we believe that the district court committed to err on all three points and that those errors relate to two fundamental errors that are reflected in the court's opinion the first  is the statement page three of the opinion that quote the court disputed in all three knew or cases concerns health care benefits for bargaining unit retirees nul three this case does not health care no your honor i think that that is actually the second error that this district court made we remain primarily responsible there is no direct payment by the u a w to the retirees for anything can you tell us to send it to me then that you are not you are not asking you a w to pay either the retiring benefits or the insurance coverage for their retirees well it is clear that we're not asking for the u a w to pay for any of that what we are asking for as one of the damages is that the u a w provided as a remedy for the breach a collective bargaining agreement to nul new rules damages suffered in making the payments for insurance it's actually a and most of us think all of the health care it's a self insured plan your honor so isn't that in effect  doing too little too not at all beyond doing the newel to in no way i'm doing the will to do would be to say the retirees get no health care benefits that is a concept that was the seven circuits martino case when you have a prior decision a prior judgment here in denver to your vendor the north to case but then there is no oil is liable for providing  the array of benefits right and that judgment is not impacted in any way by this lawsuit what about paragraph forty one of your complaint filed ten  seven eleven where you say no the significantly the u a w breach of the shutdown agreement has exposed new rules to obligations to certain retirees with respect to reimbursement of medicare part d and other retirees with respect to the cost of retiree health benefits there is no question that that is a true statement we are not asking for part of your remedy to remove that exposure no more of a no we are not asking as part of our remedy to remove that exposure we are simply as in any third party this is essentially what would have been if it had been brought in the prior watch to a third party complaint is that your is that your premise that you would not as had to pay either the benefits or the attorney stays in the absence of the unions action i think that is a true statement your honor but that doesn't red correct to the extent that there has been a finding that there was a violation of arrest yes your honor that instrument and what it's basically doing and quite honestly the that we have except with respect to the shut down agreement that is what judge crist held that issue was never pushed beyond judge crist so holding and so by  has actually held that parties can be dismissed in a variety of ways rule fifty four b is certainly one way that that can be but that isn't the only way another way i a very simple situation under rules fifteen and twenty one there was a rule fifteen amendment the rule fifteen amendment in the second amended complaint defendant the sixth circuit has expressly held that it makes no difference whether rule fifteen or rule twenty one is used to eliminate a party with a court or this court held that and so over a machine an equipment company versus m r s that's one eighty one f thirty seven fifty nine and seven sixty three it is a situation where holding under similar rules basically says you're out that's the end of the discussion you can't read fifty four through fifty four added picture what the important rule fifty four is  that's point one the second point is a very different one in that is fifty four d d even if it were possible we submit on that point but that's not relevant to whether or not they state a party because they didn't there isn't an obligation once a party has been dismissed as strange chris opinion did for us then to drive bring them back and a third party defend which would be the proper way we would be purportedly as it did then this claim that you are now raising in this separate action well first of all it was only as a defense defenses do not constitute a counter claim or such if they actually do then in fact we still have a claim viable because this was a summary judgment and vendor summary judgment wouldn't eliminated a counterclaim because it didn't make any ruling on but that's on the side the reason why it was done your honor is because we had to address a pleading that's still listed the u a w as a named plaintiff and in so doing we also made denial of we basically recognize that the u a w is a bargaining be on behalf of active union employees we made various other affirmative responses why because the pleading hadn't been rewritten to address judge acquits decision by the second amended complaint and the third amended complaint the complaint was rewritten to adopt and incorporate judge who has decisions in which judge question already dismissed  litigation that you're bringing now well your honor they would have protected themselves by not violating the shutdown agreement but that's before any litigation when when you are standing in newell two is there any way that the u a w should have protected itself that you think they failed i think quite honestly your honor at that point they would have had the opportunity to file a counterclaim in dismiss the u a w because of the shut down agreement and judge quist agrees with you is there anything that the u a w should have done at that point if they didn't do to protect itself against this third case that you brought honor the problem with that being a compulsory kind of one is it doesn't come out of any of the same transactions that is the shut down agreement is not part of the vendor complaint it is nothing to do with the lawsuit contrary to some statements everything in the complaint relates to as a very simple issue do you have an obligation nul to provide benefits it's your theory of rel w involvement and support and so you know be have been theoretically possible for the plaintiffs to suit you entirely independent of the union and perhaps the end you know you'd have a point but that's not what happened there how theory is if that were part parcel of the sign then well your honor judge quipped expressly held on page twelve with his opinion that they are not part and parcel of the same thing if they had all been part and parcel the same thing our  would have been much stronger