the court counsel this case as you know is is somewhat related to the prior case but should be a bit less complicated procedurally it's a little different posture than the way it was when it dismissed from the other appeal on their own motion so technically the issue of whether the dismissal was proper or asked of victory is no longer relevant to this appeal since that is two years of litigation to defend against the plaintiff's client allegations however based upon the arduous procedural history of this action the court cannot quote fairly call the outcome of the litigation some success on the merits without conducting a lengthy inquiry should be denied that no other analysis northern alice thank you got pretty good analysis of the role from some order that you complain about three explanation that your three ahead of some orders well this ruling was an abuse of the court's discretion for several for several reasons that the threshold inquiry for recovery attorney stays is that issue of achieving some degree of success on the merits  here we did achieve total success on the merits a dismissal with prejudice of every claim against us is a decision on the merits yes as this court has said it's tantamount to a decision on the merits as an in the shorts case they said and adjudication in favor defendants by court or jury can rise no higher than a dismissal of prejudice on the merits if it has with prejudice it's not a procedural it does not affect the final outcome of what's going on a direct effect here every claim they had was dismissed either by the court on motion to dismiss or by voluntary dismissal in  dismissals based on inadequate pleadings were not procedural i don't know what hard means by procedural and how much further explanations have arisen from that but that is at least one label that could be put to the victory that you had that it was b c jewel in the sense that it was the pleading not the merits decision your honor people can put can put different labels on different things always do they always test that is true but this court as well as many others it you had to win the case to be entitled to the fees under that standard we would be entitled fees because we won the problem is that people take procedural mean different signings here how can the court when it's seeking to lower the standard for what is required for recovery returns these turn it on its head and in this case make it a much higher standard th otherwise would have been pretty hard some cases would have said absolutely care but you have met the first hurdle you are the prevailing party in heart they lowered that centers and like you don't have to go that far some  third circuit has come out and said well if you take a step which moves it toward toward your success if the litigation action pressured a party to give up some requested relief the litigation pressure caused them to dismiss their final two claims with prejudice our motion to compel cause them to do for withdrawal or motion compel they dismiss those with prejudice that in of itself changed the posture  case under the third circuit case the cattle this theory that the i guess the second third fourth and eleventh of adopted this court has never dealt with that that would be sufficient to get you through the first step the problem is the court never really went beyond the first step to any significant degree they said oh we think it's procedural we just don't really know why why i granted of this relates to the court ran the relief because they failed to plead on multiple occasions what mirah does it were some procedural victories and the court is trying to determine whether those victories on those procedural matters actually affected the outcome in a positive manner if it's a not to be beyond some kind of trivial relays here it's not it's enough that they want to work things words and having considered the factors not just the first factor but the factors and the parties arguments so we assume that the court considered more than just the point it talked about the court finds the c you don't have to do it here it's about one other places it's they have some other court and that's that's their local circuit but you don't have to go through the bone factors but if you do go the bowen factors i think you need to do a bone analysis you need to explain and analyze the elements the court here didn't didn't analyze any element or explain any element except for the first one cases that where they don't adequately explain the bowen elements that we're going to reverse and say the court abused discretion you're right that i'm not one hundred percent sure which case it is i have a couple of cases where they say that that's what the sanity is or the one lincoln financial case that it's in the federal not i'm not saying that because i don't think that's what they were about they said that that was the standard that you're supposed to explain and analyze each of the album as if you decide to use the but one fact is which as we know you don't have to this court cho to follow the bone factors but if you look at what the factors actually are they don't discuss any but the first ok there's a lot of question as to what bad faith bad faith or culpability i guess is the actual standard there's a lot of question as to what that really means because it's kind of an amorphous term but there are cases out there there's a letter case that we saw that is a case out of california so if there's you know he's just persuasive but they talk about  failure to adequately investigate your client your risk line before you finally lost on that point because the court did do that analysis and said they did not there was not evidence of that day so the court specifically addressed that point the court specifically addressed it but the evidence in the record shows that the court abuses discretion in making that ruling because the facts the facts are complicated emerging an area of the law that the plan terms that we had were nothing like what they're alleged plus half of the claims they alleged against us were not against our client it's five of the five of the ten claims against a completely different entity that they were alleging against of the relative merits of the climbs i mean the fact that we one hundred percent is certainly relevant one would think to the analysis the court didn't mention it mentioned or discussed it in the in even mention any of the other judge as a threshold matter decided that this is a procedural victory when as a matter of i think very clear authority the dismissal with prejudice for whatever reason is a is a decision on the straightforward and i think mean that ninety percent of it is the issue of whether this is a procedural victory not because you don't even get to the boeing factories if it's factors