may please the court lawrence kasdan on behalf of the appellant's i'll try to reserve three minutes the man arguments the defendants make in their brief is this they say now wait a minute appellants repeatedly said that they meant to dismiss their claims their personal claims for good there ought to be a consequence to that declaration but what the prior appeal in this case we've been calling it millbrook one would milburgh one makes clear is that saying your voluntary dismissal is final is most certainly not enough to make it so if it were th this court would have had jurisdiction in milburgh one the statements on which defendant sees were made by appellants in their attempt to argue why this case is different from microsoft for his baker appellants to be sure said that they meant to give way completely to an intervenor and to be sure they thought that was a material distinction in the court probably won't be surprised to hear that to this day we continue to think this was a material distinction from baker but what we think doesn't matter we were wrong this court gets the final word and it held that bob it's a we were wrong to pay for what it wasn't you we were i think my name was on the last decision so don't don't outstanding opinion that i'm a sorry not have lost your not totally a fall on this one so said i'm reserving my right to come back to the trial court if i win on appeal we didn't say that we said something one hundred and eighty dollars degrees differently but this court said it doesn't matter in number one it said there is no difference that appellant's here the same as mr baker to deny jurisdiction on the ground that there's no difference but to now say that that has appellants to as a defense to that difference not only matters but it means everything would essentially be saying heads you lose and tails you lose assuming the court's not going to consider its holding in milburgh one reconsider the relevant question now is not what do we say but what's the legal status of bob it's voluntary dismissal and again that question was answered by this court in milburgh one as explained in our briefs the answer is confirmed by rule fifty four which leaves no space between what is a final judgment and what is an appealable judgment and now we know that the judgment entered after the voluntary dismissal here wasn't appealable that was literally the court's holding in milburgh one and the holding also would be consistent with microsoft for says baker itself the literal holding of the case is the jurisdiction was lacking because mr baker had tried but failed to create a final judgment  suman again the correctness of this court's determination milburgh one that this case is square with microsoft or says baker that ought to be the result here as well there's a very i'm sorry why i obviously the district court did not have the benefit of the hands and decision correct so if if we agree that there is a possibility with the district court exercising its discretion to review the hands and factors that the district court could have come to a different decision but might not why wouldn't the appropriate course be to remand the case for the district court to take a look at  hanson in the st instance because of course the district court didn't have that opportunity in sure your honor while the case has been pending for a long time i'm sure we're going to hear about that from your your colleague representing the defendant that's right but  record is reasonably clear here and i think as in the hands and case the rule sixty factors turn largely on undisputed procedural facts the district court really has no advantage of easy this court with respect to happily cation of the rule sixty factors the other point that i'd make is that while henson was not had not been decided there had been cases that just like hansen found that the six phelps factors which this court found with appropriate guideposts in hansen had been decided and were briefed and cited to the district court in the rule sixty motion the court saw those factors all the henson factors and actually what it did was it decided to go off on a basis not completely consistent with those factors and it ruled that the factors that it found significant were things like judicial stoppel article three grounds grounds that if they were taken to their logical extension really would would compel the conclusion that you can't have rule sixty relief from a voluntary dismissal ever so the district or did have an opportunity to consider all these factors it just found that they weren't the primary factors and a i'm agreeing with you on that the question i have now is ok should really judge bennett's question now that that hansen has pointed in a different direction somebody needs to go back and apply those non exclusive factors and any other factors that may pertain is there reason that we shouldn't say ok district court just like supreme court tells us were wrong or are now telling you now you can't go off on the ground you did please address these factors that have been apparently already briefed to you or not already brief they surely will be what other course you suggest and i infer that you're saying we should exercise our judgment goes straight to it but are we in a position to do that i mean the henson factors haven't really been briefed us either we tried to cover all of them and in fact so there was a case called torent in a case called that essentially did the same analysis that the that the henson court dead and henson's binding honest as precedent that's right and i'm cognizant of the fact that i'm standing here asking the court to do work more instead of the district court and and obviously i would understand typically we do believe the district courts are in better position to make those kind of decisions i think the point i'm trying to emphasize here is that really what we're talking about here undisputed procedural facts and with with respect to the henson analysis itself really the factor that i think the defendants have articulated is one that can be considered by this court and it goes back to what i said at the beginning they say wait a minute we have an expectation of finality here tried to reserve for themselves the right to reappear in the district court and we didn't do that so defendant say what we have an expectation of finality the defendants can't really suggest that they had an expectation of finality that's different from the expectation of the defendants in henson when bob it voluntarily dismissed his claims he was transparent that the fact that intervenor would be coming forward