two the district courts refusal to recognize the filing of the client's counterclaims with the district court which effectively dismisses those claims as this court has previously acknowledged war that's also in the holding of the united steelworkers supreme court case in one thousand nine hundred and sixty here today we're asking this court to reverse the district court orders that number one and join arbitration redefined the scope of arbitration and prevented the clients from recovering damages in any form we also asked this court to direct the district court to stop interfering with the arbitration your honor these fundamental things are true rules must be followed and words mean what they say i think we can all agree on that and the clear language of the just records november two thousand and seventy order should be honored and we should be except that the firm failed to appeal the november two thousand and seventeen order i believe your honor may have pointed that out and as it stands now it's the law of the case it was not a clarification it was a new was proceeding it did not have any authority to stay the arbitration that was proceeding the court's november two thousand and seventeen order was clear it's not you may proceed well it just said we could proceed with count fo and to the extent well let me just point one thing out i mean the district court knows how to limit a claim to an offset it did that with our negligence claim and our  say that as to count four as to our breach of contract claim and everyone including the firm was operating following the plain language of that word or that november two thousand and seventeen order when we returned to arbitration that we could indeed seek damages that we were just limited to an offset and significantly your honor the firm filed a brief in the arbitration proceeding where entitle to recover damages against plaintiff with the exception of defendants count for they understood that we understood it and the law of the case now says that they are had jurisdiction over well your honor just like we appeal the district court's november two thousand and seventeen were you were doing an injunction what you said was an injunction in the court and characterizing it as an injunction but the other way around they would have had to appeal the refusal to join and that's specifically excluded from a to challenge it and the other is that they were clear and that the district court had basis to reopen this issue once it was referred back to arbitration what could you elaborate on now i understand your basic point that courts should not engage what arbitration is ongoing and the concern here is that that st appeal on the st order came after that is i understand after the arbitration was ongoing but that's over and done with so it may be the case again i mean the argument you're making would have applied to that appeal in that order to it seems to me and so once we started down that road hadn't filed the counter claims in other words the district court hadn't had a chance to rule on what current claims were subjects arbitration until it issued the november two thousand and seven because of the new unique posture of this filed in court and somebody rego seeking an order to compel arbitration of the counter claims but this one got off track a little bit and the judge was entering a ruling about arbitron belittle you without new claims in the court but my question still stands if we if he did that the st time and we except the jurisdiction or of the unit why should we change the approach now well i think we are out of sorts there is little you know the federal arbitration act and the public policy behind that says that arbitration exists to provide a speedy have the district court basically serving as a nd empire right questioning the balls and strikes that are called by the arbitrator and that's really what's going on here i mean as the record shows your honour's the firm has made these arguments to the arbitration panel and when it's dissatisfied with the answer then it goes running to the district court says give us another answer that we'd prefer so let's just take a step back for a nd to remember how we got here the clients filed the car claims in the arbitration right they never file them in court and then the fire moved the district court to force those claims into district court so it significantly let me point this out with that motion th firm filed our counter claims are answering our claim with the district court along with that motion and made of two thousand and seventy that's significant as this court knows the district court said some of the claims were for the court to decide some were for arbitration we appealed this court mostly affirmed and then we went back to arbitration with the understanding that the november two thousand and seventeen order was the law of the case we proceeding under that assumption the firm understood that we are seeking damages not just an offset on count for they conducted discovery on it and it wasn't until we released our expert report that indicated we you'll need to turn on your mike phone before you proceed sorry about that may it please the court counsel on the st appeal of this court this court burn the arbitration clause was narrow limited to the  determining a reasonable and fair beaver attorney service court to find the only arbitrate a bill term is quote recovery of a terminations fee end quote marks if you read it in its original form it says we breach the attorney's fees contract ok so it relates to the terminations fee it relates to the attorney's speed contractors saying we breached it are saying we court order referring the matter to arbitration that's what they wanted he's requested by i should be reduced because they had to hire a lawyer and get it referred to arbitration now it's true the district court didn't specifically include separate award of damages against the law for except as an os set against the claimed attorneys the that was the holding of the court that applied to all the counter claims the courts the that out as its general hold he said that yeah that one sentence didn't include that limitation but the overall opinion included that limitation and that's what he said when he clarified the order and that's what he meant and that's the way we interpreted  all the way through we never thought we got up to appeal and we have that broad language in there by the judge if there has become the law the case the appeal was necessary i suggest to you you cannot reasonably interpret th do you that but no i don't believe so i think it was just talking about the background of the case i mean judge pierce all never used the word exception and said that there was an exception when there are going to be an affirmative award and i understand your honor get that in the but no i think it was an appropriate slip note at the time that that really the issue isn't before the court and that's the way i interpreted it but i never for a minute up that somebody could read judge pirro souls opinion or your opinion for that matter and come to the conclusion that they could see millions of dollars for a breach of contract under count for that sought an os that person nominal attorney's fees are getting the matter referred to arbitration that's what it was and when did it become something more the matter the district court after this was and it went back they st of all of course moved for punitive damages to the arbitration panel arguing that was consistent with this court's opinion with the th circuit court's opinion wanted punitive damages and then after that when the families said no and they quoted your opinion directly and said it cat couldn't be affirmative relief go to your words they then went back and