thank you your honor may police courts counsel we are here your honor i am representing a german manufacturer of a component part mr olson is representing the manufacturer of the machine that was involved in industrial accident we are here on the appeal of a rule forty one a two voluntary dismissal by the plaintiffs it goes without saying but rule forty one allows a voluntary dis missal after nasa has been filed with permission of the court there are some criteria the court must look at this circuit is has a well established set of criteria found in a number of cases  including the ham case the pace case the seventh circuit case but those criteria were not followed by the district court in dismissing this particular action and there was no curative conditions on the refiling of a suit which is also a requirement  hearings both the hearing to continue the original deadline was not conducted by mr mcmanus judge mcmanus it was conducted by the magistrate judge schools whose entire transcript of both of the hearings that w yourselves not only that your honor but he exhaustively we believe reviewed the issues before the court and gave a very reasoned decision in both of those matters which i might add your honor contrasts with the great brevity that justice big menace delivered when he'd disk the action and we believe that of course is the crux of the problem is just mcmanus obviously did not agree with this around a long time i think it will turn ninety five next  depositions i'm not somebody i am not here there and everywhere so i would leave to my colleagues to tell you who was everywhere taking depositions with the other side but i was fascinated that i never had a practice like that i never got to camp and i got to rest city once well right frankly i have a hard time taking it seriously well your honor i appreciate that fact but i must tell you that this case is very important but it's personal and it's a big case this man lost one he was very severely injured his a horrible thing that he's still alive both arms were crushed it was a very difficult awful terrible likes me waiting for the lawyers to get the case ready for trial he has your honor but if i made to your point it's very significant because this is exactly the type of case that is necessary for the litigants not just because it's important because it's our case but because the district court judge absolutely unequivocally did not follow this court's precedent didn't apply this don't go back to ground zero we have the matter emad it back to the court with instructions because this is an abuse of discretion standard this court can remain and it back to the court with instructions to take the matter up exactly where it was before said new perspective deadlines and have the case question for the reason judge moments well you certainly could if you felt that was equitable but you wouldn't be following your own precedent with regard to rule sixteen and you wouldn't be following your own present with regard to rule forty one and i don't think there's any  there's nothing locked in stone the secret wish well that's the case by case hopefully get it right that's true to certain extent your honor but when the court refuses to even look at the tests that are well established and if this court were to review it you'd have to follow the same standards that apply when you file a motion to dismiss or either before or after a deadline is run and whether or not it's good cause or excusable neglect and under this record there's no question that the court judge schools got a ri judge mcmanus got it wrong there's no question in my in my mind i do think context is important which is why you know in our briefs we do have a section that's devoted to that particular issue but in this particular case deadlines were extended before motions were filed before deadlines were extended before when pressed by the district court by the deadlines weren't followed in this particular case on page one hundred sixty two of the appendix claims counsel just says it was an oversight given that and given that there was no reason when the original forty one a motion was filed there was no reason given at all for why there should be a voluntary dismissal and i think under those circumstances this court would be bound to follow the same procedure that the district court did or the magistrate court did or the magistrate judge excuse me with regard to the standards for rule sixteen and rule forty one a two seems to me you're overlooking the controversy if you will about whether whether a rule sixteen is somehow constrict the discretion  generously exercised under the discovery and we've been back and forth other courts have been back and forth about when when does the scheduling order which is often set arbitrarily at the outset of the twenty six and thirty seven it's not so clear that we just took this will by the horns so to speak before i lay to rest right although there is some tension between the rules with regard to the ethical principles to have the court conduct its own docket and set deadlines that are appropriate there's no question that there is not that kind of tension or discretion when the deadlines have been missed and then the motion is filed here in this particular case you know over a month after my time's expired i in voluntary dismissal those factors the judgment man a should have taken into consideration i'd like to just briefly go through those because the they do seem view of interests of the court one would be the effort and expense the defendants have incurred in this particular instance i w as the initial of titian this action was filed in september of two thousand and twelve the matter was then removed in december of two thought december thirteenth two thousand and twelve to federal court with the progression order and february fifth fifth of two thousand and thirteen that's that initial time initially a deadline to add additional parties of april first and original plan of sexpert deadline of may first two thousand and thirteen on that may first plaintiff did at that time move to extend expert deadlines which was extended to that july first two thousand and thirteen date it was then thirty nine days later on august ninth two thousand and thirteen that plan to file their motion to extend its dand their expert deadline which was again after that after the deadline it already that discovery up until the time the case was ultimately dismissed in november of two thousand and three to identify the discovery that won't be usable in the new state court case i'm sorry identify the discovery that this wasted effort because it can't  usable and it was never answered in that case to a campus so it couldn't be used because it was never answered in the federal court case at all in the state court case that they've subsequently refiled there was additional discovery when you were talking about the wasted time then well defen again we retained experts we subpoenaed records from cambridge those are all things that you know yes could they be used in the later case or in subsequent case yes they can but there again as one of the factors of the effort and expense that we