good morning may it please the court there are two actual matters before the court this morning one is a motion to dismiss the appeal filed by the defendant based on rest judicata and collateral estoppel regarding a subsequent state court regarding rulings of the district court regarding the diane corbett as personal representative versus manicure inc and subsidiary defendants i will address the motion to dismiss first i put forth in my objection to the motion to dismiss several arguments why this appeal should not be dismissed as a result of collateral estoppel and your rescue to the primary argument unless you want me to discuss estoppel which means that the state court judge excepted the trial court's decision from the federal court case regarding the statute of limitations and therefore the state court case was never is currently on appeal i should clarify and we did have oral argument on aug sixteenth of this year in the state court of appeals and we are pending there's a decision pending in that case  based on not serving the subs on time but the dismissal of the subsidiaries was based on not have not on timely service and the motion to amend that was filed by the plaintiffs in the federal court requesting leave to amend the complaint because the statute of limitations had not run according to plaintiff's position shouldn't that this will stand it looks as though there was a lot of time to find out then counsel invited you to to to to serve them with the waiver and nobody followed up what happened and i would could give a variety of answers your honor but frankly i don't know in my mind i thought that the issue had been resolved it obviously hadn't been and and i i don't necessarily i can't offer the court any any reasonable explanation for it other than i don't know what i thought of like what the case was about at that point was two weeks of poor nursing care resulting in bedsores but not at the proximate cause of the stroke that presented by the defense your honor the plaintiff's case established the underlying factors of the case established and that were presented in the objection from motion for summary judgment that this woman was only sent to a nursing home the goal was just per couple of week because the lady out of their thirteen days since referred to a different facility however she was only to be placed in the nursing home for two weeks not because of her own physical care but her primary caregiver diane corbett the personal representative  this action herself needed surgery that's that's not really my question what i really want to know is that manner care or any of that have the old lady in there in their care for more than thirteen days and was there any medical evidence that the death was caused by what happened during that thirteen days of error varied render care no your honor but the woman mrs laos had the bedsores until her death and under our where your damages aren't that great and it's an expensive case through litigation because of the need for medical experts the right to defend the thing concept of service you have kind of an economic problem with it well our position is that she wouldn't have even had to be transferred to the second facility had they taken care of her had she never got the bedsores she would have returned home in two weeks on the motion to amen answering your last question first yes that was presented to the trial court judge at the state court level and he didn't except that he ruled that the judge early decision on the statute of limitations was collateral  judicata he never gave an opinion of any detail other than that your first question was had the supreme court city of tucson vs clear channel case been decided at the time judge byrd was considering the motion to amend i would i would think that he would have had to accept that but th going back the first thing with the motion to amend is we didn't get to trial five o five immediately to judge perry denied the motion to amend because the statute of limitations was two years is what his decision was and so since it was post two years th not we can't accept now rationale or that ruling for twelve five o five basically if you if you stated it only applies to on file claims there's no purpose for twelve five o five see it would never apply to anybody and they couldn't takes effect which would have been in september and your your your action wasn't barred at the time that the amendment took  so that the cause of action would have accrued an april of two thousand and three and so the statute took effect in september of two thousand and three so my claim would have been barred had i filed in on the date that that statute became affective defense could have argued if we didn't have twelve five o five c an arizona then my statute of limitations was barred because mrs love's was in the facility in april of two thousand and one lawsuit and then the legislature changes the law so that the statute of limitations who shortened and all of a sudden you're late well what happens now is you're not cut off where you would be if the new staff who was all there is you don't get the additional six months that you would have had under the old statute of limitations instead you've got one year from when the amendment takes effect but it looks like that then you're faced but i don't know if i understand that's right well i think the six month statute you talking about your honor is that there's  statute of limitations then the legislature shortens the statute from two years to one year that i think is when you get your additional year my superficial reading of the statute if i got this right you no delay in getting the case going or even prosecuting the case so the the judge then measured the two year period from the time of which you filed suit which was april of two thousand and two which was one year after the cause of action aro and my interpretation was as he just strictly applied to your statute he didn't though the issue of twelve five zero five c did not come in till my motion to reconsider brought up the issue of the change in explained clearly that the statute does not apply to this case and the reason why it does not apply to this case is because as we discussed earlier this action was not barred as of the date the new statue of limitations he came effect the statute we're talking about was intended to apply to situations in which someone has not filed an action and they're sitting around their office thinking they have a seven year statute limitations the legislature changes the statue limitations and shortens it well under most arizona cases in under the statute what that could possibly do would be to cut off somebody from following an action before they really realized they needed to file their action read in any wise clear channel closely the same reasoning applies to seen recently the judge very applied all of that survived what the supreme court did in the clear channel decision what judge perry decided was that because this action was on file on september eighteenth of two thousand and three when the new statute limitations became effective twelve desh five zero five c did not apply because the statute  law would be barred when the amendment takes effect when this amendment took effect on september eighteenth of two thousand and three