factor in determining the prevailing party can you think of a judge in the united states of america who would think the settlement was irrelevant to this question i can't answer that question i'm not familiar with all of the judges but what i can say is that the motion based its argument for prevailing party status on numerous cases and that section of the motion is actually record painted in a parent's briefing page  cited five that directly support the conclusion that vacuum force was a prevailing party and every one of those cases remains valid today none of them and then overturned none of those cases i don't believe that any of those cases recites whether or not a settlement was involved one way or the other this court determinations in the cases cited for example case state that prevailing party status is determined by whether or not a defendant that is just dismiss with prejudice or without prejudice against those different than this case in terms of what was between the beginning and the end where the good degeneration between the answer and the motion to dismiss varied in both cases but as i argued the simple fact of the matter is is that we don't know that the district court concluded that the motion across was frivolous because it was misleading because it did not disclose a confidential settlement agreement that led to the dis actually would have been breach of the agreement but regardless the failure to disclose the settlement agreement in a motion for costs not make the motion frivolous under rule eleven rule rather than be supposed to work each side cites the facts and cases that support its position however omitting a fact in my motion is not the same thing as making a factual contention and and that's because it was barred by rule eleven c five b that section states that monetary sanctions may not be awarded the court's initiative unless it issues cause order any violations of rule over them that take place after entry of judgment would be invulnerable to a court imposed monetary solutions when asked specifically in judgment but know that's further support and the frivolous appeal on july twenty fifth two thousand and sixteen weeks after the parties had mutually negotiated the settlement agreement are confidential settlement agreement in which attorney fees are at issue so we do not believe that by over has so many are not mentioning there was a settlement agreement  which would explain make it unbelievably crystal clear the way a motion for costs would be prohibited had been taken out right in your honor i filed my appearance and days after that i do believe mr upper house or client signed agreement in june and i filed my appearance and started working on mr bell's copyright cases early july but by the time i had read the agreement it did come to our attention that certain classes had been missing and we did try to get mr for house or to have this kind of time the difference that i'm in agreement but the title of the agreement is settlement agreement and release their wor we have noted the irony apparent in the parties procedurally improper requests to the court sanction opposing party for failing to comply with other procedural rules one example of that is a case called candidate but the in your honour's this case closed on july eleventh two thousand and sixteen there was an order granting dismissal with prejudice as stated before and that was her the terms of the confidential settlement agreement yet here we were on found that he did not prevail in this matter whatsoever in fact he stated he capitulated rather within the nine months he took nine months rather than that reckless that federal role or the march seventeenth werder was against his client correct yes that was  my client and myself read your order we read it in a way that rule eleven sanctions were not up for argument any more our interpretation  hearing would only be about you know that december thirteenth january february sixteenth orders that have already been granted by judge lawrence and should be subject to be a b s in discretion s if eliminated a statement that the agreement represented a complete and final settlement of the claims a further modification was that it added the specific form of the motion to dismiss