incurred those are things that the that the defendants did do i mean these were those were efforts by them defendants answer discovery in the federal court case we produced a box with thirty five hundred pages worth of documents ultimately there were motions to compel that were filed after the issue of the expert discovery was even resolved by magistrate scholes but even before that we had answered discovery produce a substantial amount of documents the second one was plaintiff's diligence or lack there of plaintiff had issued discover third is the plaintiff's explanation for seeking dismissal the request for dismissal was filed the day after magistrate scholes denied their request to extend the deadline for experts and there was no stated reason there wasn't stated reason of additional in the transcript of the hearings that i think it's pretty clear and products cases like this without an expert summary judgment something that's going to be there out there coming the one thing i would point out in the court of dad i had asked mr or mr helton  so if the court finds it excusable neglect under these excerpt from stances that it's difficult to imagine circumstances work excuse when the collect would not be filed and i think that's clearly here i mean that there the difference in this instance was move the motion to dismiss was after the expert deadline had run under that once the expert deadline had run its a higher standard in this case it was just mere oversight which was not excusable to neglect and for that reason that we we believe that the matter should be remanded back to the district court with instructions to give me the case in this order or any other where the leeway the plaintiff asked for for thirty nine day stay was granted and then reversed on appeal i don't know that i could give you that and yeah i don't know that i could give you i mean all these cases you all up to because invariably we a purports to trump rule thirty seven that doesn't mean it was it was an abuse of discretion to basically throw my of out of court nobody in this instance i i think our argument is we didn't get a ruling on magistrate judge school i promise you we don't have the ruling and our and our problem is that the judge just sent out a one line order dismissing the matter or more longer than a paragraph without taking these factors into a man's ruling because based on a fair accurate and complete review of the facts and circumstances before judge mcmanus he was well within his discretion to grant the motion to dismiss without  your honor i think you did the clear there was pending a motion to appeal and judge told ruling that there was also pending a motion to various motions and i think when he looked at the record and the judge schools made in motion to compel he simply decided that the case was appropriate for a dismissal without prejudice because the case was mired in says the case became entangled in discovery and procedural disputes therefore i dismiss it yes or at the plaintiff's request one of the in tankers you tell me you give me the case that's on all the where reasoning anything anything like that but i don't have that reasoning just strikes me is i'm sick of you guys and just in your head i don't think that i don't think that's consistent with dream court telling us we have a unflagging obligation to exercise federal jurisdiction your honor if anyone made a mistake in this case it was me i took too long to try and resolve discovery disputes with hankel pickle was the manufacturer of the men in the machine this is a complex not unique but rare machine and what with the injured bill mullen as i explained to judge scholes in november of two thousand and thirteen was a complex failure of in a related hydraulic electronic and computer designed systems overall the entire machine was something called an east op when the operator hit the big red button which was called the east op it was supposed to cut power to everything the motor that rotates the big bowl and the hydraulic machines the hydraulic motors that move the ball in and out these systems are all interrelated there are not one but two computers that that control the machine the p l c is a hard wired programmable logic control that runs the machine then there is a desktop computer which was installed by a company called complete computer applications and maintenance and the camera's employees that computer told the p l c how it wanted to make the next backs a batch of pharmaceuticals but regardless when bill mallon pushed the east up he believed he had d n r gys the entire machine he opened the housing and he started to change the filter this case got stalled and this is not an excuse this is an explanation because i share the court's frustration it is not in the plaintiff's interest to spend a lot of time on discovery disputes objections to every request for production and frankly thirty five hundred documents which were disorganized they were not identified and neither i nor our engineer could make heads or tails of most of them i waited too long to give them an opportunity to try and  these problems i've had enough federal magistrates look at me say can't you work this out and they they are right we have an obligation to do that but that is practically not what happens in the real world today and that is not the cause fault of my clients the practical ramifications of what hangal did in this case were to delay delay delay three to four months and then stand here with a straight face and tell you we should be entitled to prevent the plaintiff from having an expert because we decided not to answer in iraq or tories or respond to requests for production in a reasonable way until judge schools told us in november you better produce this because the days of hide the ball in ambush are over and i regret that it took that long to bring this issue before the court but the record should  also point out that the plan of simultaneously files several motions a motion to have regular discovery conferences every forty five days so that we could stop this stonewalling and get things motion are moving excuse me a motion not only to overall this is trial court stuff i understand you're on but i think what i'm trying to point out your honor is that the record demonstrates the judge and mcmanus had before him far more than just some simple thirty nine day and so did judge scolds and if you notice the difference in the transcript of judge bowles at the motion to compel hearing i think he became convinced that this was more than just some simple neglect or garden variety neglect as counsel likes to refer to recall you were trying to find somebody but it's hard to find an expert for this type of situation without your problem your honor you can find experts on everything and you can spend a fortune the problem that we had was and i tried to articulate this before judge scholes is in federal court one cannot just name an expert who has opinions that the the expert has to have appropriate foundation and appropriate expertise in the opinions what was unclear until recently in the discovery in state court action is how the machine could possibly close with the he stopped