one one which says if a case stays dormant for six months you are subject to dismissal in my opinion you come to that hearing you fall on your sword you say i did this wrong i'm really sorry i didn't mean to do this i didn't mean to prejudice the court i ask you not to impose this thing on my client that didn't seem to happen here and  will also point out that at any time she could have filed the motion for summary judgment and begged the courts leave to take it late that didn't happen and even here in this court she felt both of her pleadings late but managed to attach the brief with them so that's something she could have done below these are all things that the court could take into consideration and if you look at this record as a whole i think it is agreed to how how how misadventure in the interest of your client to have that sanction rather than a sanction that goes against the counsel that you know that hasn't litigated this case properly so it's not the interest of the of the of the secretary or the commissioner to have clients get whatever their due in terms of social security benefits and their counsel i mean i understand that you have an interest in and in having a procedure that can proceed and not bollix up the district court but it seems to me if you're trying to just wondering in terms of the interest of your client would it would it be against the interest of your client for the district court instead to sink to have a sanction that actually bites but bites the lawyer rather than the client that would be against the agency's interests that's all i'm asking but i will point out that the agency already decided this case on the administrative merits and found that the client was not disabled and we still stand by that decision  to say that dismissal here as a sanction was over the top and it was an abuse of discretion that somehow the case could go forward and i guess i'm wondering if that's really true i thought you had argued in your brief that  because plaintiffs counsel missed that fourteen day deadline under seventy two and a that we we actually don't have the authority now to say that the initial denial of the extension request was an abuse of discretion that the so if we were so if we were some something some find that i that what applied to me here so that my fly and and and if when then it let's assume that and i'm not saying that we would do that but let's assume that we that we send it back and that's something that the district court on remand decides to do then how would how would your case be reinstated how would the case be reinstated you still got the judgment that it was too late to file a a