on the motion for reconsideration in both the underlying dismissal motion in the motion for reconsideration judge batts did not consider and said that she did not have to consider the five factors of craig and it certainly our position most respectfully advocated that in a situation where the ultimate penalty is about to be imposed which is the disenfranchisement of claims that that requires the analysis under drake certainly to the extent that we read the law we believe that that analysis under drink is mandatory but the case law says at a minimum that it makes that the failure to conduct that analysis makes any decision that does not  deal with the drake factors certainly subject to reversal i wanted to take you through the behavior in this case and it seems to cry out for intervention and equitable resolution here because none of this behavior lies at the doorstep of my client judge bat's says that two years and gone by with no progress in this case and it isn't really two years it's a period of twenty months once issue was joined in two thousand and sixteen the court filed its order to show on may thirty one two thousand and eighteen which is twenty months later throughout this process the court kept control of its calendar the st conference in this matter wasn't scheduled for more than four months after the answer was file and then the defendants asked from a german of that date and the court rescheduled the st conference for april th of two thousand and seventeen so the st six months of the twenty month period were as a result of the court's rescheduling on its own calendar and the defendant's request for an adjournment the next conference was scheduled and held approximately four months later july th two thousand and seventeen that's a total of ten months of the twenty month period the next conference was scheduled two months later on september twenty one but a joint request for a german was made do to the religious holidays that were then pending that request was granted and the next conference was scheduled for november two on october twenty five two thousand and seventeen the plaintiff asked for a discovery schedule to be made by the judge judge batts declined to issue one because she thought the case should be settled the amount in controversy was relatively small and she believed that the parties could settle it but in any event when we get to that point thirteen of the twenty months of delay are not visited or responsible my client is not responsible for that  that conference from november to was adjourned by request of both sides in order to attempt to settle and all during this period in terms of the attempt to settle the rich get defendants were looking for a copy of a confidential settlement agreement that my client had entered into with the non rich get defendants who we refer to in the brief as the guardian defendants and there was a series of colloquy as that went on between the parties about how that confidential settlement agreement could be disclosed and there was next an extended in for tract of negotiation of a confidentiality agreement and eventually went to the rich get defendants the next conference was scheduled on december twenty one two thousand and seventeen but that was fifteen months of the twenty months that that was happening at the december twenty one two thousand and seventeen conference the defendants were directed to outline their basis for a motion to dismiss the arista claims because they had said all the way through settlement that they believed that the case of forgery on applied to this matter and that this case was similar to forgery on missed notwithstanding the factual differences between the two cases from december twenty one two thousand and seventeen it took almost two months in february eighteen of two thousand and eighteen the letter came to my client to my client's attorney mr schrader along with a response to m schrader's outstanding settlement demand and mr schrader unfortunately did not respond to that february two thousand and eighteen letter that counsel sent that february th two thousand and eighteen letter was not disclosed to my client and more particularly the the may letter which counsel wrote back to the court saying that mr schrader had not responded to the february letter was never disclosed to my client and the order to show cause that the court issued soon as they five days later was not sent to my client either the fact of the matter is here that my client had the misfortune clearly of having this case take a turn for the worse and not being aware that this was going on she had no notice that the case had taken such a dramatic turn i think all of this could have been avoided if the judge had simply held a conference with parties present to discuss her shall we say concern on happiness or direction that this case would move should move forward with more alacrity and purpose my client has never met judge bat's judge bats has never laid eyes on my client and yet as issued a decision to take away my client's claims that even judge said in her decision on the reconsideration might have some merit certainly beyond a prime facia showing in this particular case there were many lesser things that could have been done by judge batts to preserve the underlying claims and to create an incentive for the parties to act with shall we say more precision and mor she didn't do any of that she went directly to the death sentence for my client without ever considering apparently any lesser sanctions the case law is very  think far be it for me to to take the position of a district court judge but certainly it has been my experience over thirty years that when this sort of things when this sort of thing happens two things happen st one is that the judge brings every one in with the parties and says no one certain terms this is not going to continue you people need to do this by a particular date or that said no such warning was ever made to my client in a room where it could have been understood could be sanctions applied against the lawyer of course the behavior here isn't considered that but in any event you are agreeing that on but he didn't tell more of hockey either so when he finally showed up at my client's home in august to tell her that her case had been dismissed and there was only the reply on the motion for re consideration left for her to be able to be heard and of course we all know that you can't introduce new facts on reply so my client's participation was largely moot at that point she made him call the managing partner at more talk in front of her and tell them what had occurred and they promised her the sun the moon the stars and to fix