engaged and the only company that had the information originally was hankel there's another company that service the controls of the machine that was cam and they are a defendant in the state court case and there are i would corp so that would have defeated diversity anyway so going back to the situation before judgment man has he had a mult he had a long  motion to compel hearing that his magistrate had had listened to and and ordered in no uncertain terms that this case get moving in that the manufacture produce information now as i understand it the magistrate judge a member for hearing i think what you just heard to flag the possibility of dismissing this missile and refiling for days before the district court did that are we supposed to think that is going students or not your honor i would not presume to speculate on what was going through judge schools mind but i think that that that may have been his thought process and i don't think it's an  prompted by your motion which came one day your motion to dismiss came one day after he said you don't get an expert but your honor ok point am i got this i got the sequence right honor with some if i can if i can at the court should also note in the record that the plaintiff filed an extensive brief in support of the motion to compel the assertion by defense counsel i don't doubt that but there was plenty of explanation for the reason for the motion to dismiss and it was right in front of the court in a brief no no no no this hearing was two months after the motion i understand you're on what i'm saying is that the judgment mannus had not only the motion to come to dismiss without prejudice but he also had a fourteen page brief with exhibits supporting that motion which did explain in detail including the addition of state court defendants including why the delay in discovery had been so  exhibits i'm sorry your to the other side respond to your exhibits i don't believe so your honor they simply father resistance and i don't believe they they argue the exhibits with any of their own so your honors i think it's only with a myopic and selective view of the record can we be that if i may critical of judgment mannus i've tried cases in front of judge manis and he is certainly an excellent judge in my view  but one who is brief and to the point and i think his ruling opinion dies as the reasons for his his granting the motion this case is mired in discovery problems and procedural problems and i think it tells you he wasn't willing to simply exclude experts what's the most analogous a circuit case for dismissing because it's mired in discovery  i'm sorry your honor what's the most analogous a circuit case were a district court dismissed because this this matter is mired in discovery disputes i can't answer that question hundreds i consider i mean that's just not kno that that's not a but i don't think that was the sole reason your honor i think and the court had in front of it the plaintiff's explanation that they were about to add a state court defendant or scuse me a in another dissent is easy i mean you we received his ruling and i was that he reserved ruling on the two motions until after judge scolds and heard the discovery dispute and got more information and then we receive that r your honor i don't want to overlook the fact that judgment manifest i just i'm particularly troubled by the defense counsel's characterization that judgement mannus didn't think about any of these things or ignored the might there is no support for that although he wrote a very brief ruling i agree there is no indication that he failed to read the briefs that he failed failed to examine the record before he made that ruling and was certainly well within his discretion  as a district court judge you know i want to go back to and i have this is probably an inverse order but one of the things that i wanted to address quickly and i have very short time is the defendants claim that they were prejudiced because the four current factors of course rule or govern whether or and it was someone that they had hired priests who they hadn't taken any depositions they hadn't deposed the plaintiff they had interviewed other than their preliminary investigations in other words nothing had really progressed and  for my part in that i apologize to the court but i'm not the only reason without appropriate foundational facts and engineering documents and an explanation of how these control systems interrelated for the  plaintiff to have simply named an expert and not had been read and was not ready to provide a detailed rule twenty six report would have been inviting a daughter hearing that would have been a turkey shoot and that's precisely why the defendants didn't provide the information because they know without appropriate foundation you can call the most competent expert in the world in the field but they can't give reliable opinions without the evidence and that's one of the reasons we have the discovery rules and why they're so important i think the court pointed out i don't think there's really a conflict between rule sixteen and and between what happened in this case i think that we often get very mired down in the minute of scheduling orders and the procedures that we have and they're all important obviously but the overall purpose of the court is to do justice and to give the parties the opportunity to try their case on the merits and at the risk of being outside the record i've known judgment manager for a long time and i have adult i think that's exactly what he had in mind when he made the ruling that he did i have a very brief time left and i would  i guess maybe that's not something we should think about if you affirm judgment mannus then the melon stay in state court can move forward with this governing which we've already it's moving better in this case and judge drew has handled a couple of discovery hearings already is it is it clear there's no removal fraudulent joinder issue there now yes or not it's gone yes the instate defendant cam has answered there in iraq or tories and produced documents which were very illustrative of why and how this happened and i think in the case of moving forward speed factors about a dozen depositions now set for the next forty five days it is cam related corporate  to thank you our just want to point out one thing that was brought up previously was as far as what just a school or what should schools was thinking in the appendix of page one ninety eight  going forward because you won't know what the resolution of that motion is to dismiss until some time after these issues are resolved as i understand it so i think that's somewhat illustrated of as far as whether it was some kind of a preamble or  trying to tell the tale judge mcmanus something the the but he off the but he then ordered for this latest report eighteen days later exactly he also sent us away to have to have a meeting can for a conference so i don't think he had any indication that was going to happen the other thing is that put israel proper cause of action here would have been to prior to july first file a motion filed a motion to to continue that deadline once that deadline