asked them to reconsider in that says that yeah we breached count four and what do they want for that breach of count for they want lost profits of over two million five hundred thousand dollars well open that relate to recovery of terminations be now we understand this court we understand this quote i'm sorry your honor question for you assuming you're correct about that why isn't that something that you should just take up if the arbitrators actually make such an award after the fact on the grounds that they acted beyond their jurisdiction why should there be intervention by the courts in the midst of the army tracing proceeding could you address that sure two reasons number one it's to protect our record because they've raised at least twelve times the issue a waiver against us on every issue including in this appeal they love the word waiver and the st time we came before this court one of their arguments was we had waive this issue because we had but the arbitration panel decided scope d of arbitration and therefore we had waived and so one reason is that we are not waiving this issue and that's one of the reasons that we went back to court to clarify the scope of arbitration to what by the the the scope of arbitration but also in this court's original opinion the panel you were a member that in this court the arbitration clause was inexplicably intertwined with relief with the remedy you said most in broad arbitration clauses they are they don't it dictates the scope of arbitration and so because of that when they seek affirmative relief we believe that it exceeds the scope of arbitration set out by the district court affirmed by this court that we understand how you can say listen we are going to get into the proper manger of damages undercount or that's a step that legal issue that's far beyond where we're d going and i understand that that's not what we're trying to do we're simply any theory and the other thing i'd like to point out that i thought was somewhat agree to this is that after this court's mandate they move to count five count five was an again i understand this court isn't going to get into whether they should be able to amend batt that's not what we're asking what happened again the only thing we're asking is is this part of said to be agreement ties arbitration to a particular amount of the appropriate attorneys fees that it should not be arbitrated and that's our position on that i think that's the really only issue here i don't want to be accused of waving any issue so the other issues the oral statements of the judge are not appealable if you read the mentioned in passing that he thought the arbitrator should be neutral but there was no threats made in the comments are very misleading that they make if you read the court's transcript you'll figure that out of the motion to reconsider their argument to there for some reason they won't file there are answer and counter claim in federal court only in arbitration they i can figure out that they don't i'll that motion for leave to file the counterclaims is rule eleven comes to mind why they refused to file them in federal court i don't know but that's their choice and nobody has prevented them from doing  suppose the arbitrator's went and allowed damages beyond an offset wouldn't you be able to come back to court and argue that the ward exceeds the powers arbitrator and will not be a sufficient remedy in this case well i don't know i will tell you what they they represented to judge pierce all when he asked that question why are you going to have to in the decide these claims for affirmative relief and they told him i said it on the record it's in the hearing last october on our motion to clarify they said they intended to get the two million dollars claim and then come to him and tell him that it already been decided it was race to the cot it against him this was a factual finding and although the arbitrator's couldn't enter in the affirmative award they would ask him to do it that's what they told the judge when he asked them that you can ask him to do it but i don't know whether he would appreciate it i appreciate it but if you're in my shoes and you hear that you want to do which is there some way that they could do that and i don't view this any different think the character raised characterization of this as a clarification we dispute we think it's a rewriting of the order we do not think the judge had authority to dip back into the arbitration to decide this and as to the issue of the filing so opposing counsel was was questioning why we haven't filed this well as i indicated previously the firm filed right with their motion and and we filed it when we sought the stay with our motion seeking the stay and this is a red herring your honour's because the south dakota local rule says finally got occurs when a document is sent to the courts electronic filing system and black's law dictionary defines the pleading as a document with delegation seeking judgment from the court it's been filed multiple times with the district court and the counterclaims an answer that is they're seeking leave to amend a complaint they bring their motion include their attorneys affidavit and they attach it as an exhibit to the attorneys affidavits and if b p is granted this is the complaint that will be entered again this is the unusual procedural posture of the case we never answered initially because we bought a rule twelve the motion and we saw arbitration so we didn't want to violate the state by just filing it without permission so while the  appeal was pending with this court we sought the district court's permission he said we are asking in this court's permission to file this answer and these counterclaims that were attaching and filing for the court's observance all counterclaims once the arbitration was finished everyone's been under that understanding and this took the technicality that the district court is trying to sink our claims with doesn't exist they're raising too high  bar they have been filed the local rule says filing it through the electronic system is final is that final order though i mean and i know you're talking about finale but is that a final or the reason why i say that is when it becomes final if you  well your honor we think it has it is final now because they said they're not going to accept it they're not going to accept it as a filing they have disregarded it and this is the worst part they have left us now without a forum for these claims the district court said we can't arbitrate them ok let us litigate them and district court but by you know i guess citing this technicality they say oh too late gotcha you may not even proceed in our court now so your honor i would argue that it has been it is order with fidelity because we've no longer have a forum to prosecute these claims isn't there another claim pending in the case well we have one still pending well i guess in fact i yeah you can arbitrate some and return to court to proceed but others we will not do that how could there be a final order though on this order regarding the counter claims we and if the case is still pending and you can't attempt to file the answer because i have to stand that i'm saying there are cases all the time where a judge dismisses certain claims and other claims continue and the party who disagrees with the dismissal or the refusal to file or whatever you want to call it cannot appeal if there are other claims still pending because there's no final decision in the case so i'm just asking isn't that the situation here well it may be that following arbitration we will attempt at no more questions from order to believe we've come to the end of your time the case is submitted thank you to both you have asked for your arguments