trans and kelly martin and i was or five minutes for a bottle this case examines the criteria for awarding attorney c s trademark cases what we have here is a situation where city trends my so in this case what we have is a situation where there is no prevailing party there is not an exceptional case and coach contributed heavily to the eternal seas that war war so he had a case where the district court dismissed a case it's just fresh without prejudice without determining that there was a lot i can answer your question how do we know it was without prejudice to the district court say we have that admission from kept from coaches council and why is everyone assuming it yes that's why everyone is assuming that it's without prejudice because i believe that we could have filed white again in mare in maryland how could you possibly have done that what how could you have cured the defect which was that you had in the engine improper forum shopping while i don't think that we had engaged in i know you don't think so but the u s district court thought so and you didn't appeal that ok so how could you have possibly come back in and well the district court made a couple different factions determinations but they also made some legal determination had during their i was literally trying to say how do we know it was without prejudice and you're saying well we know that because we could have come back into court and i'm trying to figure out how that works it's not like there was a a a a defect that could be cured you know it's not sometimes it's without prejudice because you can cure the defect and come back the next day you can amend your complaint or you can find a party with jurisdiction or but so i don't see the curable defect that would have allowed you to court determined that coach had admitted and stated repeatedly that they had no claim they could not have a claim and they had never asserted a claim on the sole and the court found the sole have we filed it was not improper forum shopping there wasn't and so you would have just refiled saying we think you got this wrong oh that's why you would have been able to read over the aisle that we distributed we filed with the amended complaint why didn't you appeal well the reason we didn't appeal is because we have from the court a statement that coach was not going to pursue the sole goods when we started this litigation the sole good were very much in play that's what we were quested that's what we provided for our counter offer that is what we wanted to discuss and were shut down by mr watkins so the sold goods were at issue when we filed the  maryland at the time the maryland court decided to dismiss the case heatedly over and over put forth sworn affidavits from not just the counsel involved i thought it was your position that there was still a threat to sue and that's why there was subject now so there was a threat there was a threat to see that's why we filed the declaratory judgment you think as of now or as of the time that the district court rules there was no threat of lawsuits so at  by the time he ruled it turns out he didn't even have subject matter jurist out by the time he ruled we had confirmation from worked before then what we had was just statement simply and we had which is declarations and we had coaches vice general counsel's declarations that there was not that there was not a controversy over the sold goods but we did not have was the court's statement and the court's reliance on the fact she that admitted taken is true that it was without prejudice and taken it true it was a refusal to exercise discretion i recognize that may be less prevailing than if it was with prejudice an equate this is one hundred percent the court's holding that there does for a plaintiff's to be a prevailing party but what the court says is that's not the standard that applies to a defendant the defendant doesn't want the material relationship to be changed but something has to change want something so there's the three i think we've got the st one i'm not i think maybe better move on of course of course so the next basis is is this is an exceptional case and this is really where i think that the court can be of assistance here  given us a complaint that was only on the seized goods that's what coach and then they refused to talk to our new counsel can't just ask you a question i just so we can maybe her in the senate little bit so the district court finds in the st order not just that there was forum shopping but that there was improper form shopping and it was guileful and i think what he's getting at is you think incorrectly but the district court found that there was improper form shopping and it was  ul and there was a secret reese to the courthouse and i think what he's getting at is some notion which i totally understand you dispute as a factual matter that city sort of sandbagged coach a little bit and made them think they had more time than they did to file their complaint in california totally understand you think that that is not fair but he did find improper form shopping suit and you didn't appeal that so so are you saying there's some space here that you can engage in improper forum shopping which is sufficient to justify not having jurisdiction not exercising jurisdiction under the declaratory judgment act but still doesn't count as unreasonable  found that there was improper form shopping and you didn't appeal that so now we have as a fact there was improper form shopping you are saying that litigation conduct can count as improper form shopping sufficiently improper that justifies not exercising jurisdiction under the declaratory judgment act you didn't appeal any of that but even though it's improper there's some space between improbable and improper and a reasonable conduct of litigation that would justify awarding fees that's what we're arguing about it's improper but not unreasonable ok ok if that's what does it take for improper for an improper forum shopping to become an reasonable litigation conduct what is missing here about all examples of improper form shopping because that's the finding i still do not understand how it can be improper form shopping when the court believes that there's two different sets right but you didn't appeal the finding that there was improper forum shopping you didn't you appeal a judgment and so you didn't appeal the judgment that was based on the finding of improper forms up and we didn't appeal the judgment because what we received from the district court was confirmation in the it but the or controversy on the sold goods which is why we filed the maryland he's in it in that your position and maybe that's the point your question is did you have to or your issue is did you have to appeal that initial order dismissing because stiction if one of the grounds is improper or insure shopping which he did say are you required to appeal that in that type of order if you were barred to appeal it i'm not sure you have a lot you can argue about it seems to me your argument is a particular reason why that may have to be appealed but maybe maybe you can address that while there is no case that says improper short form shopping hasta result and isn't automatically is makes it something in a separate special case i do believe that all of the cases there is a little bit of waco so what i might have a position that form shopping that's an argument but what we have here is an order that or a from the district court that said it was improper forum shopping and if that given that fact do you have to appeal that in order to preserve your argument that it was not improper or no i do not believe that we have to appeal that what would we have appealed we would have appealed the court's discretion to dismiss this case but in making that decision the court relied on multiple factors including deciding in telling