they should be a little less complicated i think so we are considerably less i hope may please the court my name is daniel brown and i am here on behalf of the talent and the interesting plaintiff in the matter below cameo l l c i would like to reserve five minutes for rebuttal as the court room deputy indicated i'd also like to take a brief opportunity to thank the court for its time this morning and to frankly admit that this is my first argument before this court so if i step  have what i should do i hope that i hope i won't need any indulgence or patience but i would ask for that if that does happen this is a matter that quite frankly involves a contract claim and  a rights under another contract claim that has never ever been decided on the merits despite it having been pending since april two thousand and nine which was when cameo filed its intervening complaint in the underlying district court matter summary judgment was initially granted by the district court in favor of a t w on the ground the cameo didn't have standing to bring the claims this court eventually ruled that summary judgment had been was reversed was error and the matter was remanded back to the district court at which point things to put it kindly went when a little bit bad cameos council at the time after an order had been entered for status  did not do anything in obviously but should the court do under those circumstances if the council's not doing hawt boaster i believe the court should respectfully look at whether or not this is an ongoing history of failing to comply thumbing the nose was there bad faith was there willful disregard i don't like the pass the buck argument your honor but i will say that former counsel did acknowledge his error he did apologize to the district court for his error and he asked that the punishment be put upon him rather than upon the client i think in this case it was a relatively short amount of time that passed certainly no one can deny that a deadline was missed and it was but what i would point to and looking at some of the other cases that we've cited in our brief and in our reply this is a case of excusable the case but you proceed anyway or or well there had been the court did construe counsel's status report as a request to reopen discovery and the court in considering that did deny that that any further discovery could take place i think that certainly could have presented some problems to cameo going forward not being able to take additional discovery i think that was probably a sanction i think that the attorney himself could have been sanctioned the record your honor i can't i can't in any way shape or form deny and i don't think we've tried to deny that there was noncompliance with the court order i think the question that we raise is whether that rose to the level of warranting what i would argue is the strictest sanction possible which is a dismissal with prejudice that length case says that you can do it but then where you have some cases by robs as to be an abuse of discretion if you don't think about alternatives and editors that's why i'm asking you what sort of remedy does he need to do desi sanction you as i said in my brief i'd be hesitant to suggest that that another attorney be sanctioned but i do believe that might have been an appropriate thing to consider as as right i mean there are two things here obviously there's the sort of fuss with the first lawyer withdrawing but if i if i read the the sort of timing if everything had been done right you would have filed a status report in the early to mid october maybe october eight thirteen through seventeen there was some confusion about but big because at some point there's a one day wait for the order and needs three days late on getting counsel but and then he files in late november so he's six weeks or so late but then when he actually files even though it's headed a status report really isn't much of a status report the judge does note simply as one phrase in a sentence still has yet to assert that there are any reasonable claims remaining which is what the judge really asked for in the status report  you know what how does that come in and she doesn't make a big deal about it but she does mention that she does and in fact that's that's a point i wanted to raise and i'm glad that you said that because that was her language it still has yet to assert that there are any reasonable claims or meaning and i don't think it's an insignificant distinction to say what what the court did not say is having looked at what you did say we think your claims aren't reasonable aren't viable etc she said cameo through your counsel you didn't even  circuit you had them i think that's a difference that that bears noting should he have done it yes did the court require ask him to do it yes or not ask him require him to do it yes is that unfortunate yes was it excusable neglect i believe it was i don't think it ordered to turn over these two to submit the report and didn't comply and once you get into the three or four cations and that was seeing the rise above the level of excusable in the black i believe in looking at the issue of how much time talking about the fact that there wasn't any bad faith there wasn't of though there were certainly more than one order issued by the court to do this status report i think once the attorney for cameo at the time caught on to the fact that he hadn't done it and he missed that deadline albeit had missed earlier deadlines as well he did get something filed well it didn't go really the request of the extension of time was actually made by the original council for for cameo in conjunction with his motion to withdraw because he knew that he was withdrawing but don't order permitting the withdrawal reiterated the fourteen day requirement that the new council would have known about when he came into the case and presumably the new council should have known about all of those interim orders that came in that said please do this really do this you need to do this there are really two deadlines that were missed that after he comes in there's an october seventeenth deadline and that's miss yes then the judge issues the october thirty one order says do this by november seventh and that means mast and then there's the show cause and he does file something so there's two that he doesn't do the timing and then the third where he files something that may have been deficient correct by correct that he at least in his explanation he doesn't say i knew about it and i was busy he said i blew knowing about it i didn't know about as i didn't read my emails and i didn't check the docket that's correct i think there was a difference of perspective if you will of yes there were orders that were missed mr moore's explanation however was it wasn't that i saw them and then just failed to comply with them or failed to meet those deadlines i simply just didn't see them until this last one came in and you know pretty please forgive ok counsel you'll have your remaining time please the court leave rosenthal represent t w in this case i