the action against the subsidiary defendants were not barred they were on file is if i remember correctly plaintiff timely file suit against the parent and all the sobs if you don't know exactly who threw sponsible for this nursing home she's too small everything's fine limitations the district court dismisses the action against the subs because of failure timely to serve the sups everything's and now still fighting against the parent and the subs are gone even though there was no limitations problem they were sued on by now she tries to amend to get the subs back again in order to start the time for serving them over again and the judge says you can't bring them back in now because now the suit is barred by limitations so what it's really all about is an attempt to double off on the time available to serve the subs well it's not it's  days and they get dismissed you get another hundred twenty days if you can drag them back in is that is that what we're talking about in terms of the stakes well the stakes are basically that the action was dismissed for the reasons we've already talked about which is because they didn't serve not only within the hundred twenty days it is from for nearly nine months until to scupper he was closed and dispositive motions were filed then the issue pops up and they suddenly realized oh my goodness we haven't served the parties that we had been told other parties that are responsible for the conduct issue i keep in mind the record shows that in the context of this case even then it came about because men are care the parent company disclosed to the that actually operated the particular facility in this case it was manor care there was own so the plaintiff knew full well exactly who needed to be named as a defendant in the case and who needed to be served that didn't happen and then when the understood the purpose of my question because i didn't tell you the purpose of the question basically as i understand the recent supreme court decision i think it was heritage have versus pioneer but i can't remember for sure we're supposed to cut party some slack on excusable neglect that we were not required to cut slack or before and that affected as i recall our decision and pick a verse of sanders in a somewhat different context but i would think it would affect this context too so at if all we're talking about is cutting a little slack on hand and the lay it's pretty appealing but if you're supposed to serve people in four months you're off they have their peace and that they can take goodbye to litigation and goodbye that their lawyers felt you're not supposed to get eight months you're not supposed to be able to double that so i want to know which kind of case this is a cut  a little slack case or i want to get eight months instead of four months case i respectfully submit it's not a cut i'm a little bit of slack case because as the record indicates this is a situation the plaintiff knew with the plaintiff had to do i even offered to  waive service all i needed were the forms to be sent to me from the plaintiff's attorney and i never got it and there is no explanation for why are terribly authority of the time on the roof for you to have extended the time for service it is the president's existed arizona there is a set of procedures that the district courts adopt that pertain to new parties brought in designation of non parties at fault disclosure in everything else and if we had brought in that additional service i did offer consent a service that was eight or nine months earlier we still had time to do what we needed to do are you saying you wouldn't have been the lawyer for the sub no i would have been a lawyer themselves but you've been in the case from the get go you've been there for all the one hundred fifty days and if we had brought them in at the last minute that would have at least open up the door to the possibility that we would have had to kick that the discovery seemed to be more specific and try to look at your case certainly explains the possible  matter what would have been the difference and the handling of the case for instance would you have had open discovery for something was there something that existed that wasn't thoroughly gone over in the discovery there very well may have been i'm to what extent manner care medicare for america medicare health services or medicare of arizona was liable or whether they're liable for each other yes it would have had to been additional evidence introduced and presented to resolve those issues by would you do that in the case in chief but you bring contribution or indemnity cases after you have the liability in alaska we have i think a one year statute and you can't bring them in the sink a six pack can't remember for sure anymore i think that's what we have now there are so no we don't do contribution and then do the same way we have a system of non parties that fall in a jury allocates fault according to whatever party all of the issue with with regard to the subsidiary defendants is barred by race judicata because there's a judgement in favor of the subsidiary defendants in state court under arizona law the bootstrap that the good judgment is citing is fighting the district court here and so now you don't get an appeal of the original judgment because you have one in state court that there's we've got a federal court you can't get there from here it's all circular it is just but that's the danger of filing a state court when you have a federal  is when the plaintiff chose to step around the decision of the district court and to file an action in state court involving in many cases the same parties that are in this action that created a substantial risk of exactly what has happened that a judgment would be entered in favor of those subsidiary defendants in state court which with then have race judicata effect and this court i agree it's circular isn't somewhat circular it is it's frankly that would be september of two thousand and three this action under a two years statute limitations would have been barred in april of two thousand and three if it had not been filed what difference does that make that the statute doesn't say everybody properly and then we discovered that somebody wasn't diverse and that we had to dismiss or want to subject matter jurisdiction then there would be that there would be that we would be barred from filing suit that's entirely possible but the statute of started back in february of two thousand and four when the dispositive motions are for but but on on your your question your honor about the difference between file and then filed claims all i can say is is that in the clear channel decision in the period thank you chancel i it goes through of where it agrees with the court of appeals analysis and then it comes to a juncture where he says we have to depart from the court of appeals position at this point and the dissenting opinion but then why would the court even so  claim should be the majority opinion however that was not the majority opinion if you if in reading the two cases in their entirety and the bottom line is that the supreme court case regarding city of tucson versus clear channel does not make any distinction between filed and unfiled claims i leave it at that unless you have any further questions thank you