itself through the cracks your honor and i think that there were a variety of factors that came into play to allow that to happen i personally was not at people's tiny print at that time so i can't speak directly to what happened there i can tell you that the handling attorney is no longer with the good morning may please the court my name is set filton i represent the appellee carry on communication systems chief judge patel did not abuse her discretion in dismissing this case for failure to prosecute given the of two thousand and two during that period plaintiffs did virtually nothing to pursue litigation of this case their initial complaint was nothing more than a copy of the alleged fact for the northern district class action which is currently proceeding we remove that faces the federal court and move to dismiss after we did so there was a hearing which took place on after that shortly after that date march twenty seventh two thousand and one plaintiff's would have known that fifteen intended to pursue this litigation they needed to file an amended complaint they did nothing to pursue that all the way through until dismissal there was a three month period between the dismissal of the initial complaint and the initial status conference in the northern district on july ninth two thousand and one proposed case management conference order wasn't filed until i believe june twenty ninth shortly before the case management conference so there were still a three month period where the plaintiffs did absolutely nothing didn't follow a motion or file  hearing counsel admitted that was inexcusable neglect they had failed to tell the reply to offer any reason why they did not show up at that conference interestingly on the final page of the reply they indicate why they did not show up they s that they chose to not show up with the case management conference therefore this is not a case where they dropped the ball to use the pellets words by confusing the date of the hearing or the time or missing a plane or that type of thing what they did is to choose to ignore an order from the chief judge scheduling the case management conference from the date of case management conference all the way through through august two thousand and two when this case was of the defendant's if you look at the record i think the record reflects that that's unlikely on june eighteenth two thousand and two cherry on submitted a letter to the district court asking then asking the court about the status they submitted a letter to the district court in june twenty five two thousand and two arguing that the case should not be dismissed when they did that they made no reference in that letter to any efforts on their part to pursue litigation of the case of the fallen men fight or in fact any investigation of the defendants that types of that type of thing it seems reasonable that in the event they were actually pursuing the case during that time period they would have indicated in the letter your honor we had been pursuing the case if we didn't understand there were it was potentially going to be dismissed for failure to prosecute please let us continue they did not do that they did not indicate they were doing anything in their subsequent letter to the court june twenty seventh two thousand and two they did not indicate they had done anything at the case management conference hearing right before the case was dismissed they didn't indicate they had done anything in their opening brief it was only in th case management conference that they had that ready to go they simply could have filed it too it's unreasonable for them to sit back when they haven't extended the case management conference and to wait on the district court when they have no idea what the district back and wait for close to eleven months before doing anything whatsoever to pursue the case is the record sound advance the class action litigation was such that we could make a determination as to whether to allow in this case to continue would be disruptive to the overall litigation there's nothing in the record that indicates what the status of that class action is i can tell you that that class action is ongoing  some theory that would be beyond what is asserted in the class action now some question as to whether they really have a viable claim there is lead counsel in  stated what's up until today what their complaint would look like they simply asserted that they had they were preparing that they had some ideas about it in fact in the reply with a says we don't need to tell you what our ideas are litigation concern about the court's docket the other three factors are prejudiced to defendants here chariots and title through presumption that there was prejudice there also is in fact actual prejudice because either they've got what we expected to happen and your honor is that the case has been consolidating the state so at this juncture if we were allowed to amend our complaint we would expect the same thing it would happen there would not be there would not be separate tracks separate cases being