and labor filed this motion to intervene on the same day that voluntary dismissal was granted so as an hanssen case the defendants here knew the case wasn't over well i mean one of the things and some talks about is while you're correct that they say some of these factors are guideposts but we have a size each case has to be decided on a case by case analysis although obviously the henson court did what it did but it is to me at least a fairly unusual factor that your clients were and you did say what you were going to do as you said but it seemed to me it seems to be a fairly unusual factor that your clients were saying you know where out and someone else is going to be rowing the boat from from now on and i mean that strikes me is fairly unusual maybe we could say it's irrelevant but why wouldn't that be a factor that the district court should have the opportunity to look at in terms of exercising its discretion which is which the hanson decision didn't take away from the district court so again only i think the fact that it's that that these are the very same arguments that have been briefed and the case really has been up and down many times in so in the in the interest of useful economy i think that this court could apply hansen analysis i think the analysis fairly strongly compels one conclusion there's another point i would make and that's that hansen sort of jump straight is henson because of hanson i think it's only reasonable to jump straight to the rule sixty b analysis but there's a threshold question here that i think this court can and should consider before it even gets to rule sixty in that and that is well there are twenty two threshold questions st is do we even need rule sixty two to a to undo the voluntary dismissal and i think the answer there is no we may be the only party that's gone back and argued this instead of rule sixty but when this court dismissed for lack of jurisdiction we're back in the trial court before we filed the rule sixty motion on the day the mandate issued we filed a different motion and that motion said as a matter of law the the voluntary dismiss here is not final and therefore we can proceed with our claims and that's true under this court's remand order it's true under microsoft's baker it's true under rule fifty four so before you even get to the rule sixty argument district court you should consider in the court shut that down it ruled as a matter of law that we couldn't do that and that then it entered a new order and that's significant new judgment that's significant too because i think even before we address these real sixty questions we have a new judgment that was entered in this case in two thousand and eighteen that is different from the judgment that was entered in two thousand and thirteen and it incorporates a new legal ruling in a corporate a couple of rulings actually one was there was an undecided motion for intervention that was pending in the district court by mr labor to intervene on the merits that just kind of got wiped out when the court entered a new judgment but so that two thousand eight hundred matters and it isn't contrary to defendant arguments a carbon copy of the judgment that was entered back in two thousand and thirteen and under the merger doctrine that new judgment all prior orders are merged into that judgment including the order denying  there's another important point the one of the few factors that the hanson court found counselled in favor in favor of the defendants position was that at the time of the voluntary dismissal there was a circuit split and it's important to note for this court we voluntarily dismissed well before the henson plaintiffs that's how long this case has been going on and at the time we dismissed there was no pending search in baker obviously and there wasn't even really a circuit split to the extent there was it was very shallow there was a there was an eleventh's or a th circuit case that had gone off on article three grounds but the case that really created the circuit tension with the microsoft case is rd circuit case called comedically it was decided months after we voluntarily dismissed so this really was a change in law and it really did hit the hit the plaintiffs i'd like to try to reserve the rest of my time sure one thing i might ask you about in your reply is what efforts of the mid to mediate this case and whether the p came before the arizona district court and assert asserted to fend ins and that court that his case was gone and would never be picked up again he renounced his ability to appeal the case was gone what you mean that bob its individual claims were gone and would never be picked up bob it said that he would never appeal those claims and in fact the basis for his motion for voluntary dismissal was that his case would be gone finally and that that could only in your to the bent to benefit of the defendants and he was successful on that point but but the case was not going to be gone and the defendants understood that two defendants understood that in intervene or was going to step in and take up the case but we understood and we all had a very strong reliance interest bob its individual claims being gone so it's explained that to me in a class action where you know sometimes people do pursue their individual claims but it's it's very rare for the same reason that mr bobbitt said he wanted to get out so explain the finale reliance when you knew that and intervener was going to be pursuing the appeal and if the intervenor won the appeal the case was was going to go back with your interest in finale that you were going to make an argument that no this process doesn't work and even though there's  intervener on appeal and even if the intervenor wins the appeal the case is still dead we actually did make that argument yes that has been our position throughout and we argued that before this court and you know again we briefed it for the supreme court as well so yes that in fact our position but i mean that was your interest in finale that even if somebody can intervene on appeal that that really any any decision on that intervention on appeal would be an advisory opinion because even if the court said yes you're right nothing could follow from it because nobody could pursue the case even if the intervenor won the appeal well i think you know what happened was that it hadn't happened that the supreme court hadn't ruled was your interest in finale that on going back to the district court you were going to argue no no no because bob it gave up his claim and because the intervenor only intervened for appeal op purposes