this is a this is a trouble free panel i wish we had something is newsworthy and tabloid press worthy is the last argument that we listened to there but i'm afraid we just had a contract dispute and cannot you cannot be our job for the barrage of matters that we hear trust  honor let me st try to quickly dispose of the time when this of appeal issues so that we can get to the substance of what we think the case is about there was only one judgment entered in this case and it was going to back in july of eighteen and there has never been an amended judgment so i think as the others did i mean this is it this for me is a very difficult tricky issue because i'm not sure i'm going to let you get rest of the substance because if you would agree with me mandate issue circuit st said please write us letters and tell us where we can find proof of citizenship and the record of the panel that panel is just sad with that and remanded and if you look at well if you were involved because opposing counsel tried to give it to the court directly i presume under rule ten and you moved to strike we jail you wanted to get down you when getting back down to the st appeals gone they don't retain jurisdiction and then you actually in your notice and i'm very sympathetic to the leap your problem but it sure looked like both the you knew you had to really know to fight if you wanted to further appeal well if we wanted to appeal personally i don't know what my opponents knew but if we wanted to appeal the jurisdiction question and the lack of discovery yes i believe at the time because the remained said it was specific to determine diversity jurisdiction i believe if a circuit was retaining jurisdiction and that our appeal was timely if i'm incorrect about that there are two other ways in we work timely st is if you look at rule fifty eight we had one hundred and fifty days before the the time started if you consider the amended findings of fact and conclusions of law to be a new judgment and they don't purport  be a new judge but if they are considered a new judgment and that triggers a new obligation to notice an appeal on the entire matter then if you look at rule fifty eight dollars we had one hundred and fifty dollars days and then the thirty days started running that was put us out into you think that's too broad a statement i do your honor i think that what the not that the district court had to rule but if you look at the rule itself it says that we had to move forward before the before thirty days after the time expired which we did and w law that says that exactly what the district court was appropriate and that this was not designed to be a trap for and i raised my hand the unwary lower so i believe there are three bases on which we are time the court had the power and discretion to grant that and found good cause and i at the time i didn't know we could list by day i was the i was the unwary lawyer at the time i was moving because i thought it would be foolish to write a brief and i don't mean to interrupt you know i know i made her up to answer judge wilson's question at that point he transmitted it back and everyone in the case magistrate judge austin my opponents and i thought it's back of the th circuit and we're now going to get set for our original appellate arguments which are the substantive arguments and then there's not on the record that it's and there's no record of this but judge austin called both sides and said we have been told by the th circuit school or to our court here at the district court that the does not consider it to be back there and therefore i'm not telling you what to do but i'm giving you that information and so both sides then noticed an appeal out of an abundance of caution so there was a lot maybe would give you more confidence confusion from the remain in confusion for a levy or a what if the supreme court has said in polls that this is a jurisdictional rule for simple timely appeals and unique to the one hundred and fifty dollars days before the clock starts running and therefore we would have been more than timely i also believe that the the case law supports that under rule for the judge austin did have the power to do it it does not run to the date that not exactly sure how you have you get out of that repayment out the geisha right in here is that we did we did have to bring pay the money that was one of our obligations on pathway side but mid cap and it's the record is very full of this mid cap said we were not only loaning money we were also providing media services and there is a section of the contract that says these are mc arms that get media's responsibilities the two we highlighted at trial the judge often did not rule for a song but that we highlighted a trial that i believe is clear is the invoicing requirement they did not provide invoices and they admitted on the record repeatedly they did not provide them they said no you provided spread sheets which we used as an voices and then the other which i think is even more substantive is that the contract under him c m s responsibilities says that him c m shall confirm minimum performance standards prior to payment now what the probably did with that is that when you can't do that until it's impossible well there is no impossibilities performance put but that really misses the point these were renewable payments to these rd parties and so you do have charge backs and you do have evidence as to whether the minimum form of standards are m going forward and it was incumbent on that cat to say hold it this isn't working they were the gate keeper and the reason that we we think this is a clear error of contract interpretation which is decided to no bodies the language the agreement