[00:00:11] Speaker 02:
May it please the Court, John Burgess for Plaintiff Appellant Stephen Rose as personal representative for the estate of Richard Rose. I'd like to reserve three minutes for rebuttal, if I may.

[00:00:25] Speaker 02:
I will address the Rule 4 issue in three parts. The Court was kind enough to send an order asking the Council to or ordering the Council to concentrate on certain areas, so I will begin my remarks with those.

[00:00:40] Speaker 02:
First, under Rule 4M, there was good cause to extend time for service. Second, alternatively, the district court abused its discretion by refusing a short extension.

[00:00:53] Speaker 02:
And third, the dismissal was not harmless.

[00:00:57] Speaker 02:
Starting or beginning with good cause, Rule 4M provides that when a plaintiff shows good cause for failure to serve within the 90-day period, the district court must extend the time for service. The Ninth Circuit has explained that good cause requires more than ordinary inadvertence.

[00:01:17] Speaker 00:
What was the good cause? Let's cut to the chase. Yeah, fair enough.

[00:01:20] Speaker 02:
Sorry.

[00:01:23] Speaker 02:
Good cause exists here because appellees represented through counsel that it was determining coverage by discussing the cases with the individuals involved. and obtaining waivers of service, which they were going to file, which was consistent with their ordinary practice.

[00:01:42] Speaker 00:
They didn't, so I don't understand why. What's the cause?

[00:01:47] Speaker 02:
I'm sorry, I didn't hear that.

[00:01:48] Speaker 00:
They didn't do it.

[00:01:49] Speaker 02:
You're right. They did not. I concede that that did not, in fact, happen within the period of time.

[00:01:56] Speaker 02:
In any case in which there's failure to serve within the 90-day period, there's going to be some...

[00:02:04] Speaker 02:
failure to abide by the rules. So the question has to be what would qualify as, um, the court looks to the reason for the delay, whether they had noticed whether there was prejudice and whether the dismissal would severely prejudice the plaintiff. And I submit that, um, based on their discussions with their client regarding submitting waiver, they had noticed with respect to prejudice, uh, Appellees did not then or now articulate any prejudice to the defendants at the time for the failure to serve within the 90-day period.

[00:02:45] Speaker 02:
And clearly based upon the ruling in Rose 2 on statute of limitations grounds, the dismissal implicated or suggested that there would be severe prejudice to the plaintiff if the matters were dismissed.

[00:03:01] Speaker 00:
The weird thing about that is that you never said –

[00:03:04] Speaker 02:
said that to the district judge we never said to the district judge if you don't just if you dismiss this case we're going to have a structural limitations problem she's supposed to just know that maybe she is but yeah i mean i i that's that's i concede that point i uh the declaration and statement uh doesn't say that um i think that it was obvious given that the events in question The parties had just litigated the summary judgment motion.

[00:03:36] Speaker 02:
It was clear that these events took place in 2020, August.

[00:03:41] Speaker 00:
You sort of have a problem because if you say there's a limitations problem, then you're tying your hands with regard to filing a second case. So I can sort of see that there is a tension there. But you did, in fact, file a second case.

[00:03:56] Speaker 02:
Right. And I agree that there is a sort of inherent tension. One doesn't want to – admit or to contend on the one hand that there would be a statute of limitations problem in that context.

[00:04:10] Speaker 00:
The district judge, when she dismissed, when she refused the summary judgment, did call some of these individuals defendants at that time. Yes. She seemed to think they were the defendants and only later did she realize they hadn't been served.

[00:04:25] Speaker 02:
That's correct.

[00:04:26] Speaker 00:
And also, I mean, at that point, was that point early enough for you to have served?

[00:04:32] Speaker 02:
Well, so the – I don't recall the exact day that if we – in the docket when – I believe the order on summary judgment was issued – the opinion was ordered on May 10, 2024, and the order – To show cause was on 6-5 of 2024, so it was about a month in between those two time periods.

[00:05:11] Speaker 02:
I think not only did the defendants, were they referenced as defendants in the case, but in the renewed motion for summary judgment, they were clearly articulated as in the relief sought.

[00:05:24] Speaker 00:
Well, I don't think it's so clearly. All they did was say, this person and other individual defendants, something like that.

[00:05:32] Speaker 02:
Yes, that's correct. So by listing the presently served defendants and then adding to their renewed motion and any other individually named defendants.

[00:05:49] Speaker 00:
But they never entered an appearance for those other people.

