good morning maureen if this is a court my name can you hear me well pretty good i think you might be able to speak a little more into that but my name is patricia barry and i represent the appellate francine mcdermott in the present right here in court good detail in your papers where i was seconded one of the many ex parties to continue the trial and again i mean we have been telling judge phillips the same thing all along november meaning it well she didn't argue it so i doubt that's something she could go she's never taken never argued at any point i mean my worry is that i read the order says without prejudice so frankly judge rico stole my question which is it was without prejudice he just file again i didn't see the four i owe my god i missed every single tree in the forest in terms of the statute of limitations the accounting which is the most important aspect for which the case got dismissed because we didn't have the accounting or at least the records to begin in a county that statute would still be running some of the retaliation county ation if you look at the rehabilitation act it's three years you look at the a b a that's three years come on i mean i don't think you argued that so i don't think you get a chance to come up in argue it but the biggest question is i'm having a tough time just like my good colleague should really go off that all will see what that amounts to is if it was without prejudice prejudice but it says without so when you analyze the factors and decide was it the highest it was a without prejudice isn't the highest correct sanction and so that would make it easier to affirm the district court because all you would have to do is refile it's true you'd have to pay the fine details again but then it just starts the clock over right just as just as long ago i can't believe i did this just as long as  advice still it might be good i'm just trying to say if you did come in and said something about the statute where was that on your in your brief because i never saw it i just was thinking you know if i apply these factors and it's without prejudice and to be fair not only is it without prejudice but what's the standard review it's abuse of discretion meaning i've got double deference to give to the district court so i think your argument is pretty difficult so the order of dismissal and i'm trying think didn't the defendants of i thought that you know what here's here's something you have you still have there's no way that you have to do this but since you it seems to have surprised you  you could reserve the balance of your time here with their argument as they've already heard what the question has and then you have all of that time for rebuttal ok if you want to do that and if you have the documents with you you can go ahead and look at it while while you're doing that that might be the most effective use of your time ok we'll give it over to mr haynes think ok you still have all your time look very carefully and for september twenty fifth two thousand and thirteen which is the order to show cause to see with the judge that through one of the last was never refiled into the issue with regard to statute whether that was even in play or not was never put into the opening brief so we didn't feel it was necessary to discuss that i know but if you analyze it from a standpoint of without prejudice it's why you still may apply the same factors it's a different analysis llants lawyer was simply only one that was asking for continuances to defend you as for a lot of continuances and if you look at it and i can see i don't know just might i wasn't a district judge but i was a trial judge in the state court that both of you kept stipulating you had a pretty tight trial schedule the district put you on a pretty tight trial schedule all but if you kept stipulating for continuances and at some point the judge and you can stipulate all you want but it's ultimately the judge's decision at some point the judge got you know got fussy about that and said ok no more and seem to focus on the appellant and then suddenly feel like the e mail that she wrote a side just sort of ganged up and said oh i see our opportunity so yeah we're going to we're going to say yeah it's all her fault that it's gotten this far tell me about that with dates were continued on my ex parte to august the next delight of august five wins again with no filings whatsoever from opposing counsel when it seems like both of you decided this was too you had problems there been a lot of problems at your school district and changeover of people and it was hard locating the principal and all of those things so you were trying to find those witnesses in people and try and make them available for depo right i was rather in with and the time schedule didn't work for you of times as if she or he has no other cases on their talk and just had at your women caprice can move the trial and after two continuances the district judge said deadline comes and goes september tenth again with no filings whatsoever there we have a trial that we've been told is not going to be moved again it comes to september twenty five still nothing from opposing callus as far as the move intentions exhibit list witness list i'm flying i was doing the best i could preparing myself for trial with what i knew with my witnesses again i was able to round them all up like you both got on the last nerve of the district judges what happened it could be but you know with regard to september twenty five when she issued the u s c again saying ok fine plaintive you need to give me your documents by september thirty again that's a week from trial ok if i'm sitting i'm waiting twelve twelve on the thirtieth comes by  looking all morning where are these documents and even the day before the friday before so i file my declaration and say look judge i can't prepare this for trial in six days not possible i received nothing so this is my mindset and i'm looking for these extensions yes going to extensions because i need to get everything i can from play this council ordered pair myself for trial that was one week away so when you say i did nothing to compel those documents from the core of the course assistance to get those documents my declaration is my last gasp six seven days away from trial i receive nothing your honor what do i do i think what you do in any case is if you know you have a trial date coming up and you have been received will you claim your title to and i see what it is here but i was a little surprised at your argument here only because it seems to me that when the judge makes abuse of discretion decision you say even if i didn't wan even if anybody didn't want the judge makes an abuse of discretion decision we're stuck with it because there's an awful lot as to just got to be otherwise now that seems to be the right a bit right idea on appeal i mean rather than i was all prepared she was and then i got this and she didn't give me that and that that was the only thing that i worried about because to me once past the district records made a decision then we're all on standard review what do