if it's an ambiguous that it embodies the intention of the parties and the courts may not rewrite the contract and they may not interpret them to render any meaningless in the problem with what judge austin did in trying to fashion an equitable solution where the entity is responsible but the individuals not on the guarantee he was fashioning what he believed i'm sure was a very equitable solution level with that was he was not empowered to rewrite the contract he was not empowered to to say that certain parts of it are just stricken and rendered meaningless and that is what he did because this this obligation to ensure minimal i mean to confirm in all performance standards it was written out of the agreement in judge austin's opinion the ma and fifty five where mr hannington who was the corporate representative the spokesman for mid cap media trial thought he had made it over and over again i had to do it but i didn't do it and i and he said he got slipup with me he said the contract doesn't say i had to fly either that's on two thousand one hundred and fifty four and he said when he was finally cornered he said my sixteen years of experience in this business tells me i did not have to comply with the contract well that's not the way contracts work and i'm in the business primarily for the last thirty something years of doing insurance coverage work i mean we are stuck with the four corners of that agreement and the four corners of this agreement are on him big us they were never modified and right in there are several record references as to where it's never modified and ride it so of course midcap needed to go in police and see if these media we're actually producing good results or fraudulent results and so you can have these media buys what my client's doing is he's placing little ads on people's websites and search you know apartment websites tired discount tire you know different kind of web sites have different kinds of customers that look at them get the service and go wow like having my credit monitored and they keep it for months and they pay and pay and pay good business some get it and go wow i don't want this and they cancel and in some cases you even have some of these people at the at the middleman level who say we'll just go ahead and sign up for we require you to get the part of apartment here but then you can cancel it for a full refund well that was what this business was sold on is you're going to monitor this you're going to apply these standards and the word prior to leaves before before payment you're going to confirm that these standards are met the next sentence and i think part of the most telling argument here about why i'm a our opponents there at midcap or in khorat is that they they provided they really nonsensical reading of that section of the contract that said that my mum see him shall confer minimum performance standards prior to payment and then the next sentence gives them sole discretion over when they can d but it doesn't give them sole discretion over whether or not to do what the contract said and apply the minimum before standards and it makes perfect sense because the courts also say in the all of the cases about what is the law of contract construction that the courts who are the sole judges of the meaning of the contract are to harmonize positions to give effect to the parties and and if you harmonize the st and nd sentence of course the party that is performing this gatekeeper function mid cap media of course they should have the sole ability to not fund that's what they're supposed to do if something looks bad they sold it on out of time the one the one issue i think i'm right that no one says there's a jurisdictional bar to is the attorney fees from the remit correct your honor you want to save just a minute or two to talk about that because it was several months telephone conference i have it here in discovery hearing yes i did but judge judge alston was saying that he thought this was sort of an error curry ation strategy remember that right and if you read judge austin's statements in the hearing and by the way i think and he also has a fantastic judge always consent to magistrate here i like trying cases in front of him but like i like everyone else sometimes you get it wrong and what he did is he limited our discovery so we could not talk to rd parties we couldn't see we found this one trust and then they dribbled out the information to us st in the circuit letter various we learn new things a new name joe black who's he then we learned later in discovery owosso mistrust from california what were they and they were redeemed as off a few months before you followed suit well what if they weren't but if that that doc it was just generated by the most interest of financed financially interested party or we didn't get that discovery it was as if we were in a car accident case and were told you can't look at the police report and you can't talk of the boston years and we're not going to tell you who the passengers are so all of this stuff that happened on appeal that generated i mean on remand that generated attorney's fees was was generated by the error of the media in not pleading at citizenship up front we readily admitted california nevada it was mid cap with bank your honor that we made at media are somehow responsible for the fact that there were a lot of tourney's fees generated in trying to pry information that in any normal sequence of discovery we would have been allowed to do we've been allowed to test the allegations of the most financially interested party and test of the documents that came out of his computer against the record outside like who is the los lobos trust when was this really redeemed are