upon a ruling in the hungary and torts that you believe are unreasonably and arbitrarily permitted us from seeking remedies that were supposed to be available to us  at the invitation of this court addressing this court we went to harvard and submitted a claim the claim was summarily rejected we believe that that rejection constituted an unreasonable  or that it was in fact mr fisher so if i understand what you thought you were doing you were coming back with a motion to reinstate as are two opinion the eventual attains had said you could do and you were essentially trying to make a showing of futility not based on mr fisher's own experience but based on his keller's experience because one or one of the branches that you could go down was futility and the district court thought that she was making her own motion and so was confused and and just kind of got off on the wrong track is that she's been a real case  that's that's the rest of your argument so there are a couple of ways we could approach this one is to look at ourselves add whether her experience was enough to show futility because it wasn't then and even if you corrected that mistake you still wouldn't have anywhere to go another would be to say to the district court let's get this sorted out this is an attempt to show futility  i mean there are a lot of other hurdles that this case is going to experience if it gets any further vote this one may be one that you can get beyond i don't know but maybe you the motion which entitle a motion to reopen the case motion to reinstate by the plaintiff paul fisher now that motion was based on the experience of kalar this court for the first time this court gloss on the statute that we would like to see exhaustion of that's part of a mess to remedy that's a very common rule in international law and so one issue even if again we go with you and we say this is really fisher's case and so on is whether in the absence of mr fisher himself trying to exhaust correct you've done what we ask you to do because one of the things i'm carrying courts wanted was some effort to look through the some effort to become specific about the individual's experience and it's difficult i take your point on that but it may not be impossible that gary in court said that any way it did and we believe it and we can get to the substance of that whether that constituted the reasonable an arbitrary ruling but apart from that this court did not direct any particular again in fact i believe your honor that this is the first court to have required this type of gloss on the did not get any specific direction that it should be any given one of the class members or but it's not a certified class you don't have a class yet that's correct but it was clear that this that there were a number of victims that were that were part of this case that the whether it was listed in the original complaint or whether it's listed in the complaint before them gary in court it was clear that we had a number of victims in this court did not when it said plaintiffs did not specifically instruct us that it had to be paul fisher in fact anyone who's claim was similarly situated could be the claim could be brought so we then had to make a decision who is best suited we read that last edition though when you made that decision was there anything that prevented mr fisher from filing a new civil action as a as opposed to the motion to reinstate because what it seems like when when you look at the judge  when he did file here clearly it was mr fish's motion now could we have filed a motion for reconsideration we could have but we did not because as we've cited in our supper a supplemental memorandum if you look at the g about that because because it judge judge jury again said miss counters not the named party and therefore there is no standing so i don't think i don't read it as he being focused judge creating being focused on seemed to us clear that he was rejecting the kellner firing in in hungary as being a firing that was the ruling as being unreasonable and arbitrary we wanted to get to the heart of the matter we wanted to get back to this court as quickly as we could for obvious reasons but c maybe you rushed too far because i want to go to the topic of our supplemental memorandum at this point because i think there's a serious jurisdiction is lacking it looks like an interlocutory order to me i don't see why there was no time limit on this motion to reinstate whatever it was you know rule sixty type motion or something else and if we don't have appellate jurisdiction that means the case is still alive in the district court and you can go fix the parties you can you know make a motion to add a new plane to forget about class action pursuing this and so the confusion goes away he can make his argument about the factual basis of somebody else's effort to exhaust the district court can make a decision about whether that's in this instance or ever permissible in me maybe yes maybe no i'm not going to prejudge that one but it the question is that in order to have appellate jurisdiction you have to have a final judgment or you have to have some reason for your faster path the one that i think judge the chief judge would is suggesting that you just on undo the snarl and get back in the district court on the substance of the sufficiency of  and your honour's if you would give us an order saying that the trial court was incorrect go back down and do exactly your honor what what what you just said we would obviously accept that because that's the shortest route is of the essence we need to get to the substance of whether or not we met the substance of requirement of this court by going to hungary being confronted with that order and whether or not that  constitutes a sufficient basis for us to come back because you're honest there is no we have no reason to believe and the defendant has never suggested otherwise this order would be different for any one of our other hundred twenty one hundred twenty but we're getting ahead of ourselves now i'm appealable because it does not clearly bar the revival of the