on why we would have been able to have a dismissal of the retirees they were not and if i can at least answer your time and orders if you want to give a no absolutely not i mean what nominal party or no it's a it's a party subject to a counterclaim i mean for these purposes clearly but not anything if you want to be subject to depositions or discovery requests or anything else but just just to be served with a part if the former party is still a party they have to respond to all this and i don't think that's what the rule is i mean are you are you saying that they have to be active in everything i'm saying you could not be active you could not  really a passive party until the final judgments rendered that it is a part it's a part ok and if you're serving the counterclaim you've got to answer the counterclaim even though even though you've been dismissed absolutely you do absolutely you're still important to the case because that ruling is not f not as a matter of law real stretch it's a real stretch i mean given the availability of attorneys fees on the wrist and given the the the damage to the retirees from losing having these health benefits for life i mean i think it's a it's almost a quiet time why would they not bring their own or i argument to dismiss they said that because of the breach that's always the hope that's going to the entire litigation and not only should the u a w be dismissed but the retiree's claim should be dismissed judge groups rejected that said that  and they did i don't i know i'm understand that your position i'm just not sure i'm just not sure i mean certainly under the terms of rule fifty four there there is no judgment has been in that that's quite right but i don't i doubt i mean i mean i'm not saying it's wrong i'm just saying it's a little striking a plaintiff would be hard pressed to say you can't you can't turn around and sue me because i haven't been finally  classic rule against splitting a cause of action you can't for a transaction occur you can sue and say here's my theory and here's i want to recover these damages then you lose then you turn around and say well i have a new theory you know on the same transaction the same set continuation of the action but they didn't actually inject the other part of that claim a breach which is resulting damages so they did what one of what a plaintiff would be thrown out of court for doing on rest or to kind of grounds clearly they just did it as a defendant but i think the same principles of judicial efficiency of fairness to the parties of getting all issues resolved in a single case when you're the one who injected into the litigation to begin with look at the eight percent rate part of their defense is that they want to order the u a w can reimburse the defendants for the costs incurred including legal fees so isn't that in a stand a counter claim by its own terms case the affirmative relief they claim to be entitled to and that's the basis of the decision below and all to the motion by will to dismiss the case as to both defendants was based upon the  agreement and the alleged breach of their right that's right that's what they brought the shut down agreement front and center on their motion to dismiss and although they now claim that that also entitle them to an in do something beyond that and in the nature of a counterclaim i mean the the occasion one of a resident of the six motion to do that to were but they couldn't they could have at any time said based on your theory you know give us an injunction to stop them from funding it or order them to pay what they continue to fund if they do continue to fund it i mean if they actually asked for that they just didn't follow anyone argue that their attorney fees and costs they don't know the final figure until all the litigation is going on yes the only thing the u a w could have done would be at the fire at the end of the day when that interlocutory really became final bring across appeal from their appeal saying they were improperly dismissed as a were stopped from raising that claim because they didn't bring it purposeless really vexatious cross appeal to this court using up this court's resources the only reason the u a w would have done that was because it foresaw the new rules reaction running several points as to fifty four b there are cases that hold even where a fifty four b judgment has not been entered that the party that's been dismissed is no longer a party the seven six two we cited it in our brief those address that point directly to the point as to what could have been done if in fact there had been this concept of a counterclaim being addressed or some put on a notice in the first answer the u a w would have had a good reason to come in and file its notice of appeal the adverse decision against it the reason why it was not a did not appeal was because it recognized that it was no longer a party the situation additionally is with respect to just w did when and yet was on the underlying merits but because it brought a suit that was breached in breach of the shutdown agreement it had liability for damages this is a context in which the bulk of the activity by the u a w was very much post complaint by the u and judge moore in your route we just sit here and i dressed that issue very clearly cite raleigh several times in our brief primarily on collateral stoppel and on the issue preclu activity that is a situation that is very much indistinguishable from this case and then there is the united states versus snyder case which we cite in both our initial snyder and his medical group filed initial complaint to stop the us from cutting off those benefits so much to a declared or a judgment action the united states prevailed in that case but did not file any counter claim to seek payments that had been made after it did a decision that was favorable to the united states saying there is no right to these benefits the united states then followed i filed a separate lawsuit after the resolution of a prior case sewing gosh we're entitled recoupment here the motion to dismiss was based on what you have to either that should have been a compulsory counter claim under rule thirteen and you had to file that in the prior lawsuit they didn't court this court said no where you have a dismiss prior to having to file there isn't an obligation in this case we very much have a situation where this isn't a compulsory counterclaim because it is then essentially all third