from being filed what we're asking is that based on about a law based on the rules that the st case that was dismissed based on not filing a opposition to a motion to dismiss or to extensions were granted was ultimately dismissed based on  local rule for not on opposition now another case was filed shortly after probably about one was filed in or the order was filed in february one was the nd complaint was then file in november so there was about eight months apart for the two which is kind of the time is a little bit important here because counsel in the law firm that represented bank of new york mellon had they filed a motion for reconsideration or to set aside that order based on that there would have been a higher standard they would have had a more difficult to show they would have shown more than just good cause in order to get that set aside so the timing of the nd complaint is important here now under there are the ar gument is that based on there is a district court rule that or that decided in the order that said it was a dismissal without prejudice therefore they can file it now nevada law is the about a supreme court has already ruled on this issue in five star capital case that we nevada law clearly says that in that case that was the counsel who failed to show up to to counter calls it was a dismissal then and the argument is that they went ahead and dismissed it with prejudice at that point a nd complaint was then filed and based on the same rational say listen you're precluded from filing the nd complaint here same issue now it's a little bit difficult to reconcile our on it but if we're are looking at you know what law controls in this instance it would be  supreme court controls federal court rules control but they were construing the nevada rules of civil procedure and how they apply to we don't normally apply a state rules of civil procedure we would apply our own do we have to look at this under our roof forty one are there forty one now i think that it's in the diversity so you rule under the nevada but the rules are the same so you can apply either rule to it because this would fall under forty one dollars b which is an involuntary dismissal now under an involved just a dismissal there's a only three sets of you know three scenarios where it would not be a dismissal with prejudice that's service jurisdiction  and there's one more but this would have been based on local rule that you just didn't follow the opposition and you can kind of analogize the same way is that for you know for example discovering you have like admissions and if you don't answer those admissions there d m and mit it unless you file you know nd complaint at that point  based on that i mean if i have any other questions it's a very straightforward you know we were to reach the merits what are we supposed to make of the seemingly conflicting decisions and penny mack and christie rentals collection company did in this case now i think you know just reading the crystal ball they have decided this issue but they would basically have to say that based on this lean it would have still extinguished and they can't sell it they can't withhold the sub priority portion of that and all of sudden i had a situation where you know a motion for summary judgment wasn't responded to and it wasn't responsive to twice and then they went ahead and file the nd lawsuit well under the rules and under the case law i would michael i would i would counsel my client to say listen we should prevail because this is claim preclusion and that's kind of the problem that we have in this situation is that under let's set of rules that we have under the case law that we have we should be have i think it's pretty clear is that this was a dismissal with prejudice there was a judgment issued in this case and instead of trying to seek relief under that order they didn't do that they would involve the nd complaint which is really you know we had a basis to look to for dismissal based on that now law has changed since that's i don't know if we would have father motion sickness at that point in time but at that time we had a basis for saying listen you know based under nevada law you know you don't have a basis for seeking relief in this they're relying on or that was that a dismissal we don't fall in opposition to a couple motions that's without prejudice i think that's an incorrect conclusion i read the case to again a couple times before we got here and that was a person a plain establish that the prior suit was filed in what was done with the basic elements of preclusion yes or no but why would we have to do that when you submitted them in the record below because they were attached to your boti below it did he just did the district or just failed to act on a traditional notice motion below or why why did they not make it on the record when you attach them to your mind i don't quite remember that your honor i think i know that we did touch into the motion but i don't know why they didn't quite make it there you know we i think it was a requested by by the clerk's office this clerk's office that had done that because there was something this in there i think that's what that's what we tried to figure out because i think i you know going back we tried to correct the record at that point because there was a request to do so it seems from the district court's opinion below that he had in front of him the materials that you put in a request seems to maybe be what's happened here maybe and i obviously i don't know i think that we were trying to respond to the claims that we thought the hits we provided enough of the record but i think we that was my st encounter with something like this where we had it so i think we try to do our best but that's not that's the end result that we would why would we even get to them he's conceded that he has trouble on the road why we get to the merits when you filed a prior lawsuit and your firm took two extensions and then did nothing and allowed the case doesn't say that and what it says is that it took the motion which was a twelve b six as on opposed and therefore the motion is granted granting a twelve b six motion would ordinarily be thought of as disposing of the case on the merits and then see if you do that and enter a judgment how could that be characterized as being without prejudice just as your honor said this ordinarily determined to be with prejudice there's a presumption that it will be six motion is with prejudice and given the context in circumstances here which i hope to explain to you this was was a dismissal without prejudice now as we have already conceded the and yet the order did not say it was whether without prejudice so what we need to actually look at is federal role civil procedure forty one dollars b to determine what the import of that dismissal is and  under this rule kind of a sanctions motion but that's not what happened here what happened is the twelve b six was granted and then it carves out in that nd clause three types of twelve b motions from the rule and they are not in those and so your twelve b six is then one that is treated the rest language says as an adjudication on the merits that doesn't sound like without prejudice i apologize for not explaining correctly if i may then what this court has said under forty one that we're not saying that this was a party when a dismissal but when this court has looked at forty one hey it has construed the language of unless  the order states otherwise this is a dismissal without prejudice what the night circuit has said in that context is is that language is just a presumption that the dismissal is without prejudice but that presumption can be overcome by the facts and circumstances of the individual case what about these facts rebuts that presumption right your honor several things and there's only the prior court order was one page it granted purely a procedural grant of a motion to dismiss for example the prior order did not find that they could york mellon status trust was extinguished it did not quiet title in the trust name nor could it have done that because the trust had not asserted any claims against bank of new york mellon in that action it's all that's all true but that that is not what rule forty one b requires does not require a decision on the merits it creates a default rule that says if you're not in one of these other categories it's an education upon the merits and that would seem to be what we have here that's right your honor if we just took forty one b as a hard line rule and the motion to dismiss was granted under the local rule seventy two dollars d which says that the failure to oppose a motion is a consent to granting the motion so the court granted the motion to dismiss for failure to comply with the rule that's what happened granted you leave to amend did not grant leave to remain in that if you seek leave we did not and i think that that's important for this is an important point for showing that the dismissal is without prejudice and that is unless the court finds that and then that would be futile and there's certainly no finding in the court's order or in the judgment stand why wouldn't you have gone back to district court number one and said whoa whoa whoa wait a minute here this case has been dismissed in error i want to amend my complaint please allow me to do so and here's an explanation for why i failed to follow the court rules in failing to submit an opposition brief after multiple extensions that certainly would have been one avenue to attain even if this court were to find that forty one b applies to say that the this was an adjudication on the merits the st the st court order that doesn't mean necessarily that the trust wins even if this court language is saying in forty one b is with prejudice so what we would have here is energy i'm sorry we would have a dismissal with prejudice and what simtec says is that  dismissal with prejudice what we would ask is that well at best what the trust would get would be a reversal but that judgment should necessarily be given to close of effect therefore if there was a proper forum for us to bring the claim simtec says is that you look at the law of the state in the battle law is problematic in this circumstance for looking at the law of the state because what the bad a supreme court said in the seminal ruby case is that you look at a rules however it sees it can have rules of civil procedure it could have disemployed doctrine of civil procedure that people would need to follow in this case and about a supreme court in the ruby case a penny my case has said this is how we are going to have our laws preclusion what are the source of our laws and rules on procedure or state common law he would still seem to be entitled to produce a fact under the same type case well i disagree your honor because