[00:05:53] Speaker 02:
That's correct. They had not filed an appearance at that point.

[00:05:57] Speaker 00:
All right. Do you want to go on to the other parts of 4M?

[00:05:59] Speaker 02:
Thank you.

[00:06:09] Speaker 00:
The extension of time language on the permissive section.

[00:06:12] Speaker 02:
Yes. Well, I did just want to, so thank you. I did just want to add that I think that it's significant, even if it doesn't qualify as a formal appearance on behalf of those individuals.

[00:06:23] Speaker 02:
I think it still goes to whether or not it was good cause regardless of whether or not it was good cause under 4M, the district court still abused its discretion by refusing to allow a short extension.

[00:06:41] Speaker 00:
And she didn't actually refuse. She just didn't even recognize that that was a separate question.

[00:06:46] Speaker 00:
Right? I mean, in a way, that's stronger for you. But her opinion just says it has to be good cause or nothing, and that's it.

[00:06:56] Speaker 02:
I think that's...

[00:06:58] Speaker 02:
I think that's correct, although the appellant's request in the declaration and response to the order to show cause indicated that the appellant would immediately serve the previously named or the newly named defendants in order to cure any concerns.

[00:07:22] Speaker 02:
And so I agree.

[00:07:27] Speaker 02:
Judge, that the court didn't actually treat or did not apparently address the questions under the discretionary standard.

[00:07:35] Speaker 03:
Well, I read this differently because the court quotes Rule 4M and quotes the phrase that the court may order that service be made within a specified time. And I think reading her order as a whole, she's saying, you know, this is – trial process essentially begins right now. And the, and I think she was very unhappy with your client for allegedly altering the theory of the case and adding new defendants and so forth.

[00:08:13] Speaker 03:
So it seems to me that there is an exercise of discretion. I mean, it's recognized expressly as an alternative and she doesn't do it. What, More was she required to say.

[00:08:28] Speaker 02:
Well, I think under, so I think a helpful case to look at would be IFAW. I don't know if I'm pronouncing that correctly, but which indicates that the discretion of court in deciding whether or not to grant an extension is not limitless and expressly directs courts to look at whether or not there are statute of limitations consequences for dismissing the case.

[00:08:56] Speaker 03:
Well, so in your view, it's the absence of a discussion of statute of limitations that demonstrates that she didn't exercise discretion? Or is that, in your view, a demonstration that she exercised discretion but improperly? Which is your theory?

[00:09:12] Speaker 02:
The theory articulated in the briefing is that it was an abuse of discretion, not that there was no discretion at all.

[00:09:22] Speaker 03:
I'd like to, before your time is out, ask you about harmless error, because the jury found that the plaintiff failed to prove by a preponderance of the evidence that the state, through the actions or inaction of any of its employees, was negligent.

[00:09:41] Speaker 03:
And the standard for the new defendants that you want to add is greater than that. So Where is the ultimate prejudice?

[00:09:56] Speaker 03:
And would that, if there were, if they had been at trial, there was evidence about at least some of them, was there not?

[00:10:05] Speaker 02:
That's correct. So as to the last point, it is correct that some of the individually named defendants did appear at trial as witnesses.

[00:10:12] Speaker 00:
All but one, is that right?

[00:10:14] Speaker 02:
I'm sorry?

[00:10:15] Speaker 00:
All but one.

[00:10:18] Speaker 02:
I'd have to double check the record. I think probably most of them did and would concede that most of them did. I don't know precisely.

[00:10:24] Speaker 00:
Were they called by the plaintiffs or the defendants?

[00:10:27] Speaker 02:
I'm sorry?

[00:10:28] Speaker 00:
Were they called by the plaintiffs or the defendants?

[00:10:34] Speaker 02:
That I don't know, Your Honor. I'd have to look at that.

[00:10:37] Speaker 00:
It's a good idea when you come to the court to know the record.

[00:10:40] Speaker 02:
Of course, Your Honor.

[00:10:42] Speaker 02:
I think that...

[00:10:47] Speaker 02:
The Ninth Circuit's decision in Chinarian, which I, again, hope I'm pronouncing correctly, is helpful in addressing the question of whether or not there's harmless error.

[00:10:57] Speaker 02:
There aren't very many cases addressing specifically the question of whether or not, of how harmless error would apply to a situation like this. I think the closest analog would be Chinarian.

