our second case for argument is settled ave against shaft international sat you know shaft international  it's about the equities of my client having his case heard on the merits before the court if my client is not able to have to see case heard and heard on the merits of course is the problem first we're not dealing with the merits that was resolved by a consent judge but second your client was invited to participate and just didn't bother to show up now i understand your argument to be that there was an alcohol some gas stolen problem between you and a lawyer in new jersey but why should that prevent the district court from entering a decision in favor of seventh avenue if you if your side of the ca to the merits of the issue he was able to have its case heard it just didn't bother to show up right that's the problem there wasn't any lack of notice it's apparently conceded that you and the new jersey lawyer received note no one appeared at the time set for hearing why is that excusable behavior you know you you're not going to like to hear this but we keep saying that it's a lawyer is for one side follow up the client's remedy this by malpractise action against the lawyers not to restart the case with respect to the adver was in when it was filed i was in europe i was not here my staff that was supposed to be watching for my farm for my cases had an emergency case and so the charger regarding his wife and i had to leave in a short notice when i returned i returned after the motion was filed i had almost seven hundred e mails i did not know about this case the new jersey attorney is apparently dead i don't know what happened there except that i do know that there was a complete total breakdown in which to us is a gross miscarriage of justice my client did everything in good faith to honor that you sent their consent decree and had you been able to present them in front of the court we would have shown the court attorney herman the new jersey lawyer did not didn't go up you know to the hearing although he's the one purportedly responsible for handling the matter in light of what you opened with i mean how how did the district court i think it was on june seventh and i'm just looking at in the first document in your appendix in that there was a hearing in february that when he did not show up i don't know i know that he also didn't show up on the one in june and i  the hearings after after the missed hearing in february i appeared on behalf of shock international one hearing that appeared by phone the court have scheduled a hearing someone in may the port have scheduled a hearing that was in direct conflict with another hearing that and circuit court the court asserted giving me a break in order to call it was a telephonic and i did contact the court the judge was not happy but it was not that something that i could control i guess my only my only observation is that in reading and reading what district court got to the point of just being exasperated that nobody nobody was showing up nobody was attending to the matter as you would expect a corporate defendant to attend to the matter and that you know an abuse of discretion your honor i believe it was an abuse of discretion because she upright refused to consider the merits of our limits she outright refused to consider the fact that we very pro upon realizing that the hearing had been missed so that we very promptly filed a motion and asked to get the information in front of the court she admitted in court that she would not consider any of the merits of the argument she only was concerned when i try to explain the facts of the court she didn't seem to want to have she didn't want to hear much about the situation regarding the other tourney there was a complete mix up in communication with the law from  jersey had i any idea that there was not going to be representation at that hearing i would have been there this was not willful misconduct there was nothing in this in this case where we've deliberately believed that his firm was taken care of but he called me as soon as that hearing it found out that since they were not at that hearing he immediately called me within hours i immediately got on top of it and i needed me went to work and contacted the court and file but ever i was ordered to file and filed a motion i felt multiple documents and i tried to explain to the court that there had been simply a lapse in communication and that we are trying and willfully trying in good faith to participate in the court process thousands of dollars for something that he did not do court court has always or it's always held in the past that there's been a strong preference for hearing matters on the merits and allowing to fall short once only to be a point in extreme situations or when less drastic not to to to fool the system or to do anything other but in good faith comply with the rules and comply with the process think they kidding of fault judgement will be liberally construed it's my understanding that that's all this court has also held in the past that certain cases should be heard before judges and not to fight or not and not determined to fall judgements and liberal clearly gross no default judgment in this case counsel you really need to describe what happened rather than referring to cases about some other kind of situation basing her decision stoli on the excusable neglect argument and failing to look at the other two prongs of all i believe that there was no attempt at a liberal construction and it did not comply with the court's purpose for hearing cases on the issues i believe that the court should have considered shops extremely quick action addressing us once it was released at the hearing had been missed and there meritorious claims that they defenses and again where the default has not been well peleus not prejudiced in any way and that's no to the argue that no but they have not been harmed by this they've not been they've not been prejudiced by this june seventh hearing and she asked counsel do you agree chaffed counsel agreed to not dispute her restoration of the facts and those facts show that shaft simply did not comply with the terms of the consent judgment thirty first twenty sixteen moreover counsel did not act quickly in responding to the default instead counsel and shaft record shows that counsel and chaffed knew about the hearing before it occurred on january thirtieth and yet nothing was filed in the court until march second over a month later chef also did not comply with a consent judgment because chef principle did not provide an affidavit as was required until march second chance has not shown good cause or quick action  reasonable and in line in the market as well as my own affidavit in terms of the stablish in the rates of our firm for litigation jeff argues that we filed simply a four page motion but as details of pages twenty seven twenty eight of our consider any of the merits of the argument that we had to make she only considered and was actually confused about why there was a miscommunication between the tourney's counsel raises the issue of jackets being sold after the fact that's an issue of argument that needed to be tried before the judge we deny that shop had any knowledge or any complicity in the selling of any of those jackets it was out of control they don't own the retailers they don't think whole retailers and those jackets in question were jackets that were sold prior to this action taking place and were legal probably those retailers shop tried to get them back some of them were missed some of them were inadvertently sold later by retailers which are not controlled by my client but that isn't the issue here to the issue here today is whether or not those issues should have been discussed before the trier of fact in this case the district judge council did in fact that quickly i did not know at the hearing i was out of the country after i came back and i realize still show that if i understand the district court thank you returned from europe on january nineteenth and the hearing was set for e mails were notified by e mail i did not see that notice i also had prior to this case i had been speaking routinely with with local counsel they would call me or notifying me in this particular case and i don't know why they never contacted me never notified me never to e mail me i had zero communication from them they were regularly communicating with the new jersey