plaintiff's claims and i think this impulse way to see that is to ask what would happen if you are firms that order on the merits with the case feet over leaving nothing for the district court to do but execute the order as and a final judgment or would there be unresolved issues that could still be decided by the district court i think the conversation you were just having about the procedural snarl all of that points to under a solved questions that could still be decided by the district court and if there are questions that we don't know the answer to now that the district court could decide later on that with then come back to you in a subsequent right so so you don't have a final order i will briefly address the the grounds for finality that the plaintiffs discussed and then let's turn to some of these questions about the appropriate procedure and what plaintiffs should do next if they want to try to continue as i read the plaintiff's supplemental memorandum what they what the essential argued is well the judge's order is final as to discrete issues that was final the place you said on page two as to whether it's supposed to be mr fischer or another one of the named plaintiffs who exhausts as opposed to a putative class member just said it was final as to whether miss kellner had standing and the problem with that argument is that finality is not measured by issues it's measured by cases every order by district court resolves some issue generally finally with respect to that issue what every order doesn't resolve is the entire case and as this court said just a few months ago in gleason you know it's a final order because it's the district court's last word as a whole on the entire case i think it's pretty clear that in this case we don't have the district court's last word  then on what on the entire case right but you but don't we have the district court's last word as to whether the movement on the sixty the motion you know was a proper movement we may be right so that four though because it's not all claims of all parties and fact in fact there are no whipple was any yeah that's right i'm sorry to interrupt and i'm sorry but you're right it and this counted in fact was not a party and there was no fifty four b judgment and you're right judge scudder that there may be a final ruling as to that issue but again you know to appeal does not come up to you from you know an appeal issue by issue the village against appeal from the judgment and the appeal from the final judgment brings up all the orders that were previously  entered which yes of course they resolve issues and when in order comes down you know that issue is determined and it creates winners or losers but it but the loser doesn't get to come up and visit you every time a discrete issue is resolved and that's wh complaint with a new named person it also suggests that for the cost of a filing fee you know another member of the class could have an independent lawsuit and this is a person who has taken significant steps i'll say to exhaustion hungry was by no means a token effort whether it's enough you know will somebody will decide at some theatre time that there's that there's just saying to the district judge there's been a misunderstanding here here's our motion it's fisher it's not calgary district judges fix things all the time when something very serious but that's right i think that the options that you cases maybe i'm going to borrow some of your expertise here today continue to be pursued in the name of the estate of somebody or other or do they terminate with that person's death it's under the expiration exception of the foreign sovereign immunity sect as i recall you know i think that would depend on the substantive law that the plaintiffs are serving as a basis for a coverage i don't know whether i might guess those places would at least asser that they could recover on behalf of the states or they could have filed a claim i don't know whether they you know would want to or alternately could bring a claim on behalf of miss countersuit state if that's where you're going just trying to think broadly for personal possessions like ms avallone charges kellner claimed in hungary she had this is the case with all sorts of family treasures and right that's right there but there are many other kinds of damages that they're asserting to they're they're claiming  they're trying to recover for pension funds and they're trying to recover for leaseholds they're trying to recover severance pay for mad employees they say that at least one million plaintiffs says that they had goods that were stored in a warehouse that maverick owned or controlled and those goods were never recovered and they have many different theories of loss and of recovery ok now let's you know so what if well so cutting to the chase and i think where you're going is that the hunger in law may treat these different theories differently there may be differences in hunger and law there may be differences with respect to the evidence than maybe differences with respect to the availability of witnesses right so if and i'm going to mention that right but so want to get concerns on the other side if that's right is going to be that this is you it's going to send the claims in the kind of this and let's move that they're that they're concerned about another words you're not you're not going to base it on what you just said you're going to say exhaustion is it's not going to be buying this calendar does notably right it's going to be by mr fischer and your response to that i think is going to be will mr fisher to our knowledge has an attempted to exhaust in hungary correct i think that it's the plaintiffs in the case as you said  certified class here even if the case went forward there may never be a certified class and if there were a certified class it might not include all of the putative class members who played his identifying complaint so the people who have to act on behalf of the plaintiffs now are the pla themselves so they have to go to exhaust now if you know if if a plaintiff goes to exhaust who let's say you know