before the matter was dismissed for lack of prosecution there were no deadlines in place by the court on the matter was dismissed there were no prior discovery violations there were no orders requiring compliance with any deadlines at this time no warnings given to plaintiff or plans counsel that dismissal would occur should action that have been in the courts essentially this matter was dismissed with no notice to the pla or dilatory conduct or when other less drastic sanctions have proved unavailing here we have no clear record of delay granted there was a sixteen month gap between the last action and the district court in the filing of the motion to dismiss but during that time frame there was action going on behind the behind the docket so to speak and there were negotiations about expert witnesses and not a mere two days before the motion was filed cleanness counsel at the trial level sanction such as an order compelling compliance with some deadline was entered this dismissal for the lack of prosecution was the only penalty entered by the trial court  here we have all the had a lengthy time period between when this case was last up in court and when the dismissal center but this doesn't necessarily mean it's face that the prosecution wasn't being actively pursued by plaintiff or plaintiff counsel again there there was actually going on behind the scenes so to speak with there was a lot going on that's what part of the problems about whether the question of this whole problem and he has to deal with usenet i don't know when that would start but it seems that this is just that there was a lot of signals out there especially a guy that's got that kind of money depending on that he would mcmahon should have known to file a lawsuit against his financial advisers now that is laid out in the the kind case which is actually about the same type of scheme it's a hell of a case where discovery role was applied when the notice of tax liability was issued of course that's that's the end zone correct you know that's it's not a good it's pretty bad and once that happens now you had to have to react and you have to do once it's on your own defense the whole way when the set happens and i'm just looking thinking about what occurred in was about five years or something yes the audit was implemented in two thousand and five and i know it's a tax liability came down in tw ten and then they filed this lawsuit in state court twenty twelve which under the kind case would have been within the statute however the district court to play a different standard from the anything he would get caught you simply wouldn't detected or something and i'm sure to it's a pretty big deduction that it is and it's a lot there was a lot of money at issue in this tax liability it's well over a million dollars to  best of my recollection district court ever give you any kind of opportunity to explain the delay and say there was a great deal going on be hind the docket didn't get it to court give me a chance to explain it unfortunately i was not trial their electricity record trip the record is unfortunately silent as to what was going on behind the scenes in that sixteen months there is no what is the record silent on whether the district court gave you enough for your side of the trinity to explain this problem there was a response filed to the motion to dismiss for lack of prosecution where trial counsel asserted that things were going on behind the scenes and that the e mail was sent out two days before the motions filed trying to get the matter  there was the unfortunate passing of mr goldstein took place during that sixteen months time period which is one of the defendants and a key witness die exactly yes which that delayed the proceedings further  given before you can dismiss a matter for lack of prosecution there needs to be some clear pattern of dilatory conduct on the record is silence for a sixteen month period there was no pattern of discovery violations that took place before that matter there was no missed court dates that took place there was just a rather large gap time admittedly between when this was in court the scheduling of arbitration and the filing of the motion to dismiss for lack of prosecution  what about other persons who are i don't know how many people invested in follow this advice were things going on with others said lang paying the nine setter are a lot of activity i don't know how many people were involved in this do you you know to my knowledge i just did a brief bit of research on what it's none of us to actual tour was before getting involved in this matter myself and i think there are something like six active s us litigation is going on in various courts right the country right now according to wikipedia which i know is not the most reliable source but my client is hard some judges rely on education of the rule and lame tasks him with the knowledge that once the audit was implemented he should have known that something bad happened just he was being audited because he is a wealthy individual significant deductions  part of that as well is an affidavit filed mr mcmahon and interestingly it talks about that they were allegedly behind the scenes trying to get an expert an expert i submit was not necessary in order to commence an arbitration which had been ordered in december of twenty thirteen and other than rudimentary conduct contact in february of two thousand and fourteen trial counsel was not consulted again until december of twenty fifteen and the reason that mr mcmahon offered as to why he did our brief the court's than the fact that you may not have money to commence the arbitration is of no moment indeed the court said once a party invokes to do  filing a lawsuit it must abide by the rules of the quirk a party cannot decide for itself when it feels like pressing its action and when it feels like taking a break and that's exactly what happened here now the standard for reversal here is an abuse of discretion and this court has articulated that in the context of rule forty one b that means that this court must find that the district where it what is the district court have before it at the time it had a plaintiff who was ordered to arbitration yet did nothing absolutely nothing for sixteen months and this was in a matter where the operative facts dated back to two thousand and two thousand and one at this point this case is eighteen years old and the operative facts hinged entirely on statements alleged to be made by mr goldstein indeed this was a fraud and it was a it was a negligent misrepresentation case and so the complaint says mr goldstein told me x this was not a case where there was other evidence and to top all this off and complete the picture mr goldstein passed away during this period of an action the district court set forth the standard in or a light if we look at the decision it clearly motion might be in the offing and the fact of the calendar and the prejudice now the district court further acknowledged that even though the plaintiffs did not fail to comply with any expressed deadlines they were aware that they were compelled to prosecute the case in arbitration but that plaintiffs counsel acknowledged in his email to t b s as counsel it has been a long time since we have communicated here the delay cool guy with the prejudice with ample reason that the district court dismissed  and we would urge that this court affirm thank you that is alleged injuries were allegedly wrongfully caused by the defendants and his lawsuit here is on time so by two thousand and two big man's accountant told him on the bank expressing concern that the iris might discover big man's involvement in the son of boss shelter and instructed to watch a bank not disclose his identity to the i r s would in context is that him before the special impatiens lapse so it looks as though he was hoping his participation here would not be discovered and so his tax counsel is writing to door to make it it's unclear as a district court found under what basis and the ocean receive the tax shelter and to the extent he was bringing claims that he was told one thing in two thousand two thousand and one it's now been contradicted all the elements of his claim are available to him he paid fees for this tax strategy and that's among his damages so we're saying two thousand and two two thousand and four it's so easy to see that even under discovery rule his hi shelters ernst and young the district isn't gilcrest law firm blew up office they don't exist anymore so there was a lot of press out there but in february two thousand and five his own counsel and his in the record you very briefly your honour's with respect to the dismissal for lack of prosecution the only opportunity that plaintiff was given to respond was in responding to that motion to dismiss for lack of prosecution i would emphasize that there were no deadlines in place the court simply ordered that this matter go to arbitration with regards to the discovery rule the district court initially disagreed with this thought that