[00:11:08] Speaker 03:
Just as a matter of logic, if the jury knew about what these individuals did, did or didn't do their acts or omissions and found in favor of the defense, I'm not sure what the formal designation of them as defendants would have changed anything. How would it have changed the outcome?

[00:11:39] Speaker 02:
Right. So, I mean, I think as a, well, as a matter of logic, I guess, the negligence claims elements are different and the defendants are different.

[00:11:50] Speaker 03:
But if they're not negligent, they're surely not deliberately indifferent.

[00:11:58] Speaker 02:
Well, I think what Chanarian points out is that although in that case it was a Manel claim with an underlying Fourth Amendment claim, in that case, The court held, which is arguably more close since an underlying constitutional violation is required for a Manel claim, the court held that because the actual individual conduct of those people as defendants, specifically with respect to issues in this case, would be their personal participation, their subjective awareness, their deliberate disregard, whether there was a serious medical need, are all issues that would come up in a constitutional

[00:12:41] Speaker 00:
Go ahead. Finish.

[00:12:42] Speaker 02:
Oh, yeah. Would all have to come into evidence at trial on a 1983 claim, which obviously would not be relevant.

[00:12:51] Speaker 00:
But Manel is different because there is no vicarious liability in a Manel claim. There has to be a separate showing of culpability by the entity, including negligent hiring or negligent supervision or something that's not simply the actions of the underlying client.

[00:13:13] Speaker 00:
Here, the verdict form said, did plaintiff prove by a preponderance of the evidence that the state of Oregon, through the action or inaction of any of its employees, was negligent? So they seem to have been instructed, at least there, although not in the other instructions, that if any of the employees was negligent, Oregon was liable and otherwise not.

[00:13:43] Speaker 00:
Now, so, as Judge Graber said, as a result of that, how could it be that none of the employees were negligent? Because they have to have found that, that any of the employees, none of the employees were negligent.

[00:14:04] Speaker 02:
I mean, there are circumstances in which, I realize I'm cutting into my time, but there are circumstances in which juries have found in favor of plaintiffs on individual liability claims under 1983 and not under a negligence theory, and seemingly inconsistent jury verdicts like that won't... Well, I mean, it seems to me your better argument is that you somehow would have tried it differently.

[00:14:32] Speaker 00:
I don't know whether that's true, but the question is whether the trial would have looked the same.

[00:14:37] Speaker 02:
Right. The trial would not have been the same because...

[00:14:41] Speaker 02:
of the elements of the claims would be different and different evidence would be adduced to prove elements like, and they would receive jury instructions on issues like serious medical need.

[00:14:54] Speaker 02:
And I'm not aware of any case that says that in the reverse direction that a finding that a person, while it's obviously true that negligence isn't sufficient to prove deliberate indifference, the reverse doesn't necessarily hold that an absence of negligence doesn't mean that somebody was deliberately indifferent.

[00:15:13] Speaker 02:
I see that my time is up.

[00:15:35] Speaker 04:
Good morning.

[00:15:36] Speaker 04:
May it please the court, Kirsten Nadeau on behalf of the State of Oregon defendants.

[00:15:42] Speaker 04:
I'd like to start with the first issue that the court requested the parties focus on, which is that the district court properly dismissed the eight additional defendants that plaintiff failed to serve after determining that plaintiff had failed to demonstrate good cause.

[00:16:02] Speaker 04:
And as Judge Craver noted, the district court here heavily focused on the timing of this, of the additional defendants here where a trial was scheduled to begin in six weeks. The court articulated its reasoning in its detailed order and set out the factors that it was considering.

[00:16:22] Speaker 00:
But the problem is that the district court didn't seem to recognize that. that anything but good cause matters. She said this expressly. She said, I'm going to find it now. Sorry.

[00:16:47] Speaker 00:
She quotes the statute. Then she says, to survive dismissal, the plaintiff must demonstrate good cause for the failure. But that's not true, because if you could survive dismissal if she chose to exercise her discretion without good cause to extend the time. So she just had the, and then she goes on with what good causes and what's not good cause and says there was no good cause. And that's all she does. So she never says, you know, even if there's not good cause or recognizes, and she seems to recognize the opposite, that even if there weren't good cause, but there was excusable neglect, which is what, the opinion says, liberty, that's what it's called, then she could still extend the time.

[00:17:37] Speaker 00:
She just doesn't, she just elides that possibility.

[00:17:42] Speaker 04:
That is correct. I mean, her order does not expressly recognize.