everybody that coach and the clarence had the whole thing all of them said that there was no he's in controversy of the soul which is why case in the st place so why would he want to bring that back to it why would we want to resurrect a claim that the district court had determined was dead why would we have a i see that i have the red light on to give us some time in  as points is your correspondence that you're relying on alluding to good beyond the seas absolutely and so that issue appeared to be at least in flux and potentially a basis of your  put on notice that a party in this case code was going to file a case in california where there were seized goods to be directed where those that they should have been brought were their settlements and you're said that it's i mean again you know it does a bad facts for you but but still and all there is this issue about that they did get what they got a much lesser judgment than they might have if we take into account all of this conversation in writing so anyway as the answer to question i'm not positive i mean i'm still not my issue is i mean st of all there's are you aware of any case that says warm shopping improper or not constitutes the basis for an exceptional sectional fun i didn't see any in your brissenden find any but if you have one i'd be shopping is not improper is it an abuse of discretion to use that as a basis for exceptional circumstance no why not if something is proper and may be filing in maryland is to get out out or that happens every day i did it my hope i mean maybe i was committing that whole violations my whole career but i mean you know i think that's part of the normal practice while now i think you can do and that's really the it's not that i once faulting anyone for appealing or not appealing but but in this posture is is that finding now law of the case i believe it is your honor ok and so my question is what's the rule on that because there are it's it's not the singular finding it in that decision we don't as your colleague points out the decision rests on a couple of different things including this finding of improper form shopping so do all parts of that have been opinions or have every and all three were independent and a court should decide one was wrong it would still be law of the case on the other two yes you are a belief i may have one of them fell away it's still have all of the case analysis that i could really tell on those factors and is is an abuse of discretion not to discuss how those factors apply it to the facts of the case but merely merely reference the basis for awarding not just any attorney's fees but one hundred and fifty thousand dollars in attorneys and one of the points that my counsel brought up is that oh well watkins was very why you can review it but more than that what were we supposed to appeal you don't just appeal the fact that you didn't like we would have had to be all the whole dismissal case which included over in proper form happy was not the only basis for the attorneys you can review the idea that because we did not counter claim on dead claims but that somehow added to the talent of the circumstances and that permitted the court trying to get out of state or get into or it's federal law so it's not even as if maryland would apply a different law we don't live in maryland we had an issue with the sold goods and we could not exactly what was filed in the in the california case as well so we only had the draft complaint on the seized goods and yet we had given information about twenty thousand goods that we had sold and we did not know what was have something that has not been mentioned in oral argument counsel remarks like your preceding counsel or you think i'm going to let my client go and so i'm you know i'm sorry i'm not i don't think you win that battle can you do one thing for me explain to me as best you can as quickly as you can why you don't think that they are a prevailing party i don't think that they are prevailing party because there we could have filed again in not decide the producer but it was you well our i don't think there has to be producible fact i read the supreme court she leaves that you don't have to but so hi would you prevail in party i know you are going about you can sue again but that would be every dismissal like this would mean that you went to an prevailing party you have any other grounds because i don't care as far as i know there is never been a case where at where the court has  its discretion not based on actual part that it's in the court's discretion matter i'm just curious i i understand what you're saying about with or without prejudice reclusive non producing but why does the fact that it's discretionary matter i think it matters because it's a different skin paired to all the other cases i mean there are lots of differences but why would it matter but i don't get it what if it had been precluded of on the merits and all of those things but there have been an element of discretion in lots of things courts do involve discretion why would that mean that it you didn't win because it was discretionary the there is no a fact to the fact that they dismissed it for discretion but if we did it was not a case of controversy it her personal judge diction it was the only thing it was was that court's discretion to not take the case on multiple factors not just the improper forms so i don't know how that becomes a prevailing party analysis today if we decide in our discretion not to forgive a waiver so we're going to enforce the waiver rule and then we dismiss with prejudice absolutely produce if you can never file this claim anymore but we did it just based on our discretion are you saying therefore the person who wins is not the prevailing party because it was a discretionary judgment i'm just not understanding that we do lots and lots of things that are discretionary and lead to reclusive with prejudiced dismissals of cases and are you saying that because they were discretionary that party didn't win i'm saying that this was discretionary just yes or no if it's discretionary but also preclude serve and also on the merits is that a prevailing party under those three conditions it would be ok so there is no independent significance to the discretionary part no there is an independent can because that means it was without prejudice without puts a lot you really care about is the result if it's with prejudice then we were not able to refile then what we would not have been able to file if it had been with prejudiced and you would've they would have been the prevailing part so your point is not hinged on that it's discretionary your point is that it was not on the substantive basis like a lack of controversy this is judge here says i mean you can i mean if there's an evidentiary ruling in it's a get you're the losing are that even though it was in a trial court's discretion discretionary isn't what you hang your hat on you hang your hat on whether it's with without prejudice than it did didn't deal with the other steps to the basis of book motion to dismiss in that correct yes that's correct so he did but if you go back to this i'm sorry to prolong you on this on the c r as t factors so that's what i wanted you to tell me why this wasn't a why you why they weren't the prevailing party based on the c r s t factors i still think there has to be some kind of effect there has to be something that happens and if we get in if there is no prejudice if what we felt was without prejudice what happened what do you mean that now you have to litigate your case in california well actually we don't have to litigate the civil goods at all that's what happened and you have to litigate the seas goads in california and the court found that our case wasn't involving the ok thank you very much but we will come down in grief to lawyers and then go to the last