think a little background is how we got back down to the district court is important this case was here before on a summary judgment that i had received that simply r t w in another company named prime finish had entered into a contract terminated that contract on the basis that this other company prime finish had not met the agreed upon call the standards they were painting products for us if that was the case we did not owe any money for terminate the contract if we terminate the contract for any other reason we owed this early termination penalty payment cameo was not a party to that they intervened we got summary judgment they didn't have standing we came back appear the court came up here the court held that they had standing to sue r t w but they also the six are good also held the the right to collect the early terminations penalty payment had not been transferred to cameo and that you would not be justified in paying that penalty directly to cam you now at that point the claim that prime finish had brought had been settled release and dismissed with prejudice so when we go back down to the district court and looking at this order the district court wants to know what if the right to the only damages possible in this case hasn't been transferred to cameo how can they recover in this case while they may have standing can actually recover damages and that's where this status report request comes in we follow our status report stating that based on the six circuit ruling that there's no damages that they can collect at that point is when we get into their counsel with drawing and motion for extension and think the status report was like it was in the nature of a that's correct saying that there was standing to sue but giving no opinion as to whether came out could actually recover that early termination penalty payment so in our status report we say no you know they have standing but there's no actual damages to be recovered here  it's at that point when the when the motion to it draws granted and the most for extensive is granted they're given fifty fourteen days from entry to follow the statue we just went through that you do sort of agree with with what i said to opposing counsel is that  you know the new counsel came in october seventeenth tobar seventeenth everybody would have been hunky dory you missed that when he missed the nov seventh so he missed two he comes in six weeks late file something that's that's pretty thin is that a fair representation that's correct and i think and i guess my question is as a judge filer indicated rule forty one's pretty clear that you may do things and then we have you know i've read a dozen cases some of which go one way some of which go the other way but if you look at them in whole sky was six weeks late and most of the cases you know you didn't have to go to a beat i mean where you wasted your time you came in six weekly file something that was pretty thin and why shouldn't we just say let's find out how thin you make a motion for summary judgment court can decide it think it's important to look beyond the amount of time if for whatever reason the district court had waited four months between its october thirtieth order and its november fifteenth order to fifteen days i don't think that would change anything the concentration the district court w the continual ignoring of the orders the fact that they came within a close period of time doesn't really change that ignore this ignore this ignore this plus once it was actually filed it was not what the district wanted so the district court dismissed for the ignoring of the orders the failure to show calls and when something was actually filed it and even at this point they've never stated what claim still exists so really it's not just the ignoring the orders of fact that the district judge based on the six or ruling really wanted to know you know what what claims are we going forward with so and they only stands for they received that address that was ours that  discretion as to what judge coffin felt was the appropriate sanction for these continual ignoring of the orders and then not complying with in the not showing calls the nine further discovery would be a fairly significant  sanction well if if that is the sanction then i don't know if it means i'm to i'm also denied further discovery because we're now i mean i thought use your indication was based on your status report you are certainly other sanctions that you could consider theirs and there's other things that it absolutely there's other other things you consider so they'll to me question is was the same in that the judge chose was that an abuse of discretion or not there are certainly other sanctions one of the factors listed in the harman case harman vs six case is where other lesser sanctions considered or imposed in that case it doesn't require that snowden there is doesn't require that the judges dismissal order say i considered no discovery decided that wasn't a consider finding the other tourney decide that wasn't good enough it just says that the fact that it's not in the actual order doesn't mean that the judge didn't consider lesser sanctions the fact that the judge confident put in or or considered fining mr moore's or stopping discovery doesn't mean she didn't think that through before she  dismissing with prejudice what about the prejudice your client would incur if this was reinstated well again it's and if that's something the judge should have given more consideration to if you can consider the four factors that's one some point my client would like closure on the case of the fact that it still remains open i believe this president is my client without knowing how we ever were going to have any money if it's found that way to anybody in october and november nothing happened in terms of  evidence being lost and that sort of thing not that aware of between the review if the judge had not dismissed it could have said hey i want you guys here next week to tell me whether there's anything left in this case than the case could perhaps finish correct if that if if they had found a status report and complied with the orders then obviously i think the case would have taken a different passim it may have said to me you know you go and tell your summary judgment but with them not complying it's hard to guess what would happen down when talked about is the motion to reconsider that they also appealed which essentially was the same issues that were same reasons then they were put in the show called their response to the show cause i think at that point there was a new district judge he found that essentially the same arguments he'll of a fully informed decision and i think he was correct in that and then it was just a rehash of what had already been decided anything unless the court has additional questions i really don't believe there's a lot left to say other than i would like to reiterate as we did in our brief the preference in this and other circuits for a decision on the merits thank thank you counsel  case will be submitted in the court may call them