[00:17:46] Speaker 00:
Expressly or otherwise. It says the opposite. It says to survive dismissal, the plaintiff must demonstrate good cause for the failure. And that's not true.

[00:17:55] Speaker 04:
And I would, Well, I have two things to say in response. And the first is that in looking at the district court's order, in looking at the factors the district court was considering, those factors are also the factors that a court will consider when deciding to exercise its discretion, when deciding.

[00:18:14] Speaker 01:
There's some overlap, but obviously can't be the same. Correct. Because the whole point is that even absent good cause, right, the court has discretion to to say, you know what, I'm still going to extend the time because there's prejudice to the plaintiff and maybe less prejudice or lack of prejudice to the defendant. And I just don't see any sort of putting aside of whether there was a good cause showing that kind of weighing of, you know, should I exercise my discretion anyway?

[00:18:58] Speaker 04:
You know, the way I read the court's order is that the court, you know, 4M permits the court to, on its own motion, address this issue, which the court did. The court issued an order and specifically asked plaintiff to address whether there was good cause here. And in the order, the court went through all the factors, and there is some overlap. And I think a fair reading of this record is that the district court was – knew that it could have exercised its discretion, but was not going to unless, and would not extend the time unless plaintiff demonstrated good cause.

[00:19:38] Speaker 03:
Would you also address the harmless error question? Certainly.

[00:19:42] Speaker 04:
So the, you know, as I read this record, and I wanted to just note that, excuse me, all but one, Judge Berzon, you're correct, all but one of the Defendants who were added to the amended complaint did testify at the trial. They were called by defendants.

[00:20:08] Speaker 04:
Plaintiff, the only additional defendant who was not called at trial was referenced by many of those witnesses and referenced by plaintiff during closing argument as one of the ODOC employees involved.

[00:20:22] Speaker 04:
And then plaintiff's theory at trial at the close of evidence was that the ODOC employees had been negligent in delaying the calling 911, had been negligent in transferring plaintiff to the hospital, the deceased.

[00:20:39] Speaker 00:
But as a group, I'm not sure exactly what differences make, but the emphasis was on the collective. Correct. And the emphasis in a trial against the individual dependents would have been on individuals. Correct. some of whom they may have been able to prove were deliberately negligent, some of whom they may not, or they may have had different evidence against different people.

[00:21:03] Speaker 00:
None of that. So the trial was differently focused, at least.

[00:21:09] Speaker 00:
And the question is, does that matter?

[00:21:12] Speaker 04:
And I have not been able to come up with a theory where one of these individual defendants could have acted with deliberate indifference such that you know, the needle here would have moved.

[00:21:25] Speaker 01:
Well, normally, I mean, normally when we have a claim that the employer was negligent, we're looking at negligent hiring, negligent supervision. There's, you know, in a monologue claim, we're looking for a policy. There is some element that the plaintiff has to prove to establish liability for the individual employee's negligence or deliberate indifference. this does seem like a slightly unusual case in which at least the jury instructions seem to suggest that if the employees were negligent, then therefore, you know, that there was essentially an equivalence of employee negligence to the institutional defendant's negligence.

[00:22:10] Speaker 01:
Was that conceded? Was there any argument? Is that a feature of State law, it's unusual, so I'm trying to understand, was there any argument about what plaintiffs needed to show to establish institutional negligence that was different from individual negligence?

[00:22:28] Speaker 04:
So I'm going to try to answer the question. So I think first, the first response I have is that, yes, this is an unusual case. And in looking at the way this case was presented to the jury, you know, I don't, In no way do I think that this would necessarily be harmless in other circumstances. So I do agree with that.

[00:22:50] Speaker 04:
In terms of whether that issue was litigated, the wrongful death claim here brought under state law, the theory of negligence was that the employees were negligent and then that liability would carry over to defendants. And by the time we get to trial, that is the claim that goes to the jury. And so I don't know, I apologize, I don't know whether that was litigated extensively beforehand, but here, by the time we're at trial, by the time we're looking at the jury instructions and the verdict form, the theory was that these employees and a couple of additional employees were negligent in care, and that was the basis of the wrongful death claim.

[00:23:43] Speaker 01:
What was the state arguing to the jury that they needed to find? Was it that it was the state conceding that, you know, if they found a single employee was at fault, that they would be at fault?

[00:23:56] Speaker 04:
No, no. The state's theory was that the jury should look at the entire actions here. The factual disputes by the parties at trial were basically on a timeline here. which was, you know, in defendants, in, you know, defendants facts as set out in the defendants brief here were that at 945, there was, that was when the cellmate, you know, called for assistance into the cell and that the chain of events began at 945.