they average is at the prevailing rates for what everyone has described as just a collection case with some breach of contract defenses and affirmative defenses but there was a complete failure of proof and in that instance  burnley says is you're not extending the appeal to are under that in the will fifty eight what you're doing is you are creating your the fee motion as a post judgment motion that extends the time to file the news the peel that's why burnley reasons very squarely and without any interpretation that it has to be done within the original time to file the moves to the heel when you fail to do that extension that requires a showing of excusable neglect i think there is no question here that the motion that was that was sought for an extension was a rule fifty eight motion for extension to treat the  motion in it was not based on excusable  this process works that there is a clear delineation in the of when jurisdiction resides in the district who are in when it resides in the circuit and that has to be done very clearly so that we don't have to use in about who's doing what sitting we've had another case where certain language was used for remain and so i guess i've been here is you know when you think when in this case of course the prior panel to a spot they brought it up then you tr saying those magical words actually would accomplish no need for a notice i think in that end since then still if you had unlimited mimi and you would still have to do something to get  back that you knew yeah but that's just transmitting it what i see most towards doing is we retain jurisdiction they signal to the parties directly but the more i thought about this case the less that works because if you're doubting your own jurisdiction you can probably retain it so i'm not really sure a court of appeals can every man for jurisdictional facts and not require a notice unless they've actually dismissed the appeal without prejudice reinstatement but we didn't do that so then you both go back down and then i guess a party has two options if you're not going to file well if you miss the deadline you can do the excusable neglect route but they didn't do that if you do within time you're saying you didn't even oppose them trying to get the attorney's fees up all with one notice but burly you're saying is what it is and it's strict so i guess i get to one it seems somewhat harsh but it may be the consequence of jurisdictional rules is there no law that allows us to construe a for a for request as a for a five excusable neglect  if that were the reasoning then that might meet sense but i will also point out that there was an extension motion filed before that before that well last question for me on this and then you may want to get to the merits or my colleagues may have questions but i didn't quite hear your answer if we had said we retain jurisdiction would your position still be that they have to file a notice of appeal i think it depends on what the mandate says if the mandate held and i am not arguing i'm trying to make sure i understand if the mandate said that meet all jurisdiction we re man for the limited purpose of the judge making additional findings although i i thi that would be that then we would still have to do something to bring the case back up to you but i think probably the judge making those fines and issuing them back to the circuit might would have worked but that's just not what happened here so  things just kind of big picture that i think made all of mr skelton's arguments new one is to emphasize that this was a very fact intensive case and the judge held a trial made very extensive fact findings and really what you're seeing here is a pathway trying to reach by the case and under a clear error standard that just gets you nowhere but i would point out a few things and a few findings that were overlooked counsel that they had to repay the money that is the most fundamental you know you know a contract that involves the extension of funds on someone's behalf in the repayment of those funds the retain it the need to repay those is just fundamental in nothing ways of materiality beyond those basic facts in certainly not here so let's talk about the q beings that pathway complaints about factually that they say we should have done differently and let's assume just for a minute that they're right and i want to go back on that i don't want to concede they are going to make it clear that the truck court may very specific findings that they're not and there may be conflicting evidence mr scott substantially to david coulter's testimony and the judge repeatedly judge austin repeatedly found that that evidence was not credible his testimony was not of that requirement under the remit so with respect to that in one standards it's very similar under minimum performance standards st and foremost the dishes that there is no evidence minimal performance standards were never met the evidence is that she would be a stand information was available to me and kept at the time they had fun they only had seven days to find a check and they confirmed the evidence was also that a lot of information was not available to mid cap that it was we didn't pathways digital which is consistent with the interpretation of the agreement that midcap have the right but not the obligation not to fund when it found minimum performance standards were not met i don't think you can read that provision in any way other than to for it's to be favorable to mid cap as an out if it sees something that's bad for it is not a protection for pathway and you know that if you look at the agreement as a whole in the other provisions in that very section there talk about the requirement for  substantial