my name is valerie hawkins the plaintiff appellant in this action minutes of them uninterrupted argument thank you good morning you're honest as i said my name is valerie hawkins plane to rule six the application to reopen koppen to the nd auction filed in the eastern district because the plaintiffs presented new and material and the lower court wrongfully ignore the fact that the plaintiffs in this action were not seeking to prosecute two actions therefore the lower court abused its discretion with respect to the law and require instead that the district court consider the equities of the situation when exercising its discretion judge sack well i just want to know why this is in this case it's a complex question i mean it's a little strange to do what you did was file one and then and then from point file another for some reason that that doesn't pop out  can you explain to me how and how about it well there was absolutely no judge shopping there's no as about how did it happen it's a rather it's it doesn't seem very complex i understand that it can be complex but it doesn't seem terribly complex lower court the plaintiffs were seeking to litigate two cases the plaintiffs in this case were not seeking to litigate two cases they were not seeking to consult the resources of two of the judges the plaintiffs tried to remedy the problem here by requesting that the st case be removed from the docket the st case haven't been removed from the docket the nd case of the record and this action shows that the there were no issues with respect to surface upon the defendants or jurisdiction so the nd case was ripe for prosecution as opposed to the st case not being right for prosecution and present in problems with jurisdiction and service of process which the local court to remedy to send the plaintiff back  longer with us but the plaintiffs would have had to st move to request that their motion to dismiss topic one be vacated then they would have had to request that the they be given more time to to to serve the defendant this would have consumed the visualises of the the the local court with respect to these motions and it's just it's just totally inconsistent w or judicial economy and comprehensive disposition of litigation as i said earlier the unique factor in this case which was not considered by the lower court was the fact that the plaintiffs in fact were not seeking to litigate two cases they took a permitted step to terminate the litigation in the st case and the nd case they have ach guess judicial economy i suppose is aided by not telling the judge anything that man doesn't have to do anything if she doesn't know about it i suppose but the truth i'm not sure that's what you're supposed to what are we to to make of the fact that in some other cases and you've been involved in that the court did recommend it sanction you know all these cases because you've been involved what do we what do we do in that circumstance i do remember the situation  from mr hurst or may please the court my name is nicholas herzlinger and i represent armor in this matter and my st point would be to say this is a rule sixty b two motion and as i'm as counsel for the county mentioned the lower court has considerable discretion to decide that type of motion and that a lot of the elements of that type of motion fell short here is particularly the requirement that the move must have been justifiably ignorant of the new fact despite due diligence on the original application now if you look at the record at page seventy six dollars you'll see that the fact that the letter application had been made to judge that to dismiss top in one had been dissed had been discussed previously with with the court so the court was already aware of judge feuerstein was already aware of that that does exercise a lot of discretion not only with respect to rule sixty but also with respect to the click of a nd file the rule and there's a lot of law in our brief to the effect that the court has a lot of power to exercise its own its own docket in terms of what's on its own docket and whether whether duplicative actions should be dismissed the cases that the plaintiff relies on involve very different fact patterns where you have two different venues if you have clearly if you have one action the st filed action in another state and another filed action in a different state in a lot of the witnesses and convenience of the parties and things like that are in state number two then that's when these cases come into play that the plainest cleanest is relying on what we could have you know in the interest of justice and convenience in that type of thing we might you know go with action number two instead of action number one but in this case we don't have a split event use there both in the same venue the both of the both in the eastern district and also the so there there's no case law stated on point support of the plaintiff position here there's no abuse of discretion and if the court were to rule in cleanups favor it would rule it would it would cause a lot of chaos in the lower court which for a number of reasons the judge feuerstein pointed out in her order it would it would encourage judge shopping it would encourage you know a practice of saying well there's something wrong with the st case i'm just going to file another case that's not how you know these things work if you have a problem with service if you have an issue with filing proof of service you know under rule for then that can be fixed you know you have to file opposition to a motion to dismiss that's not some sort of inconvenient to the plaintiff kind of makes it out to be an inconvenience well i think i understand the answer to the question that that was posed a few times why was there a  action filed because there were a number of defects in top and one there was no proof of service hadn't been filed to service hadn't been made on the defendants and a motion to dismiss had been filed in the opposition papers if i'm and if i'm wrong i apologize but in your brief you seem to have misspelled the name of the district court judge sixteen times and i'm not sure that's exactly starting out on the right fo ot and i thought it was worth pointing out to you i apologize for for that your hon become plantain top and one record i'm sorry i couldn't hear the question your honor didn't you answer the complaint on top and one yes you had you first off i'd like to say that the plaintiffs did explain why they made the nd filing and koppen two and that was to address any potential problems with service of terminate one of the duplicative actions and to seek to conserve judicial resources by going forward with a case in which there was no issue with respect the service and jurisdiction was achieved over all of the defendants and that the case was right for prosecution lower court ignored then and just mechanically applied the st filed and did not take into consideration the unique facts in this case remand the plane to actually sought to relieve the district court docket of the code to filing by seeking to have top in one