included one the opposing parties effort in expense of preparation for trial to excessive delay and lack of diligence on the part of the movement prosecuting the action and three insufficient explanation for the need to take  we consider these factors in order with a view toward determining whether the district court abused its discretion close quote i didn't think that's all very good an interesting one to start with jersey shore but there's five reasons we have standing st of all intervention has it right demonstrates article three standing second state local laws recognize the zoning violations cause unique injury jason landowners that are not felt by the general populace rd or fair care and its members have suffered concrete injury in fact that is not just hypothetical or conjectural for there's no question that the injury here is traceable to harper's conduct five a favorable ruling by the district court would dress fair cares concerns in fact only a federal court can adequately redress better care is concerns well  it would be banned from seeking that type of bam now because you failed to appeal follow through on the appeal from the denial by the city council well that would be correct but your page nine of the hollingsworth address that situation where it said you don't have a right to enforce the city's ordinance you have a right to seek to uphold it that's the city's responsibility and the city has not chosen to appeal so i don't see where that could having with the court or just been having and having an injunction if the poppa's is to take action and that the city is charged with being responsible for in the city is not in this action then what how does that help you well we have to pay attention to the facts your ins facts are that parker started operating on august th two thousand and eight seen in violation of a city without a business license and started conducting training means for his medical facilit about is standing now we're not talking about state's ability to give you a cause of action we're talking about whether you have a standing to be her here now and to your point your st point about centrally the the fact that having  intervention as a matter right is coterminous with the notion of article three standing well diamon town of just your chester and hollingsworth all were cases in which there was an intervention and they have to explore whether there was an independent article three basis for standing so hot if there if in fact these were can terminate concepts and why would those cases even have dealt with the well that's because it's an open question there's a circuit split on that question and the court didn't address the question and what the circuit is saying anything to the contrary those are three supreme court cases that are telling us that you have to do a separate article three in perri in cases of intervention and it which some of which are remarkably similar to this if so hollingsworth being one of them so what what what cases are you talking about that would create a circu all understand what that means that means that you're it seems to me luck in terms of ordering the court to what are you asking us to do to order the court dismissed with prejudice that would be appropriate well i'm not asking you be appropriate i'm asking you what relief you court said quote that a party should not be permitted to avoid an adverse decision on a dispositive motion by dismissing a claim without prejudice closed but we asked for dismissal with prejudice to our summary judgment motion and that's what the court should have done in this in this instance is dismissed the case with prejudice instead of dismissing it without prejudice i think that's what phillips dictates i would further add on the issue during that or you could make that argument correct just this court in the county of santa fe case for example that involved intervener and there was no question about standing because the intervenor interveners owned land near the power lines that were going in my clients live right across the street some of my clients up right across the street from the sixteen bed commercial medical facility and so there's no question that my clients will fill in impact from this facility different and apart from the general populace and that's all that hollingsworth in those line of supreme court cases was concerned about is distinguishing our injury from the injury felt by the general populace and some value interest in enforcing the law here it's clear that under utama we have standing we have injury has been recognized repeatedly in code by the no the guy turns around he's ok i give up so what injury are you looking at at this point i would say none well if those are the facts i would be i would be pleased but that's not consummation of threatened injury to obtain preventive relief close quote we were already a party in the dismissal in this case was based on the premise that mr harper was withdrawing his application and then administrative review procedure he went right to the federal court he quit and so you're only guessing that he's going to do something bear in the same spot in the same manner that he already we'll get back to the standing issue but if we were to find any why isn't that a response yes i think that is precisely the type of question that is the purpose of having discretion for a district judge in this case still the case being used to argue that this report in this case should have its hands tied and not have discretion but instead should force the parties to proceed with summary judgment including i might add additionally briefing summary judgment which has not happen trying to understand the legal issue of whether these facts quite apart from whatever reason cause the not response whether that set of circumstances would be one where we should feel that you would be flowed from that potential decision none of the injuries that they assert could possibly flow from the potential decision that the federal court could have reached unison in that harper had pro that this federal court had said that the city's decision or its code somehow violated federal statutory or constitutional law that wouldn't require the building to be built it wouldn't necessarily lead to the harms and that is that's the standing problem in this case look at those are abstract i'd like don't like to give a little bit behind your argument to the client that mr macdonald made his assertion is probably had say what we're going to do it anyway or we're do it again or my sense my sense of what it was was there was a television spot on local news program i'm not sure if it was a paid spot but there is a brief interview talking about what the organization does and one of mr harper's employees asserts that the city has earned sorry that the that he has the organization is proceeding with trying to set up and built this facility again or no you're not going to do it here again you may do it in the county but not in this location you know i think that's important for our standing  then it seems to me that we really are wasting judicial resources by not getting to the merits of this case and its decision and that counsel is correct it is argument that they are entitled to have the case result to the that's my only point that's what i say this is not totally academic let your comment its intentions are i think are you very different situation or the city cone is constitutional or not is exactly the type of injury that the supreme court has said is you know to prefer standing and so whether it may be you know whether there may be a sense in which there are various resources that could be perhaps now if you're not going to apply for another permit this located it seems to me that we dismiss it as it's moot upon that declaration d but if that is not your declaration then the case is not moved seems to me  it seems to me that what you're asking us to do is to keep the case alive d that that's very helpful to me and so i'm sorry so even if mr harper  reality is there has to be another application process right meaning even a p a perennial on the legal issues the whole question is the city has the authority to wool on an application pratt's they would have to adjust their legal regime its application yes and that's why the distinction in so you want to does your bite at the apple that's what i mean by duplicitous litigation i mean you that has already been decided if these if this exact same application is filed there's no question that the city would properly deny it but it isn't saying it should you be at this very same location yes and with the same identity record to support it this is an matter of right answers the standing question flies in the face of all of the supreme court's intervention standing cases it would it would be quite strange if the supreme court had decided to try to figure out how to thread a needle through  it there's no way really around the supreme court's instruction that intervention as a matter of right does not forecl let's assume that the city's decision is affirmed by the federal courts and i just want to be precise to say that's part of i think that's part of the contrition that's happening here that's confusing standing in houses standing requires an injury that is that the potential for clues of value and that's a key distinction with philips as well where in phillips the parties had breached the issues which means it had been fully and fairly good and the court could have made the decision why should we just dismiss the case is moot and decided there is a lack of i'm glad the court asked that question i have for reef things the same response t harper if harper makes the same application for the same type of facility the same location it would be bar at that at this point the only way this court can dismiss on standing is if it concludes that denial of the application by the city and the untime all right counselor excused it's submitted