we do with the district court's decision and it doesn't seem to me there are any arguments to be made that she abused her discretion underneath when she made her decisions even if you would have wanted it even if everybody wanted it which they did what she decides these are the way it is that's the way it is unless you can find some case some federal case that says she's out to lunch i couldn't find you one i do not your honor with regard to the warnings to fairness judge philip she gave several warnings that after the second continue she said ok counsel no more continuances and it was state court that's why deal most why she said that to you too and you were trying to get another continuance and then i think but judge smith  on appeal and i would sort of think if you get kicked out of court because of missing deadlines then you might have learned a bit of a lesson is that relevant to the consideration here i think it is relevant to consider she didn't know she was going to do that that in judge phillips she was looking at what was in the front of her she said ok even if i do grant another continuance that's not going to do anything that's not going to resolve the problems that we're having with repeatedly missing deadlines and filings and i think the it could be evidence of obstreperous behavior and and that this is you know serial missing deadlines as it were but i don't i don't know whether it is it's kind of the elephant in the room that i don't know if it's order to bolster her case on reconsideration if that is true that is correct john there were multiple declarations stating why the work could not be performed given caseload and other issues but the actual documents that needed to be filed that judge phillips was demanding to be filed were never filed well the reason i asked that is again i'm on standard or review abuse of discretion and i see reconsideration is only appropriate if the district court is presented with newly discovered evidence which didn't happen committed they're clear the judge committed clear air which i can see would happen or there's an intervening change in controlling law which absolutely didn't happen so i was trying to say what is the best argument what was presented from the time the duke court made its decision and the motion for reconsideration and all you're telling me is affidavit saying how busy she was  my defense the there was no problem with we had both engaged in diligent discovery the biggest problem was that i stipulated to hand producing the documents late but but the problem is stipulations only go so far right you know that those of us that wear the black robe and control the scheduling right you know how many times to sit judge have to tell you know what part of no do you do either of you not understand but it's when you when we say it's a little bit like if you have anyone that's raise children when i say no does that mean till i count to three i know or whatever and she said i've already gotten two continuances i'm not giving any more what part of no did you not understand right now mr mr haynes had provided several declarations indicating to her honor that he planned to produce the discovery now keep in mind i serve the requests for discovery for the financial records in april he got them to me the day my exhibit list was due five hundred sixty nine pages on september thirtieth so i thought in view of those circumstances and in view of the circumstances that each time the seven times or how many times he filed his ok to extend the trial date he had indicated to his or her honor that because of the turmoil the rapid turnover of staff he claimed that it was very difficult to get all these documents he planned to get the documents to me in september and the judge never said anything i was law into complacency but in terms of being on to i was on time with everything the pretrial documents the pre trial statements the moran repeated tension of launch attacks and so on was that given my experience with practicing in the federal courts for forty years i was certain that even though she gave were told i'm not continuing the trial again because he did not get the documents to me until the day my exhibit list was due five hundred sixty nine pages and i thought so you had several remedies personally you could not move compel right you could have also asked for sanctions to be imposed you could have even asked for the jury to be instructed that there was a failure of your adversary to timely produce and they could draw an adverse and for you had many many remedies available right and i did not avail myself of those remedies because i thought why get into those kinds of remedies when all it was was that ok he was late i got the documents on september thirtieth which was the date that my exhibit list was due for trial that other than that it was a fairly seamless proceeding with those two extensions we did finish discovery the other thing i want to say is this  i have practice in the federal courts throughout the land including twice in the u s supreme court for forty one years i have never ever experiences with any federal judge but having said that the financial documents are very high i'll invite you to come visit the southern district that's where i have not appeared i have appeared in several courts but not the southern district of new york and i know there's exceptions but what i'm saying is that mr when it who was the who would be trying the case and i had a lot of collective experience together and we said we thought that these were the best dates for trial yes i'm just trying to figure out the low just ticks of where we are now because i certainly will going refile and i might add there's certainly more retaliation and more problems with the district and i just i just want to say this i didn't push him i realize that i like mr haynes francine and i really enjoyed working with him but i just cannot i hope you won't ascribe my feel you're to demand those documents sooner because i can't tell you the problems of the special ed kids back and blith and i hope i have an opportunity to truly bring the facts of that case i realize there's a public policy an expeditious a completion of cases but we can't forget that those kids are entitled to their rights under idea individuals with disabilities we do a lot of id a case yes and they have been systematically deprived of faith a fair and appropriate education and francine has been their only advocate she fights for them and they just treat her with as we have a legendary complaint i think i had like what if you count up thirty one counts we're not insensitive to the merits of any case where i certainly understand and i'm sure you've explained it to your i understand that we have to deal with the procedural status here right and so we're you know that's that's what we have to deal with now i've allowed you to go over your time that i saw leaks have any questions i would be more than happy to defer to them and i have to figure out while we don't have legal advice i thank you both for your argument in this matter this case will stand submitted thank you