my remarks are professed by the fact that i fully understand the discretionary aspects of this case i don't pretend to ignore them i don't pretend to run but this cases is not exceptional and did not justify the level of on extensions all requests for extensions on the periods of discovery after it ended without sufficient cause that the there there was no reason to think additional facts would be discovered requests for extensions he ever made was when he couldn't appear for his deposition for a family emergency but he was willing to appear and microsoft in one thousand nine hundred were not interested but district court had the facts wrong on contempt in the so the standard you have to meet is extraordinarily high you have to show that the district court clearly erred and that and clearly erin given our deferential standard of review so i mean i think that's a very difficult position even if you are correct and that was the first thing i said today was that i understood the burden was high and that discretion was a burden i had to overcome but citing from the the in a blue brief you say you weren't given access to documents filed under seal but i couple of pages later page forty one you know peer to cite documents filed under seal in your arguments continue to you were the prevailing party argument because the inside there has to be a permanent party yesterday the prevailing party issue is this is a this is an odd thing odd case given in particularly the supreme court's c r s to decision that's when i'm asking that that was the off thing about the supreme court c r s key decision is it didn't overru seven employment case that you didn't have to have a decision on the merits but that case really only applied to employment issues and if they did read here asking to be limited to title s forty one b address dismissals with prejudice forty one b says i have it right here in front of me yeah it good argument depends upon an implied understanding of forty one and i think the answer to your question is no but it says that unless the dismissal states otherwise i exception except for lack of jurisdiction improper venue or failed to join a party which is probably right pittsburgh doesn't that while i think prefer it doesn't fit your honor i think pittsburgh just a controlling decision from the court they have standing your honor i forgive me for taking exception in the little time i have left and in this was my one and only times of trying to find my client but the my client never failed the district court was wrong as what happened in the underlying case and i and i apologize for your clients and let's let me see if i'm going to correct your client said he had an ownership interest  correct that is correct and then when he was pressed on it as to documentation he said well it's out there i'll have to get it and then when he was pressed on getting then because he didn't want to have the publicity associated with owning the corporation he left the shares in trust with his girlfriend they parted ways he couldn't change the recall the documentation was sufficient person by the time he had fallen skase so when he follows case he couldn't really remember where the documentation was or how it stands stood but one of the shareholders who held a twelve and a half percent interest is lawyer step forward and said you've he's consummation i document every single order issued in the court and i shoulda he did not violate a single one of those orders and i also further argue in my opening brief that she never saw her honor never specified can't do that you're on because i have looked at this record closely i came in late i came in at the last minute i documented every single order in the case there was not a single violation of a single order the one stand there was no dragging out of proceedings he didn't ask for any delays all the time the court imposed the delays he couldn't meet the deadlines he couldn't meet the deadlines there was no delay this case was only one  really talk about what she talked about in writing the process that that in other words there he had to have understood very early on that he was never going to be able to put that documentation together to establish his stance what happened before i got there your honor is that my predecessor did not ask for right from discovery to go get the documents he knew was there i come into the case shortly before his dismissal i say give me discovery rights i know where the documents are and i get very limited discovery rights and i get some documents and he sees the documents and says gee i was wrong i don't own one hundred percent i only own seventy percent and that's where the judges were her honor was very upset when you said one hundred now you're judge's discretion i fully understand the need her her discretion i am here to contest i'm here to say that in my opening brief i set forth chapter and verse where there was no contempt there was no delay he didn't delay anything the only delay that occurred in this case was when microsoft and eighteen he repeatedly asked for the lady my client wanted discovery to show his to show and prove his case the judge with her honor would not let him open discovery to get it he wanted to subpoena power to get the facts and the evidence and he knew where to get it he couldn't get it she wouldn't let him when when she offered him very limited discovery against the incorporating attorney he got it she saw where this was leading in a refresh his recollection it was that refresh recollection which bothered her honor and she said how could he be changing his story on the basis of these documents i submit eight seconds here that like clyde is very apologetic for not getting his paperwork in in order in the first place but he was not contemptuous and this was not a deception case and furthermore her honor had no right can i like the legal stocks of the two eighty five there there is a good argument that the court's use of any parent powers where there is a statutory provision that is that it's directly on point would be inappropriate with the supreme court said in chambers is that the first resort should be to the statutory statute a rule that provides for sanctions but if it's not up to the task then the court may resort to inherent power that would be here is still good law for abolishing the catalyst theory i think with the supreme court correct it wasn't over reading of certain language in the canon that you need to have a consent decree your or merits judgement in the courts and that doesn't make sense need some to dish out x and are in prime time which we have here but we also have so i think it's enough the dismissal for standing but the fact that this dismissal is one with prejudice means that it is in fact relief on the merits because it alters the legal relationship of the parties to remarry can no longer sue defendants for infringement of trey that's right if the supreme court said it's exceptional if the case is litigated in an reasonable manner even if it does not rise to the level of sanctionable conduct here it certainly did because of the pattern of office was untruthful and that the wild goose chase in which he led the court and the defendants in pursuit of a transfer of documents that she found not to exist big say cicely delayed the proceedings  that i think the award again the client when he having come into the case late realized that it wasn't the clients that was falling he represented and that he was the sole shareholder at all times in the inception of g i he knew that was false and there's no there's no getting around that in fact there's a few thousand and three declaration in which he said that that he owned a substantial portion of stairs and d t i i wouldn't have a problem with the fact that the other inventors were not involved in the case frauds problems well i don't know that there's a statute of frauds and that in terms of the transfer of stock there were bylaws that required to be written but it's important to note that because the district it had found in the original dismissal order on the merits that there were no transfers or no transfer documents reported the side of a document a false representations that he delayed the proceedings these questions including whether it should have been with presidents and whether there was conservations conduct are all barred from revision here in this court and i think my colleagues in correct in saying that confirmations conduct requires even if i didn't allow the other side says yes i would make three points on that first of all the district court as finder of fact found that she could still conduct meaningful review even with the redactions it's important to note that of the hundred seventy actually find those unreasonable reduced to twenty percent and she reduced twenty percent for duplications so the fact that she reduced it for twenty percent she only gave a five month fee period i didn't get to hold the case we only got about a third of our fees a t t and the fact that she structured entries she made a very careful deliberation in terms of what was really reasonable and so we think that the case should be upheld in full if there are no further questions your honor  corporation and the and it is not true that all the shareholders out of the corporation the corporate owner has to be before the court the shares are transferred all the shares are transferred to the corporation the question was is all it was a dissolve corporation but under washington dissolve corporation operates by the majority of shareholders not all shareholders that is incorrect and that was an incorrect statement and we argued that before and so when mr in the area appeared with is supposed to call documentation of said he holds one hundred percent but when the rulings documents were subpoenaed eventually from when i got into the case from the corporate formation it was seventy percent he had enough to control the corporation of the other enough to assert the corporate shares it's not like a  patent case for all the inventors had to be there he had seventy percent control but the court found it offensive that he would say seventy percent on the one hand and one hundred percent on another therefore she discredited is entire testimony when all there was a lot more than  not much your honor i would i would say that the record does not say there was mention here until they mislead said three times i and i would say not i would say that was yes i would say the only thing that really bothered the court  specifically was that seventy one hundred percent distinction there was nothing really else like document that in my brief there and i've heard counsel just basically admit that there was no order violated the only thing that he claims now