the case is dead i mean that's a difficult question for me to answer because i think it assumes a lot of things that did not happen i don't really know what we would have done in that circumstance but i think the one thing that was clear at the time and remains clear now is that both the defendants all of the courts bob and bob counsel had a very strong interest in the fact that bob it was never going to reappear in this case well trying to determine because they hanssen court looked at that finale argument what i'm trying to determine is in terms of your reliance interest in finale what would be what was the difference between what happened here and mr bobbitt taking the appeal himself i'm trying to understand what your reliance finality answerers difference is because mr bobbitt got out and somebody else came in on appeal why i think that is a significant distinction  and i think it was you know part of the the court's the basis for the court's ruling and henson was that there was really no interest in phonology because the parties all understood that that name plaintiff was going to continue t and in fact the parties its depleted and included in their situation at the only circumstance in which that name plaintiff's case was going to be fully gone it would be if the th circuit accepted the appeal and then affirmed the denial of classification here the whole premise for you know the appeal that labor took was that bob it was going to step aside and be gone forever labor that took up the appeal and was unsuccessful there's just no basis now for bobby to come back after five years of having no interest no involvement in the case whatsoever to come back and say it my claim should be reinstated i have to say if any party should lack reliance interest in the claim of an individual within a class action it would be your client  they can't possibly think that the individual claim is what matters here what matters is the class action and they understood that the class action effort was continuing tell me where i'm wrong i mean this in the better than anybody else that it's about the class action not about the individual claim of one particular plaintive well situation that we're in now post microsoft is that the class claims are gone microsoft held that there is no  hear a review of a classification into denial when i mean plaintiff takes the tactic of voluntarily dismissing their claims in order to generate review but does that necessarily mean the class action claims are gone forever suppose an individual plaintiff pursues the climb prevails and perhaps then they can argue i think maybe with a little more traction they can argue now but would certainly try to argue that ok now we can revisit the class certification claim because this is the way the supreme court says it has to be done so are we really certain that the class claims are gone forever well i think your honor is absolutely correct that is the normal course and  had been diligence in pursuing that course of action we would be in a very different situation now he gave up the ability to do that he gave up the ability to take his claims all the way to their final resolution and then appealed the class reliance interest in a belief that these claims for the class are gone forever and they've been they were in the business of of pursuing class claims through different individual plaintiffs as class representatives for decades in reverse successful at it so when we look at this factor of reliance interest is where i'm starting on this and i have to tell you i have real difficulty understanding how milburgh i'll be going to had about reliance interest in believing that this case was closed forever we had a reliance interest in that because that's what the how because that's what bob is holders and that's what his counsel told us but they told us only about bob it's individual claim not about the possibility of somebody else taking the baton they told us that was going to give up his individual claims forever so that an interviewer could come in and take up that appeal our position was and has always been that that tactic was inappropriate and would never succeed and we were correct that's what the supreme court held in microsoft up but  that was i mean not not the tactic about an intervener but wasn't that also true and henson i'm sorry but i understand what you mean i mean hanson hanson was in a similar situation and we said not only are we not going to send it back we're for the court to reconsider we're saying that the court has to grant the sixty be right well i would actually  filed before the case was done in the district court and in fact the certitude and was granted right after the case was dismissed and the decision came down fairly quickly so i think that is a significant distinguishing factor in terms of the risk that the plaintiffs there assume well i think that the risk i know that the court was very focused in the strafford case on the knowing risk that the plaintiffs took and decided to hold the plaintiffs there accountable for that no ingress and i would argue that here bobbie didn't just take a knowing risk that he was going to lose his claims forever he chose deliberately to get rid of his claims forever and what somebody else take up whatever appeal that they wanted to take it for the same reason that this court held in strafford that the name plaintiff there should be held accountable to its knowing decision there's absolutely no reason that bob it shouldn't be held to his choice in two thousand and thirteen to give his claims forever and to denounce the right to appeal them now that we know that and sin is there it is binding precedent that we're supposed to follow it it suggests that at least at some court needs to visit the fired there the size again the non exclusive factors but but answer a somewhat different question than the district court appeared to answer we have heard a suggestion from from plaintiff that maybe that's decided to distinguish henson and affirmed the denial of the rule sixty b motion that this court can and should do the same thing here well ok well that's there's another potential argument same got the same basic problem that way in the wake of hansen we have questions that need to be answered that aren't answered by the existing district court order so what should happen next should we try to take that on ourselves should be remanded the district court for it to do it in the st instance i'm not sure we case has been down quite a few times we will have the st time i had this case i was one of the newer judges on this quick ones would it help