this and correct judge bat's his decision which they felt was wrong and i'm standing here before you today because my client loose and that's not ok when you hire a lawyer and you repose your faith and trust in the lawyer even as a lawyer if i'm hiring a specialist in a ryssdal law which is enormously complex and very arcane it's a closed bar there are very few people that really know about this and can really articulate their positions with some measure of knowledge and personal cassady in this particular instance she reposed her faith and trust in a person that as it turns out the very least apart from that if before we even got to the sanctions issue certainly sanctioning a lawyer before the district court and requiring that lawyer to pay that sanction is something that happens all the time and that is the kind of thing certainly that the grievance committee could get involved in if that wasn't collected and it wasn't paid with some alacrity that would be some in danger meant to the lawyers license to practice law in the state no longer at more ad hoc but he's certainly in practice today at another firm more of hock has a thriving federal court practice and there certainly could have been other people assigned to this case other people who could have assisted this client who was apparently an undertone stuck her in desperate need of assistance and she didn't learn about any of this until it was too late if the judge had called the parties in with the attorneys and said on the record this is what is happening in this case i am not happy with how this is proceeding and these are the reasons why and these are the things that i need to fix my client would have had the opportunity to vent assess the performance of her council decide whether there was any worthwhile purpose in keeping him on the case and get somebody in who could do the job appropriately who could perform  implementation of a contemptible tactic to copy the allegations in their complaint from another complaint that had been dismissed on a twelve b six motion they hauled my clients into court after settling with all of the other defendants in the case in what we can deduce amounted to a stick up bring us an settle early and then get out from april two thousand and seventeen my clients have been had been requesting the courts leave to file a motion for dispositive relief we had answered the complaint and were therefore requesting the court's leave to either file a twelve c motion or a motion under rule twelve h for failure to failure to stand claims use me come from the judge's preferences say that for dispositive motions filed after after a party has answered that there is a pre motion conference that's required to happen and so it was a bit under standing based upon those preferences that leave from the court was required before filing such a motion loser in so called individual rules which are have been sharply criticized by the court of appeals as an appropriate it's a motion motion to be this court's decision excuse me the southern district decision to dismiss this case was not made without it here into the drake factors and we know that because of the court's october two thousand eight hundred decision to deny plaintiff's motion f reconsideration of those factors we know that the court considered the length of the delay caused by plaintiff's counsel's agree just conduct we know that that delay began at least the period of plaintiff's noncompliance with the court's orders began in december and seventeen it continued through february th and when he did not respond to our court ordered settlement correspondence and deficiency correspondence it continued through march when there was another status conference with the court where we were finally able to obtain the court's leave to file the motion that we had requested to file almost a year before that and it continued during a period where he failed to meet were plaintiffs counsel failed to meaningfully engage with our office as we attempted to determine what claims if any they would be voluntarily dismissing from the complaint following communications in chambers with judge batts that that evaluation would be done on two different occasions and it was it was memorialized in two different orders timidly had a motion deadline of may st eight days excuse me nine days before that on the eve of what i believe was memorial day i finally after i was not able to get a conclusive response from mr schrader wrote to the court asking for clarification as to whether i could move against the entirety of the complaint as plaintiff had not given me any indication as to what claims he would be dismissing so i knew what the scope of my motion was going to be plaintiff never responded to the order contrary to the argument that's now before excuse me plaintiff never responded to the may nd letter excuse me contrary to the arguments that plaintiffs now make they were provided notice that the court was dissatisfied with their own willingness to engage because on may st the court entered in order to show cause as to why the case shouldn't be dismissed for lack of prosecution by virtue of plaintiff's counsel's misconduct it's not jr pensions fault that plaintiffs council never shared that order show cause with his client there was deadline in the order to show cause to respond within ten days there would be no extensions and plaintiff's counsel missed the deadline this is not an issue of whether or not he made the plaintiffs aware of the fact that the note that the order to show cause had been entered it was an issue of the fact that he blew a deadline that was a mandatory deadline after the court entered the order to show cause plaintiff missed the deadline to respond to it heat belatedly submitted a certification to the court suggesting that the reason for his failure to engage was because he was still investigating the purported factual bases that were an issue in this case that came in in june of two thousand and eighteen the case was filed initially in april of two thousand and sixteen presumably plaintiff should have been aware when he filed the case what the purported factual bases and allegations against the defendants jr pension and jeffery rich got were at the outset of the case not two years later and certainly not two years later when it created a delay of almost six months and prejudicing my client's ability to file a dispositive motion we know that the court considered the drake factor of delay we know that the court considered the drake fact on notice because the order to show cause was issued and we know that the district court considered the efficacy of lesser sanctions which is the th straight