[00:24:30] Speaker 04:
Plaintiffs view of the facts were that it began earlier than that, as early as 9 p.m. or, you know, I believe by 9, 20 p.m. And so the dispute was when, you know, when the state employees began to treat the deceased individual.

[00:24:51] Speaker 00:
All of them, some of them?

[00:24:54] Speaker 04:
It was all of them. And so the final, you know, I will note that this is an unusual circumstance. The state's the state's theory below was not that, you know, a single individual, you know, acted differently or the state did not kind of break up its argument into single individuals. So, but I do think if this court is, you know, does not believe that it's harmless here, what the trial here demonstrates is that it was certainly not an abuse of discretion, you know, for the trial judge's initial order, given that plaintiff had a an extensive four-day trial where the jury did hear all the facts that under, you know, included... But that doesn't make any sense.

[00:25:41] Speaker 00:
I mean, it was not tried against these individual defendants.

[00:25:47] Speaker 00:
They... So the plaintiff didn't have any reason to put on very specific evidence as to which of them was responsible and which of them was deliberately indifferent and which of them weren't and so on.

[00:26:03] Speaker 00:
And you can't retroactively take what happened and go back to the decision not to charge them. So it has to be a harmless error theory, not an adding back into the discretion question.

[00:26:16] Speaker 00:
So we're trying to understand whether it was harmless error. And you say that, at least from the defendant's point of view, they were not looking at this with regard to individuals. I mean, what I see looking at the jury instructions is that the jury instructions didn't say anything about it talked about the negligence of the Department of Corrections and not of any individuals. The jury verdict form has this language that we quoted before, which says, by a preponderance of the evidence that the state of Oregon, through the actions or inactions of any of its employees, was negligent.

[00:26:56] Speaker 00:
But you see the case wasn't argued that way, so it may have looked very different had it been against the individual defendants.

[00:27:04] Speaker 04:
It it it you know, is it out of you know, is it possible? I think, of course, but I have difficulty understanding how if if one of these defendants had acted with deliberate indifference, you know, the jury would have concluded that that as a whole, these, you know, all of these employees did not act with negligence.

[00:27:24] Speaker 01:
I mean, it's not.

[00:27:27] Speaker 01:
I mean, first of all, it sounds like the state wasn't conceding that, you know, if you find one of these individuals is negligent, then we're on the hook for negligence, right? And it does seem to me to be a different question to say, well, was this individual employee somehow culpable for what happened, but we're not going to hold the state responsible for this individual employee's failures, right? I mean, those are really different questions that a jury has to the answer, right?

[00:27:57] Speaker 01:
I mean, I think that's probably what you're normally arguing, right? Is that even if you think that this individual employee was negligent or deliberately indifferent, that doesn't mean we as the state are liable. I mean, I think that would be the normal.

[00:28:13] Speaker 04:
I do agree. Again, this is an unusual circumstance. This is, you know, we have, you know, you know, we have a collective group of people that acted throughout this incident. I have difficulty understanding how the evidence would have developed differently had these defendants, you know, been named other than, you know, perhaps the one defendant who did not appear likely would have testified. But again, there was ample evidence about that employee's actions that was elicited at trial.

[00:28:45] Speaker 03:
I understand it.

[00:28:47] Speaker 03:
There's no challenge here by either of you to the verdict format.

[00:28:53] Speaker 03:
as being an appropriate verdict form. Correct.

[00:28:59] Speaker 04:
Correct.

[00:29:00] Speaker 04:
And so I, again, I don't think this is a usual argument.

[00:29:07] Speaker 00:
Can I briefly talk about Rose 2? And I know we didn't ask you to focus on that. But there are a number of cases saying that, but they're all federal court claims act cases, saying that Who the defendant is or who committed the harm doesn't matter with regard to tolling the discovery rule. But there are two earlier cases which seem to say otherwise.

[00:29:39] Speaker 00:
There's a Supreme Court opinion and a Ninth Circuit opinion, which both say that the discovery rule says you don't have to. It doesn't accrue until there's.

[00:29:53] Speaker 00:
they know that they were harmed and by whom. So what do we do with that? We seem to have a, what is the Supreme court case was second to ninth circuit case. And we seem to have a conflict in the ninth circuit case law on that question, as far as I can tell. So Bebo is the case I'm talking about. B-I-B-E-A-U.