or hurt things to have the two parties sit down with some of our mediation what efforts have been made to date this case and do you think that's something that the parties should sit down and do well you're absolutely correct that this case has been going back and forth here very long time and it's frankly wonder i think that in my career  and i believe that there was a time that there may have been some efforts in mediation and i don't have the personal familiarity to speak on what was the outcome there and whether and why things might have fallen apart i don't know that i'm in a position right now to say yes we absolutely should go ahead immediate but i also don't know if i'm going to position to say that it would not be successful at all so i'm unfortunately i don't i don't really have an answer to that but you know we can we can definitely go back and  well what i've seen other parties to a times is file letter within a week of argument say whether they'd be open to mediation or not so that's something you can we can issue an order saying that or you can just do it so i think about that after the dart who want to talk to your client about that yes of course well my time is starting to go so i just want to make sure that i make or a couple of other points or one significant point that i'd like to make is a point about judicial a stopped from now taking the position that his voluntary dismissal was not final the very basis for his motion for voluntary dismissal was that it would be final he argued that the defendants would not be prejudiced because his claims would be gone forever he succeeded on that motion the district court granted it and so he is bound by that representation and not only that but his counsel who then represented the interviewer labor continued to represent over the course of five years to three different courts over and over again that its claims were gone for ever it wasn't just something that they were attempting to do but didn't really mean it with respect to bob it his claims work on the scientists and it was not intervene or on appeal made a motion in the district court to to intervene as a class plaintiff and as i understand it the court never explicitly reached that is that right i believe that is correct yes and so even if you are correct that mr bobbitt is judicially a stopped would that bar with the judicial or stop all bar the intervenor from if we sent this case back to the district court saying no you should let you should still let me intervene and set aside the judgment rule sixty b and let me intervene as a class planner well labor's intervention motion the one that was granted it was an intervention that was very specifically for the sole purpose of taking up the appeal he only made that nd intervention motion after this out his nd intervention motion and that there's really no basis for him to be allowed to make a similar motion now so again your your view is mr bobbitt is traditionally a stopped the change in the law makes no difference in the evaluation of the judicial us stoppel the intervenor has no right to come back into district court at all and that therefore even if the henson factors would otherwise counsel in favor of sixty b this specific representation by mr bobbitt i'm never going to come back that that somehow just ends the case well i think we would argue that the sixty factors actually counsel against relief in this case and we we prefer that below and but yes i mean i think our our position is that much like the outcome in the stratford case where you know the plaintiffs attempted to take an appeal they were unsuccessful they attempted rule sixty be relieved they were unsuccessful their case is over that's the end result there's no reason that that end results or not occur here and i honestly all the more so because in that case the plaintiffs were held accountable to taking a knowing risk of losing everything here bob it deliberately chose to give everything  thank you very much miles thank you so much judges clifton and bennett on your questions is there are the class claims gone the answer is no it's often the case after and court of appeals reverses a classification denial that there will be an empty chair back in the in the trial court that can happen in the united airlines case where the name plaintive settles but then the supreme court has told us nevertheless has an interest in appealing class certification denial then you get back to the district court there's an empty chair that's exactly why mr labor labor filed his intervention motion can also happen where plaintiffs individual plaintiff tries his claims loses on the merits but then is still allowed under supreme court law garrity roper to appeal denial of class certification you get back in the trial court that's not a valid class member anymore he lost but there's an empty chair and you file a motion for a new class member to appear so it is i think this goes to the finality factor that the case was still going to be context and what the court said is the whole point of microsoft's baker is that the judgment was not final so it with respect to how much we should ask is there reliance of finality when we're analyzing that factor it's kind of a flawed inquiry to start with and the other point i'd make is we're not the only ones that change position in this case the defendants got this court to reverse basically by arguing there is no finality here now of course they're saying they have an expectation when the voluntary missile was filed by the henson plaintiffs the defendants vehemently opposed it that didn't happen here when we filed our motion for voluntary dismissal the defendants filed the one and a half page not opposition in which they said we take no position with respect to whether voluntary dismissal should be granted so get another yet another distinction from the stafford case with respect to this question should the case be remanded for rule sixty the analysis in light of henson of giving my answer i think it makes the most sense for the court to analyze that it's been briefed but again i know that i think that question only gets reached if this court disagrees with me on the issue we haven't really talked about much today that the fresh two thousand eighteen judgment separately creates appellate jurisdiction in this case and has merged and merged into that decision are all prior orders in the case and we're happy to mediate anywhere and tempted to quote sam oh all right thank you very much thank you both counsel for your argument this case and this panel will return on friday this case is admitted thank you