it's mr fisher remember they have twenty one named plaintiffs in the complaint but let's say it's just mr fisher ok he's he says i lost possessions but i don't have any i'm not making any claims about leaseholds or saffron's pay or pensions or the other theories of damages plaintiffs have let's say you know whatever happens happens in hungry he comes back here he says i you know tried and hungry i was for will arbitrarily unreasonably let's say that tissue court agrees with him let's say you agree ok so now you know under the ruling of the last fish or appeal mr fisher can go forward on his claims here he could he could then apply to be a class representative for class members who have similar claims what he couldn't do is then try to be a class representative on behalf of a class of you know pension if we just had some clarity right because that i would really we're not you know with it we're just trying to lay out to you how we think this is actually sensibly supposed to work we don't think you know quite frankly we don't think plaintiffs have have done it the way they were supposed to do it and while we recognize they're in a bit of a procedural jam again it's one that one that they created but look if the you know that as you said just kind of these are very serious crimes ok so and the issue is serious and it's a serious question of you know how he sovereign entities going to deal with these kinds of claims against it seventy some years later where there's very little evidence and you know so on but that if the plaintiffs want to test that question what they have to do these plaintiffs the the parties who brought the case or whoever's going to bring the next one you know they have to go to hungary they have to assert their claims they have to try to win and not try to lose that means you know they have to actually take advantage of whenever there's any sense that miss kelly was trying to lose in case the role the case i'd i don't know what i do know is that there were options available to the to the plaintiffs to try to uncover evidence that lawyer that if they appealed not only if fish shifting i get you know i certainly seen plenty of international geisha in that happens but sanctions are another matter but well what i what i had in mind your honor is his attempts to obtain evidence ok so you know they're you know they did not make any efforts to collect records they did not make any effort to ask the judge to collect and you think there would have been records in hungary of somebody suitcase that got stolen in one nine hundred forty four on the and unlikely that you would find records of of this suit case your honor but there may be there may be records of you know participation by nav employees taking people's property at the at the times  then maybe any kind of evidence they could claim there may be witnesses other people who were in similar situations her complaint in hungary this dozens of people who who she says were in similar situations none of them were called there could be expert witnesses there could be historians it could be whatever whatever efforts they could make to try to prove their case so that anything that comes back to you is shows essentially  effort in the hunger in court system so that you can judge how does the hunger arion court address these issues get understanding all of the difficulties with the past a time with a very difficult circumstances in which these events occurred you know the just like you are they have to wrestle with problems just like you do and they you know they have to come up with solutions and before a court of the united states says hey hungry you you funk the test you know you do you you arbitrarily or unreasonably barda remedy there ought to be some proceeding in hungary at which all of the opportunities that are made available to the plaintiffs to try to prove their case we used the pastor followed their explored you have a complete record and then you can say you know they look they say whatever they did win lose or draw for the plaintiffs it was not unreasonable or arbitrary or you can say alternatively it bringing the case it was not easy your honour's to find someone who was capable of bringing this case in hungary that we were given no direction by the brady you're right this court that it had to be any one particular so we tried to bring the person people bring the strongest and simplest most straightforward case not a case of least holding our case our rent read properties where the case of simple taking our property on the train while she was on the train and as she was getting off the train we were far from our consulate suggesting that we were perhaps going into the tank we selected the best person who could bring the strongest plane in our opinion to test whether or not we could get a fair shake in hungary she was eighteen years old she had a clear memory of the events and under budget affidavit of what had happened and as far as the invitation to go to the hungry and court of archives  archives i don't think it takes much imagination to say how long that would have taken us and for what i mean do we really believe that there would have been a receipt given this calendar for the taking of her property and they would have kept a duplicate receipt of what they took from her and kept that in the heart of a hunger in a railroad archives we felt that would be a fool's errand that would take us an indeterminate amount of time to go through the procedures that we would be confronted with what we were confronted with was the assertion of the statue limitations on the record but we were clearly confronted with something that had this court known i put it you had this court known that we would be confronted with a statute of limitations and with a procedural rule a procedural rule that would not there may be a valid claim that it was brought on timely i understood it different than that now i think what it was your honour's that a lot of the court was citing the hunger in court was that no planes could be brought for any actions that occurred prior or to nine hundred seventy eight