justices in may of two thousand and three a young associate and or his staff in my office in las vegas nevada made a calendaring error but ultimately that's my responsibility it's my firm and that's why we're here today the initial still clubs versus bank mill scotia and some other consortium of banks the action involved in the search and that the banks have interfered with the contractual relationships of my clients in the process of  having done all that we could have done while awaiting the answer we found that the case had been removed to federal court subsequently we filed the appropriate certification from all of us and parties who didn't receive notice of the r little court my office filed the certificate of notice injured parties on april thirtieth on may twelfth we filed our joint status report and then on may thirtieth the motion to dismiss all claims was brought by the defendant banks that was apparently served on my office on or about june second making the opposition typically do about june seventeenth that was the error someone failed to properly calendar that when it was stuff that we discovered b claims interference with business relations in particular we played those claims we have fraud claims against the bank but my understanding is that when you go with determination by the judge though it was unopposed there's no question that we had obtained the stipulation but apparently the second error was under local rule six one you needed to have looked at on the first page of the motion the original filing date of the plaintiff referenced in our sixty motion those are arguments that we felt have substance and this needed to be tried alternately to a jury and let me just glance at the opposition that we ultimately did file so i'm not speaking out of turn here we referenced in our opposition that's attached at eight two are attached leading to the reasons why we thought there was a basis for liability we reference the specific problem such as we knew were better early stage we indicated that we intended to take appropriate discovery to bill to flesh out those prague claims we also referenced the general interference with correct and the heart of the response or a significant portion of their response was your honor the district court they have to show you that they have american race claim and they haven't done that and my understanding is that in your reply you said that that was not relevant well is that right your honor i don't think we if if the attorney that responded said it was irrelevant then that would have been wrong but my read of the very abbreviated truncated order of the district court granting first their motion this mess and then coming back and saying i'm also going to deny sixty i mean relieved far from adopting any reference to the pioneer factors of the brain on these factors of the test it simply didn't address any of those things it referred in any event the ultimate decision rejecting part sixteen the motion very clearly did not address the requisite factors under brioni use and under even the most recent think a decision from this court which you  he had an obligation to address those factors and in his decision i find no such reference indeed he makes some reference to our firm has having been look farge i don't know what else we could have done saving except file a complaint changes that in any way there are a number of cases we cited that make clear that a showing in that regard is as necessary and i can cite those but i think they're all in our briefs the humor case was the initial one deciding whether excusable mac neglect should be it is exist under the circumstances or what about arguments that we have no idea what standard the court imposes even that it would be nice if i were here today with the distance and i'm sure the panel would appreciate having the decision that went through the factors and specifically outlined them but i would approach the court to the basement decision which all of their moving papers were centered on those issues there's nothing in that you know well the order doesn't have a lot in it and you know it's really just the denial of the motion there's no indication that he that the judge actually disregarded he the banks never really disputed that those factors were relevant to consideration we you know we admittedly it stipulated in fact we were the ones who contacted them and said you know where's your where's your response that's  reason that they knew that they missed the deadline and you know we turned around this stipulated and the judge on his own issued a decision so in the context of making making our response we focused i think virtually solely on the defense as opposed to the the other equitable factors but we never disputed that they were relevant so i and a quibble so i don't think i think sitting here today it's fair to assume that the judge did apply those factors and page decision that was very brief and then was straight to the point and i think that it would be a waste of all of our time to send this back to the court and have them have him do what i think we all would insist the pay him  doing if it were sent back to him it be one thing if we disputed the standards or if the standards were presented to the court but they all work here and you know i think that that's really telling in terms of what the judge  i don't see anything in the earlier president that you know if you look at the cases that were argued by the appellant and by by us in our papers there really wasn't a push to establish a per se rule under the circumstances we raised the meritorious defense but we never argued as was argued in in pink k that you know there are a failure to calendar the matter  was you know per se excusable neglect we never took that position in the vacuum your position with let's look at the merits it's almost as of the motion to dismiss were dealt with by the district court on the merits and you're here trying to defend it should have been dismissed for that reason  that's right and i think you know it and i think that i don't think i think a change is that as i started the know the notion that the merits have to be considered in the equitable balancing turning to the merits and i think it's important to to not lose focus of what happened here aladdin files for bankruptcy and shortly thereafter the the poems on commence an action against the lad alleging virtually all of the same claims that are in the complaint that they then brought against the banks more than a year late more than they took about a year and a half later the banks participated in the settlement discussions we preach this thing banks were al could have if we knew that they had claims against us they never raised that in the context of these discussions and you know we really feel sandbagged i mean we agreed to release our collateral to pay these claims that for what we thought well making this matter go away never was there ever any articulation that they thought they had claims against the bank in the context in this context i mean you know i guess if i going back to my experience in future experience any time i represent the bank group and someone sues the debtor i'm going to make sure i get a release but you know i can't insist of hate that never circumstance particularly where there was no indication no expectation and nothing that suggested that there were any was any liability by the bank  know working at the complaints i mean they are identical we're talking about the same facts and circumstances the same transactions and it strikes me as very compelling that they're suing the bank for directing how the aladdin's took action when they released aladdin for that underlying action and particularly where are these were the bank's assets that that provided for the payment of these claims i think that to permit this action to go forward in the council we never got it because we never got it you never get financing we spent over a million dollars we did not recover all of those sums let alone future lost profits from what would have been a twenty year low at a las vegas showroom we understand why the bank may  the bottom line is they could have asked to have been involved including they they did not in just a quick review now the opposition that was filed on july eighth we reference all of the reasons why we have meritorious claims in response to the motion of th message we point out that the settlement has not apply to the bank that the bank is not a part of the sale of the bank did not subsequently acquire an interest in it we're not reading from the opposition that was filed on july eighth although it was never accepted by the court because of the motion to dismiss on the merits in front of the trial court judge and i believe that that's the purpose of sixty b one i believe that was the night you're in to tell me and i believe the only record we have of why the judge denied that sixty one motion for relief is because somehow he believed we neither failed to prosecute it in timely fashion and or because he totally as a trial court judge refused to look at the four factors that this honorable case which is peterson versus gonzales chang mr irvine were to take a five minute recess or less mr erb is arguing in court room one on another case