in the case of true heart sign sign company is local one thirty seven union that had interfered with a breach of contract or a contract with a third party was entitled to pre judge an interest because they would have gotten those profits since the time of the actual case in the in the wickham case it ultimately was granted to the ultimately i mean it was in a review of a grant or the nile i believe it was just on the or it was it was granted in the original judgment yeah and rules in this area all ultimately in any case the jury came back with a determination either under wickham or in true art that that the party had been injured the point that had been injured at the union had done some type of injury and and i think just defacto at that point once there's a determination outside of the court but by the jury that there is an injury i think it it follows that as a result of that injury there has to be some type of recovery for prejudgment interest were guarded list of whether or not going then that that as a matter of law there has to be free judgment interest or is it is it or we were viewing for discretion i think it's under abuse of discretion but i'd award the interest and there should be some explanation as to why why it should not be granted and i think the court in this situation didn't address the wycombe factors and really looked more so interest under the statute what's the complaint that you have on this score that those who are actually should've had an extended meditation on the factors in it but i think there should be some analysis one on those factors and without any type of analysis it's difficult for this court to determine what exact whether or not he abused his discretion but ultimately i think in this situation given given the statute given the fairness given the  jury verdict given the fact that there was argument and you're arguing basically that he did not exercise his discretion appropriately not that you know and that that is a tougher argument seems to me than the fact that he clearly got it wrong here he did consider the matter maybe he didn't consider it to the full degree that you would like at least in explicitly but he did consider it i've reached his conclusion i don't think there was any consideration i think it was a simple recitation of the factors and then ultimately a determination that in fact special circumstances justified additional compensation and that it would be judgment interest of the overcompensate to art and i think this court should also look at its decision adams as well as some other decisions where they've indicated that in a breach of contract type of situation that it's it's it's more the norm to award pre judgment interest so you'll the floor on that particular issue on top of that the issue that we have is that he wanted no cost whatsoever to us we were the prevailing party and we didn't get any cost for the depositions for the copying all those costs that are a by presumption awarded to us and there has to be some determination by judge wexler as to why not to award those and he just said that he felt that you know referencing the  trial graphics charts and that being too expensive but other than that even if even if that was too expensive your argument would be that doesn't necessarily warrant no costs exactly i mean to why we should get absolutely nothing after the jury verdict came down in favor of true art critic the outfit which i didn't really understand that you were also complaining that there's no judgment in tre that what you're are you complaining about that here that is part of the appearance that we should be awarded postage in a church so strong interest is usually worked out by the parties in the clerk did you do that here that that has not been done here because it's usually something that the parties are responsible taking care of particularly the lawyer did you that that was not done in this situation the first thing that was done was that one thirty seven filed the appeal and there was a sta of the enforcement of the judgments so none of that occurred at this stage you've reserved two three minutes yes thank you good afternoon made police according to faneuil charney of charney and associates on behalf of the defendant to at pelly a local one thirty seven of the sheet metal workers speaking first to the issue of pre judgment interest i want to i want to talk  timeliness if i may and then also talk on the on the substance on the merits regarding timeliness i would i would try and concisely post following proposition as consistent with all the cases that both parties have cited the proposition is as follows when the matter was remanded by the second circuit and the appellant's were given the option of either remitted or for a fixed amount or vacate the damages and tire lee and have a new trial on damages they had a choice at that point if they had vacated damages entirely and a new trial on the on the issue of damages they would have reopened to their time to make a motion within twenty eight days after that for prejudgment interest they made a decision not to they went for the finale in repose of the remitted or they took no chances and no risks in that regard and therefore under well established case law that we've both cited that is the operative judgement for purposes of time limits regarding prejudgment interest the decision was made by the plaintiffs appellants to go with the definite amount of money and at the same time they are for made the decision at that  first judgment is the operative judgment i think that's it that's very clear under the case law and by making that decision they've given up their right to prejudge miniatures they are timely because that is the judgment that is ascertained in a meaningful way and therefore that's the date where they're twenty eight days start to run the end there i would point out regarding the in the reply brief there were some new case law cited on unreported eastern district of new york cases on the question of limited or in the impact i would just point out that in the fresh meadow case it was only regarding post judgment had nothing to do with prejudgment interest and in the true tol case there was only one judgement there wasn't a second judgement there was a single judgement so it's distinctly different and the analysis doesn't apply while we're on the subject of true tola which is cited by the  different judgments with the chronology is actually yes judge the the original judgement is august twenty third of two thousand and sixteen that judgment explicitly says no costs and no and makes no reference to interest it what's the operative date when it stops being pre judgment interest and starts being post judgment interest that's the date upon which the twenty eight days start to run there's no question and unless your honour's would want to make new law which of course is your prerogative there is no question that under the current state of the president the original judgment in this context is the