thousand and seventeen the failure of timely serve the defendants was excusable while federal you advance a good cause what was the good cause that you advanced to the court it was due to the attorney assigned to the case was not actually signed so we did not have a proper summons that could be completed and served the reason for the delay between march and october of two thousand and sixteen was because of unrelated issues with  understaffing in the office and with the attorneys assigned to the case that's actually not good cause i understand that and that's why we had really moved more under the discretionary standard with the for profit test as compared to the two prong standard and eighty two thousand and seventeen and during that time that he was out of the office there were no other attorneys that word minutes in federal court and there was a change over in the staff so to indicate that something needed to be done and as part of the for profit why did you need a lawyer in mid to federal court in order to effect service you don't need a lawyer in minutes a federal you don't even need a lawyer and usually it's a waste of money to get on board in order to serve it that is a domestic dispute it can be a contract dispute can be anything so i don't know why you need a lawyer you don't need a lawyer but you need a lawyer to give the staff instruction unfortunately because the staff does not unfortunately undertake its own decisions you know effectuate work that they're not told to do and at this time there was also a change in the staff as well and  it had gone down from five employees to four and then ultimately three and it wasn't until june of seventeen that they were able to hire additional staff and unfortunately it wasn't until the courts notification in july that the case was reactivate it within the late service the st would be whether or not the statute of limitations would suit the plaintiff i don't think that there is any disagreement in this case that that would occur here and in the event that the incident occurred on or about march two thousand and thirteen the summons was served on march th two thousand and sixteen leaving just approximately two days within the statute of limitations for the claims assert it so that probably would go in favor of the plaintiff nd prong would be whether or not the defendant had actual notice of the claims we submit and the county actually provided in their original motion papers a copy of a notice of claim that was served on them in july of two thousand and the defendants attempted to conceal the defect in service obviously because service was a number of factual to begin with accounting or any of the individually named defendants have failed to appear so there is no allegation that there was any attempt by the defendants to conceal service or any defects in service and th it would be whether the defendant be prejudiced by extending the time for service and given the fact that they were fully aware of the nature of the claims  and the allegations and including the date and the incident there is no prejudice to be claimed by the counting itself in relation to these claims so on that basis and his opinion just about also did indicate that although not good cause that that period of time that mr sorry was out due to the unanticipated medical surgery that that in effect was an unanticipated event that could be credited as a good cause showing albeit the remaining period of time with the failure of the law office and effectuating service would not count so based on all that we would ask the court to overturn judge best decision and grant the plaintiff application to extend the time for service to be and to include july good morning your honors may it please the court my name is adam maass i am a deputy county attorney at the nassau county attorney's office i am here today on behalf of defendants police in this matter your honour's as has  been discussed there is only one question that is presented to the court at this time did it judge spat in the district court abuse his discretion when he ruled to dismiss after a sixteen month delay in service from the filing of this case despite the fact that rule four am states that service must be affected within ninety days far from this being an abuse of discretion judge spat issued a well reasoned clear decision and he took into account in that decision and we'd the effect on all of the parties from reaching the decision that he of discretion ordinarily unless a colorable justification has been offered by plaintiffs judge spat found and i quote in this case there has been an absolute lack of any justifiable excuse advanced for the multiple failures to timely serve and without going into the entire record i just want to be clear on what judge spat looked at when he issued this decision there was an initial failure to serve within ninety days the essentially plaintiffs had a nd bite at the apple at that point despite all of the prejudice that had accumulated in that six months to the defendants and general office failure was offered as the excuse at that time by plaintiffs and they indicated in a letter that they would quote expeditiously serve as soon as plaintiff's counsel just mentioned the summons was corrected and issued while that summons was after a and in that time service was not affected and that's really where the issue in this case comes into play and even making matters worse judge wax lawyer by order to show cause asked plaintiffs to demonstrate why the case should not be dismissed and a full ten days passed before the service was effectuated at that time that was sixteen months of delays in total at that point now this court again pursu suppose is well aware that within the district there can be two circumstances where an extension will be granted one pursuant to rule for is where there is good cause in fact the district court is required to grant an extension where there is good cause appellants counsel has indicated an argument that there was a good cause was essentially abandoned in the briefing on this case and that's because loftus failure does not constitute good cause and good and law office failure is  conceded in this case so rule four am also provides for a discretionary extension as has been discussed now judge that there are amongst the criteria in addition to the fact that this court looks to determine if there was an abuse of discretion whether there was a colorable justification offered and in this case there was no justification offered and just a final thought on the on a colorable excuse advanced judge spat look to precedent in the eastern district and defect quickly that clearly did not happen here the other issue that this court looks at in determining whether there is an abuse of discretion is whether the district judge took into account in a case like this where the statute of limitations would bar refiling the prejudices that would be visited on the various parties and judge that took that very seriously he weighed all of the circumstances there is a four part test and he conceded and he noted in the opinion of course there is going to be prejudice to plaintiffs here perhaps more prejudice to the plaintiffs because they won't be able to affect their cause of action based the attorney's mistake in this case but that's not the only factor considered by the court there are other factors one is is whether there was a color colorable justification the other factors are actual notice and prejudice and in this where  she was the only one see she was the only one but none of the claims her specifically against her she was off duty at that time she was the complainant in this case she wasn't the arresting officer he was arrested for choking her that's correct  testified that the criminal from the records in the criminal trial as far as the county understands are under seal of the county and that was one of the issues that judge spats said would prejudice the county in this case even though the prejudice to the county was slight the notice of claim didn't come into the county until after the trial so they would be limited in terms of their investigation at whatever happened in the criminal action of the criminal trial but that's right the notice of claim came after the notice of claim in this surveyed in the complaint have to do with false arrest false imprisonment excessive force none of those claims would have been against her specifically it would have been the officers who arrived at the scene on that day and perhaps the officers not only her he broke his ribs he wasn't  claim against her there was a claim against her as well but for a number of the officers that most of the claims would have pertain to to this day they still would have no notice of this action also the notice of claim  she ought to have been served and runners i do want to point out also in terms of the prejudice to not just to the county but also with respect to those  officers dischord noted in the pot of st of all that it it's up to the district court the trial court who is the you know here's the facts and understands the case to determine if there would be prejudice to those individuals and to the county given the circumstances of the case judge that made that determination he weighed the different prejudices there was a sixteen month delay here and in the part of the court did say by the way that it's obvious that any defendant would be harmed by a generous extension of the service period beyond the limitations period for this action and we were now a year and a half beyond the limitations period and the court added there is a part of that's especially true if the defendant had no actual notice of the complaint and none of the defendants had any notice of the complaint for sixteen months i have as a final thought your honour's in this case or i should mention in the courts and even where the hardships might in fact tip in favor of the plaintiff when there is an absence for a good cause for the delay when it should be noted that no weighing of the prejudices between the two parties can ignore the fact that the plaintiff created the situation and that was the case here and judge spat carefully looked at all the prejudices all around and determined not the case should be dismissed accordingly i think you honour's a few points it's my understanding that the council's argument that the case against our client the criminal action was sealed is not in fact true because in fact in this case detective archibald had actually initiated a civil suit against both plaintiffs for the allegations that she alleged assault against them and that was done during the pendency of the criminal proceeding and that the that matter was unsealed as a result of that civil action additionally with respect to the john doe officers obviously given that the fact a complaint was filed which is today's the statue of limitations was unlikely we would be able to amend to include any additionally named defendant so the waiver of any additional name john doe police defense would