dismiss because appellant did not file a timely title seven action in federal court within ninety days of receipt of the e e o c right to sue letter and there are no factual circumstances circumstances that warrant equitable because i i would just be upfront with you i'm very skeptical of your your argument here but the court i don't know the name of the how i state courts but whenever that court was that the plaintiff filed the action and that court had the power to decide the case provided that your client waived its sovereign immunity so it's not like a situation where for example the claim could only be brought in federal court and so no matter what happened in state court that court would never have the power to adjudicate the dispute right here on earth then you've hit on the right point if there's a waiver now we're talking about here a defendant that's the state of why the only defendant this is a title seven action there were no state claims there were no other internet the court made the same point you know that there was no waiver by the defendant i mean there was no indication in the record one way or the other as to what the defendant's position was the court just observed that the venue proper venue in that case there was jurisdiction concurrent jurisdiction both in state and federal court for that particular federal statute so to hear there was concurrent jurisdiction in the sense that if your client was willing to subject itself to have jurisdiction in state court and you remove it and the court that that's what i'm saying you could waive your sort of your fine could waive and then remove it if all you wanted to do was get in a federal court that's what you could have done there's no supreme court said prejudice is not an independent factor that you must consider you must first fight equable tolling and i have been informed this court very recently in january of this year the us supreme court and would normally indian pride provided your question is jurisdiction in this case and she filed in the wrong court and she has not provided any evidence to show why with due diligence she couldn't figure out that you have to file in the federal there was was there any evidence and dreamed you would have this much argument when you didn't have an opponent showing up you know your honor i just let me let me ask you a question you know we're talking about equitable tolling yes your honor there's no doubt that a mistake correct for now in this q c this is unlike the as well a case where it's almost the same in the fact pattern but there is a court held there distinguishing factor one yes you're dealing with it privately to get bored there's apparently apply here and i'm not blaming you for this i'm blaming the judges generally that we don't have any crystal clear path of analysis now what i have in mind is for example in burnett which is a supreme court case which we always file it says the filing must be in a state court correct competent jurisdiction that seems to me that clear but you look at our case involving the whale and then we say the test is they have in common is that they made a reasonable mistake now no no court that i've been able to find so far and this is my question to you has really done what i think is necessary here is for the court to sort of digest what all these courts have done and to come up with some analysis that you and other people can say this is how we're going to deal with this problem now that's sort of a little different analysis now i'd like to have your view if you were going to write this decision reviewing the district court and having in mind the conflict between burnout and and balance of weyler what is our frame of analysis where would we say this is what we must look at and therefore the result is that it's ok your honor you've been moving from these different cases but we can't do that we've got to say this is the law and how we're going to rationalize burnette and and value and waiver which are in some conflict ok you're under thank you for allowing me to virginia i go back again to  mistakes area you feel the district judge has has completed that because he asked for some findings and he didn't give any reasonable rank your honor like the mistake here is not reasonable given the fact that the court in the district court in this distinction is not persuasive for me i'm asking you under the two prong test that you just cited how does burnett come out the way that it does because there are two i assume you can say that the plaintiff had that person bothered to do read those cases and then but i want to move to another subject for just a moment yes we're really hampered by i mean you've done a splendid job but it's always better to hear two sides when you can make a decision we've been hampered not attending and it's a very complicated case and as you know and as we have found out during our discussion with you i want to find out whether you have received any notice at all from your opposing attorney as to whether she was going to attend today you know your honor i have not and i have attempted to contact her personally and you know no calls back ok it's not even an answering machine i didn't receive anything and we have provided her with ou r submissions to the court by mail and by e mail and we have not received any response was the type of conduct we did not expect from counselor to appear before us and sometimes when there's a reason we take action i suspect we'll have to look into this further appreciate your giving us that advice thank you no one is good thank you very much for your argument which is very helpful and the case just argued well