factor because st judge matsch told us that she did in her order denying plaintiffs reconsideration motion but i also know that lesser sanctions were considered because in my may nd letter to the court and in my opposition submission that came in in june of two thousand and eighteen i asked the court for relief in the alternative specifically that instead of being able to move against the two remaining arista claims that i'd be permitted to move against the entirety of plaintiff's complaint regarding plaintiff's counsel's conduct to be so egregious missing to violating two scheduling orders failing to engage with defendant's counsel not responding to the may nd letter not timely responding to the order to show cause and providing no plausible explanation for same having considered the fact that defendants had asked for a lesser sanction or at least an alternative lesser sanction the court considered it and opted instead to dismiss the complaint i'm sensitive to the issues that exist as between the plaintiff and her prior counsel but link the wash railroad suggests that a client ever chargeable with her attorney's neglect in her attorney's misconduct the cheery decision entered by issued by this court creates a higher bar when the litigant herself is an attorney i can't stand before this court and suggest what the plaintiff in this case should have done when confronted with an attorney who did not engage with her over the course of their representation but i can stand before this court and say that as a matter of law she has a very high bar to be able to escape the consequences of her attorney's actions and so for those reasons particularly the court's consideration of other than that dismissal would have ended the case entirely sure what that's something that the court had as an option but i'm saying how are you prejudiced we have cases where defendant's con sanctionable conduct his actually prejudiced assad's ability to mount its defense or call witnesses or whatever and i wasn't sure that that was this case judge i'm not sure the defendants would have been prejudiced through the imposition of fees although i note that the district court below denied our application for fees after this case was just that was as as an award for excess on the merits had whether or not that that would have been warrant sanction it could have been fisa as a sanction i'm not sure that a court is required to undertake an exhaustive review of every potential lesser sanction available that's the south new had spent two years later getting the case finally had an opportunity to move for dispositive relief against a complaint that had been copied from another action that itself was dismissed as a disk as if it dismissed from the one hundred and twenty six motion as being found wanting and then having to live with the case for two that's no longer in the cases that the state of play there's a case that i included in my briefing to this court the clock decision from federal court in texas that imposed an award of fees pursuant to a recess and thirty two dollars g that was joint several against plaintiff and her counsel and so it was our hope that the court would review that decision within the context of our cross appeal of the core of the district court denial of our application for attorney's fees i see that my light is yellow so i want to be brief with respect to our cross appeal there's a supreme court decision that says that when a party achieve some degree of success on the merits in an a the hard decision that there is a five factor test to determine whether or not it's within the district court's discretion to make a field or two of those particular factors i think are very relevant here number one so it's ok settlement of this case between myself and mr schrader and i believe that it was the district court's hope that in lieu of ultimately finding the parties so far apart on settlement that they were beyond resolution that it might push off the need to file this positive motion certainly that was the position that we had been that we had understood and so what i understand you're saying is that you wanted to have a sure slam dunk winning motion and i i asked the court's leave to file that motion a number of different times and was not i couldn't ask you why didn't you leave sleeping going on and just filed a motion settlement but to the extent that the pleading that had been filed by plaintiff in our estimation was significantly deficient certainly it was our it was our hope and litigation strategy that we be permitted to move against that complaint the issue was that within the scheduling of the initial components of this case we answered and so in order to have filed a motion following the answer it was our understanding that we required the district court's leave to do that because it was a  thank you after taking issue with counsel's belief that he was not given leave to file his motion because and you see this in our brief at the march th two thousand and eighteen conference on that issue i don't think that there is i was surprised to hear this argument today i will also say that with respect to counsel's repeated discussions about how the complaint was wanting again my client hired an attorney that held himself out as an expert and then paid an additional five thousand dollars at that attorney's direction to hire an expert to assist with the pleading and at this juncture it's all well and good to say that the pleading is insufficient but we don't have a decision that regard yet we don't and we don't have any investigation that merits discovery is not even started in this case  yes your honor that's what the law provides that's the relief provided in some respects that's true but as we sit here in a court where someone has wronged my client and my client is entitle to compensatory damages my client counsel well my client does have a claim against her prior counsel but my client is also asking the three of you to allow her to have her day in court because it was taken from her that was taken from her inside in some degree by the actions of her counsel but in some degree by a judge who should in my humble opinion have told her st that this was about to happen issuing the order to show cause at with parties you know i know you say that and it's not unheard of but frequently the rich are disinclined to demand the presence of a client who after all has designated the attorney as her age  and there's there's a question of how much courts should intrude on the attorney client relationship except that the do nd rate factor is that the plaintiff not the attorney the plaintiff is given notice that further delay will result in