evidence and that's all we need for clear error with respect to the review here on appeal one is that there is no evidence not in performance standards were never met to with to the extent they could be met they work which is a bit the flip of the st and then the rd one is under the agreement in how it was written that provision didn't create some uber supervisor or obligation to midcap over pathway to protect from ever losing money to doing a bad deal in the evidence supports that interpretations well we get materiality on the minimum form and standard side too and it's very consistent for the same reasons that pathway had all of the data had more control of the doubt of than it kept even if there was an obligation on it caps part to check minimum performance standards and an obligation not to fund as opposed to  a right in its sole discretion which is exactly what the agreement says not to far and then it would still not be material because halfway to prove each and every one of the extensions of a and after it had the ability to check the minimum form of standards  i want to jump real quickly to the thief since that's really the issue that we have before us i want to point out one thing that maybe isn't as clear in the briefing that kind of shuts down a lot of the analysis that we've had and all the telephone conferences and the evidence here in this cover hearing it was sort of it was a little bit sort of pulling feeling if because these other non member owners with redacted forms it seemed like a lot of what they were asking for was in good faith but i guess but again that may just be subject to a high standard of deference are they also making the legal argument that you shouldn't be able to be paid for something that was your obligation at the outset in other words they didn't contest diversity you had to show what fish circuit said you had and if that's a threshold obligation of yours why are they paying your fees to sort of get the nd bite which you got clearly felt that was that he called it error creation he said it was an ng but it other times he seemed quite respectful of of postponing and extending i don't know that seemed just sort of one particular testy exchange but i appreciate was no notice of appeal and even after the one hundred and eighty dollars days which was the a political standard not thirty they missed of that so here we had two notices one was was the timely notice to the docket ninety five dollars your original judgment and then we had the one that was a day late but we we had valid motion to extend and i think we're i hope the court will focus is it looking is did we have thirty days or did we have  so early is there so articulate poor me in a declared his sentence what the holding you want from this panel with respect to what burnley's say is and the circumstances presented to us in this appeal would is it you want us to say in the disposition because i'm not sure i know what that is yes your honor what i would say if the court is taking the position and believes that the  st notice of appeal is no longer sufficient then the we look at what triggers a notice what triggers thirty days or one hundred and eighty dollars days and what it is the amended findings of fact and conclusions of law they may only dollars item they have to be something that triggers an appeal if they're not merely findings of fact and conclusions of law a pertinent to the original judgment then they are an amended judgment and amended judgment would go to the default of  jurisdiction in our core who personally i was i thought the original would still be good for that look that appeal on those issues and i would need a new notice for the new findings of the amended findings of fact and conclusions of law they're not a new judgment they could be an amended judgment conceivably but that's it and nothing in that document says it's a judgment so if it's an amended judgement it's not thirty days it's one hundred and fifty plus thirty so if i could briefly address the other issues that ms mccomas so ably raised on this what judge alston found was simply contrary to what the rules of discovery allow you're not restricted to only the testimony of a financially interested witness and his own documents that come out of his computer particularly when he has this this vast matrix of over one hundred dollars of these each of which has members who are who citizenship is relevant and it would be like saying that the prosecutors and the civil litigants in the made off case were only allowed to look at what mr made off came up with in his office where he was making stuff up that's not the laurie i'm a i'm going to give you a conclusion unless you conclude that thought but i'm not with you another point she brought up if she said that the trial court's findings have to be given great deference and and he found no materiality well the materiality is not in coulter's discredited testimony it's in  i either didn't do it or i didn't have to do it because of my years of experience and he struggled to talk about it and the fact the relationship failed and for months so that this was not a breach that doesn't matter this was highly material cases vol argument now was standing in the excellence of the breed's it really does help us to be able to ask the lawyers involved these questions to often refine the issues that are in the breeze but more to the  point sharpen it up for so we appreciate both of you responding to all the courses but quite obviously your briefs are the cement upon which your appeal is based so we will go back to that as well of the record and will get  case decided so the case will be submitted to the panel and we'll decide it as quick as we can but we appreciate