[00:30:13] Speaker 04:
Yes. You know, I, I do think there, there is some tension there, but I think that the court in, as Your Honor has pointed out most recently, has, you know... Okay, but we don't operate that way.

[00:30:27] Speaker 00:
If we have a conflict in our case law, we're supposed to resolve the conflict in our case law, and I'm banking here. I don't know that we wouldn't do that in this case, but I was just very troubled to see that there wasn't completely a regular line here, and that the later cases are all Federal Tort Claims Act cases in which the...

[00:30:50] Speaker 00:
question was really whether they knew that it was a federal person. Not really did they know it was a person, you know, what the name of the person was, but did they know that it was a federal person? And they said, well, that doesn't matter whether you know it's a federal person. But is there any case that in this circuit or any other that says if you don't know the identity of the person who harmed you, the name of them, and reasonably don't know it, Let's assume that there's the discovery rule doesn't apply.

[00:31:25] Speaker 04:
So if I may briefly just answer that question, you know, I don't have any additional authority to point this court to other than what is what is in the briefing. But I would say, you know, I'm kind of at bottom here. You know, plaintiff was able to file a lawsuit against the department, against several named individuals and. and also filed the initial complaint had John Doe individuals as placeholders.

[00:31:54] Speaker 04:
And so there was really nothing preventing plaintiff from filing this lawsuit.

[00:31:59] Speaker 00:
What was preventing them is that they apparently didn't know the names of the individuals and the agency wasn't willing to tell them.

[00:32:10] Speaker 04:
So, you know, and again, I would just, as I have explained in In the brief, defendant's position here is that once plaintiff was aware of the individuals, plaintiff had every opportunity to amend the original complaint.

[00:32:29] Speaker 00:
It probably took a long time to do that. Would your position be otherwise if they had done it right away?

[00:32:35] Speaker 00:
Even if they had done it right away, as I understand it, it still would have been out of time.

[00:32:41] Speaker 00:
You would still have to apply a discovery rule, but their equities would be better. I mean, they would have diligence in doing it. Would your position change at that point?

[00:32:51] Speaker 04:
No. And so, again, I would rely on the cases in the briefing that say that the identity of the individual is not necessary. And I do, to your point, see that those cases can be distinguished, but in the defendant's position... Well, it's not so much they can be distinguished.

[00:33:08] Speaker 00:
They're inconsistent arguably with a Supreme Court case and certainly with an earlier Ninth Circuit case.

[00:33:19] Speaker 04:
I don't have any additional response and would ask this court to affirm. Thank you. Thank you.

[00:33:26] Speaker 01:
Counsel, you can have a minute on rebuttal.

[00:33:28] Speaker 02:
One minute?

[00:33:29] Speaker 01:
One minute, yeah.

[00:33:30] Speaker 02:
Okay, thank you.

[00:33:34] Speaker 02:
Perfect.

[00:33:37] Speaker 02:
I did just want to respond primarily to the questions relating to Rose 2, because I think it is important to note that Rose 2 was disposed of on a motion to dismiss, and so...

[00:33:49] Speaker 02:
The fact, you know, the factual record was not developed at that point to determine whether or not, you know, the questions that were just being asked of counsel.

[00:33:58] Speaker 00:
Most certainly you could add as a dose a year and a half before you did.

[00:34:04] Speaker 02:
Right.

[00:34:05] Speaker 02:
Does that matter? It wouldn't matter. I don't think it matters under the cases cited by, you know, that we're looking at here today.

[00:34:12] Speaker 02:
because they would have been past the statute of limitations regardless if the holding from Dinowitz and Gibson, the Federal Tort Claims Act cases applied, the date of the discovery of those individuals was after June 25th of 2022, which was two years from the date of his death. So if the statute of limitations runs on the date I mean, arguably, it could have been January or I think we've also discussed January of 2023.

[00:34:49] Speaker 02:
But either way, I think I agree with the court that there is a tension between these cases. And I think that not all cases have the same types of facts. There's a meaningful distinction between a federal tort claims act case because it doesn't matter.

[00:35:06] Speaker 02:
The identity of the individual, if you're suing the federal government, you can sue the federal government for the actions or inactions of its employees. And the defendant is the United States, whereas in a claim under 1983, the identity of the person is integrally part of the claim.

[00:35:26] Speaker 02:
And with that, I'd ask that the court. Okay. Thank you.

[00:35:28] Speaker 01:
Thank you, counsel. This matter is submitted.