date that prejudgment starts stops and posts judgment begins it is therefore the operative date for the twenty eight days with which not that much money but but if they feel how much are we talking about we're talking about something in the neighborhood of five hundred dollars for every three quarters of a year or so ballpark in there but i believe they just forgot and they maybe didn't understand or know council or the party didn't understand or know this distinction between a remitted error and vacating entirely and therefore when they made their decision to accept remitted or they hadn't done the research and they didn't understand that the second circuit clearly established that this was the decision and choice they were making i would i want to mention that there is a there's an argument in the reply brief it's brought up for the first time in the reply brief that oh we couldn't have made the motion based on the original judgment because it would have been thrown out as premature that's just totally inaccurate federal rule of appellate procedure four and a four and a four believe it or not for a for a for stance for the very distinct proposition that the application for prejudgment interest would have the trial court would have kept jurisdiction to hear that that federal rule of a propeller procedure for a for a four and all of the three unpublish decision cited for the proposition that it was premature three on poll published decisions i believe two of them from the eastern district all of them their motion was timely filed the motion was timely filed and the court in one of the cases said i'm not ready to decide yet the court in another case said i'm going to reject it with the opportunity to renew we need more information and the patent case of course is incredibly complicated claims adjustment case where they said way it's way too early we don't know enough thank you for filing the timely motion that's an important distinction what about the question of course ok all at the same argument or the stand the different footing in the first instance it's the same argument as i just laid out regarding the the application for a preacher same exact argument and in the brief i refer back to it there is a second argument that's even better i mean more clear cut i should say better it's just more absolute and that's local rule fifty four point one a local rule fifty four point one a in the southern district of new york it requires you to make your application for cost within thirty days of the appeal being decided clear is day could not be clearer doesn't do and it makes an exception if you can show good cause but it's absolute and your honors i propose it that's the novo review for you in terms of application of that local rule fifty four point one eight the appeal was decided on august twentieth of two thousand and fourteen the application was made at the earliest it wasn't even actually made on october eighth but at the earliest we could contrive it to be made as october eighth well beyond the thirty days so putting aside the timeliness because riposte says the first judgment is starts the clock which i think aptly wins on that even clearer and more obvious is this notion that they waved under the under the rules and help i'll close with one final well actually after two more things if i may your honour's on costs all of the cases cited by the appellant in their moving in their appeal brief as well as their reply brief every single one is a case where the trial court granted cos there is no case in those briefs for the second circuit said you should have granted these particular costs because the deeds left to the sound discretion of the trial court judge wexler was there your honor i tried the case i was there in the court room we're through the whole thing this is exactly his imprimatur on his wheel house to determine whether or not costs should be paid whether they're appropriate and the burden on costs is very large let's not it's normal cos if they had to if they had time we made the application for cost because i believe waiver applies to you but even then it's still within the sound discretion of the trial court to award the cos there's no there's no rule that this court has ever made that you definitely get them there's no such rule and pretty close the quote the normal rule obtaining civil litigation not an exception is that in light of the general  denied because this record must articulate its reasons for doing so unquote right scrolly he did articulate his belief that the costs were excessive and i i forgot the enough it was enough i believe it was more than enough and not only is it more than enough to suit the the record that submitted in the joint appendix is rather remarkable in how imprecise the application for costs was you know with dollar fifty for a cup of coffee for the guy who's in you know using the video monitor you can't even the judge works or couldn't even parse that out i will if i may i want to close with one point going back to prejudgment interest if the court will indulge me i believe that mr le buddha is arguing and asking for the second circuit to make a bright line rule that you necessarily get pre judgment interest in a secondary boycott in case i believe that's the argument secondary boycotting is not preach of contract secondary boycotting is secondary boycotting there is no rule it would be remarkable and i urge the court not to entertain and certainly not to in the case and you know there was a lot of spin last night there was some spin this morning the just now with respect to the determination from this circuit didn't say that it was only vacate it would it would only be vacated  unless we decided to take the remitted or the judgment was vacated there was no judgment in this court has held that when when there's a vacant chair of the judgment it's an elegy there's no judgment at all so i think was a judgment that had been awarded there was a request and a sketch will set forth by judge wexler with respect to the pre judgment interest the post judgment interest and the costs so as well as his timeline and briefing schedule for it let's consider the hypothetical that you prevail completely here what would the create a language consist of what it would do you want us to  do we would like you to order judge webster to determine the pre judgment interest and i guess of the parties can't agree on the postage when interest to issue an award on that as well and then with respect to the costs i think you have to remand it back to judge webster for that because there's no determination in terms of what he believes is appropriate or not in other ways in the best of all possible worlds what it what are we you have the analogous you're talking hundreds of thousands of dollars so i'm sorry yes yes so we there in the record when we opposed their bond thousands of dollars and and in this situation because true art was aggrieved and there is precedent terms of having that be the standard interest rate