be applied here do we have a record as to what took place during those five or six years after the court entered its motions dismiss order out what was going on that problem was he was on his case that looks we the defendants filed discovery against the plaintiff on the sole remaining count shareholder revenues we spent the next five years conducting discovery on his claim under shareholder remedies we took deposition under his plan of shareholder remedy we did not conduct any discovery under the previous week and voluntarily dismissed claims their main take five years your honor there were a number of factors going on in this case mr richter went out of business during the intervening time period got involved with regard to some run off on property there was back way or the same time the civil litigation was going on and we were trying to conduct discovery as to whether he stopped producing milk because x reason or why reason and how long he was barred from producing the so there was his involvement with the state was going on facility issues going on i'm not complaining about mr richter all but his record keeping was questionable and it took time to go think through all this stuff i think we have fifteen bankers boxes full of documents regarding the illinois after seven years so it's like this trusting what did you do chung to move this case for where you are as i said i was conducting discovery for requests to produce through  i also was was filing motions to say look if they're not going to produce an expert they should not be granted any additional time to do this this case has been going on for so long let's get this over the something within that period of time the plaintiffs have consequences that if you pursue any consequence what you're i would have said there is no rule procedure or statute that house and people have died and documents are gone and how he's going to stop it but i will say that the judge finally did the appropriate thing work or one when he told the plaintiff after five years of litigation you're actually seven years that point time usually don't have your  the tribe were left that window open for the plaintiff to do something were sixty days i'm sure  case all we can look to the deluded decision from this court and and number of others too for that determination so instead of a voluntary just missile if the sixty days pass you know you have sixty days to amend you come in  point that was being made before was merely that at that point in time once that time period ran out and here there was a thirty day window given and then there was one hundred twenty day window and that time passed without apparent act do something like if you do something like affirmatively tell the court that he or she wishes to stand on the complaint and that would provide for a final order case that wouldn't be an immediately appealable order but that would be a final word here we don't have that there is no affirmative election for the plaintiff to go forward in that matter to stand on the complaint as dismissed what do we do with our smith case that indicated again of voluntary dismissal taken there were sixty days to amend the quote in smith that says the plaintiff could have elected as he did here to volunteer really dismissed the count because the upshot of the court's feb twenty seventh order was that the granting of defendants to six fifteen motion and these ar operative words would be considered to be with prejudice only after the expiration of the sixty day period when that indicate that once that sixty days runs that that the lead to a man within sixty days  that ok so another sixty days given in fact there were extensions in this case it's some point in time you've already indicated it would be discretionary if you come in after the date so say there's two there's two extensions and now it's been one hundred eighty days and still no amendment and even no motion for a continuance wouldn't smith indicate that the that that would be with prejudice a that at that point on or i think the answer is no crime at that point in time what the defense then do is move for a final order because what we have before that is a non final to make it  be without prejudice until they're correct because what we have here is a lead to a man or a leaf replete such that it would be without prejudice by its nature what again just was smith when it says considered to be with prejudiced the mark if the order was that the grand offender six to six or three motion would be considered to be considered to be with prejudice only after the expiration of the sixty day period so there indicate i guess personally and the answer your answer is that it's without prejudice if you have sixty days to amend at that point it would seem smith is saying when that sixty days run forget if there's a continuance for another sixt believe me and if i am cooking from mr shoemakers argument that all of the discovery procedures if there were only one count left does that play into our decision as to whether the peers you stood on the complaint that was  that is the intention of counsel i would point out that you know there were many deadlines that were extended and we had a change of counsel were it was only about nine months that the current counsel was in would have been on essentially the same topic he the original complaint the two counts that were dismissed were plain as consumer fraud and common law fraud yesterday and the theory was that the language in the agreement between the parties that the defense to the pressure from such a group their interpretation of that language in i was not there and the gist of the motion we can look to their motion is of record the gist of motion was for lack of pleading fraud with specificity and it should be over i think  give you a chance to give me a reason here as to why this would be so is there anything curious about a proposition in the was it would allow a plaintiff who well a defendant gets a case dismissed as in this case allow the point of recourse to that dismissal very you know lead to amend the plaintiff not taking advantage of what's been provided by the trial court and then after that a proposition well that would mandate the defendant to all slightly different analyses you see to follow the law one slightly different skis a lot different results than the other side does and that is looking at this war with leave remedies for shareholders as well as for  to change the venue performed on the means there was a series of motions as well as both parties doing a lot of discovery for a long period of time after new counsel got into the memory remaining time i'll talk briefly about just a few of the sports cases eat years people die every day but now they're claiming that they didn't do that they talked about the harshness of rishon this could have been solved by the pla hear what was going to happen the minute they filed their verbal requests for voluntary dismissal of the cause of action in two thousand and twelve the court was and the second time around when richter two was filed instead of finally my motion dismissed and my motion creates the same day i filed my motion freeze for one day or so it was the one of the court had to address