it's a mere trivial or procedural victory and not a decision some success on the merits and how one can say that there is that we had no success on the merits and here i don't understand how that could pay and when you look at the fact that the court in this case as to victory held that their claims were without merit because they failed to adequately pleaded and they failed to do any kind of preset investigation and that as to victory is final  think that's it's finding that there's no evidence of bad faith standing by itself and ignoring the rest of the boeing factors is insufficient and they should go back to the trial court to reconsider  have please the court i agree with counsel that it is a simple straightforward question i also agree with the district court below that it was a procedural dismissal i do not agree that every dismiss my clients could not have prevailed upon that site in fact in the prior argument counsel for the insurance company said one aspect of what you were ruling in that case could be would be whether or not it would require defendants to append plan language you know for their twelve emotions that did not happen here had it happened here then the district court might have ruled on the merits it might have ruled that if we had stated a proper claim then we could not carry it through fact this case do we have to decide whether or not it's a procedural or merits not on your  i think that's the easiest way to do it but if it is purely procedural and if it wasn't because of the merits then you don't get into the question about whether or not all the born factors have to be  explicitly considered and written into the opinion of his court pointed out the district court did say having considered the born factors he chose to elicit date one of them and say that it was not bad faith counsel says well the record shows that that was an abuse of discretion but the record doesn't show that it was clearly erroneous because that would be the standard on the abuse of discretion for that factual finding whether or not there was an bishop bad faith in addition even where this court to find that there whether or not there is some success on the merits the fact that the judge still had discretion not to award fees whether or not he consider all the board factors there has been no showing that he abused that discretion in the consideration that he undertook there is no law that says the judge has to consider and explicitly like on each one of the one factors this is not like a fraud case where if you undertake the duty to speak you've got to tell everything if i undertake the boeing decision i don't necessarily have to eluci exactly what he was saying those cases you know occasions i'm talking about yes your honor i do and the one that i recall that and i think it is the leipsic case where the court said those considerations those factors were not considered therefore we will send it back that's not obviously the circuits opinion and controlling authority in fact this circuits controlling authority is unless there is a complete absence of consideration of the factors prevent it's not required finally it's at the end of the day this argument that just because all of the claims were dismissed that made them a cold prevailing party but it for that purpose the nomenclature of a quote decision on the merits means one thing but some victory on the merits means something entirely different when you're dealing with a dismiss twelve b six i think when you look at the basis for the decision below it was because the case was not properly pled according to the judge at that time based on you know that this is a unique use of the term on the merits because we have other types of law to deal with where that we decided on the merits and we have set a context that twelve b six can't be on the case at trial that's not what was done here we never got the chance key i think part of that goes back to the issue of what was happening in heart when the supreme court clarified the fact that you don't have to be a prevailing party to recover attorney's fees under all you have to have some degree of success on the the entire intention of the heart was to lower the standard to allow people who got some kind of relief to still potentially get recovery of attorneys these we are the prevailing party i don't understand how anyone could say that  less than meeting the first level as to the issue of discussing all of the issues that there i agree there's not a fifth circuit authority that explicitly goes through know post part environment this court did not actually analyze every issue and that's not enough the third and second circuits have gone down that path the templin case which is  circuit actually would require an articulation by the district judge of each factor i don't think the court can as the second circuit says they can't selectively pick out the factor or factors that they want to consider that's i think as you point out earlier i think we can read that if you judge's opinion to say in fact i care considered everything and i'm warner analyze orally here this was an oral statement or was this a written probably is written in the in the or is i maybe he said it hearing but we gardeners judges are texts in that test and they only talk about some of the fact so i just want if you have a law that says by golly that district judge better use every word in this factor or else we're going to reverse your honor i think that if a charge chooses to they don't have to use the bow and block you but i think if the if the judge is using his discretion his or her discretion to decide whether or not toward attorneys fees they need to explain that the basis for either awarding or declining toward it and they can do that several wise if they want to utilize the bow in fact is because they are you know enunciated they're easy to read you can say ok check the box on each item they can to that but i don't think it's appropriate for the court to come in and say well this bad by think i don't think there's any evidence of  job personal jurisdiction or on change of venue or anything they go and they say well here's the factors for moving it to the district of virginia here this one will this one weighs in favor of moving it this one weighs against it and in some i think that it needs to stay here here if he if the judge had done that we would have an extremely hard to think we would really wouldn't have the ability to take much of an appeal from that because he's gone through and analyzed each of the elements and said i'm putting my weight on this side because these three elements you know this like these two i think they're neutral so this one wins he didn't do that so therefore i think that it is improper for them to just pluck a one factor out and rule on it when he's