good morning i'm actually in california so it's very early in the morning this is a case of st impression in the th circuit the primary issue is whether a plaintiff having failed to raise the issue  prejudgment interest before and it's summary judgment motion can then request prejudgment interest in a rule fifty nine emotion after entry of the summary judgment i p f s the appellee here claims that rdict in its favor and before judgment was entered instead of ruling on it then the judge ordered d that it be presented within ten days which it was here i p f s never properly included or moved for  prejudging interest in their case in chief it wasn't included in their counter claims it wasn't included in their summary judgment motion and when i p s b latently included it in their summary judgment reply brief the judge denied pre judgment interest because it was an improper attempt a request to include a request for relief not made in the original motion this clarifies the difference between those generic and this case in austin heck the plane a properly move for prejudging interest before entry of judgment in this case i p s s did not although nd although most are not does not control the decision here unlike most generic precise issue here has been addressed by the th circuit the circuit and several district courts all ruling against the plaintiffs in st state bank of the heigho st state bank versus ohio casualty decided in two thousand and nine the th circuit addressed the pre judgment interest issues on facts that are fundamentally indistinguishable from the case here according to the th circuit and i will quote now please we need only briefly addressed st dates argument that it was entitled to statutory prejudgment interest the bank st requested prejudgment interest in a motion to alter or amend the judgment under rule fifty nine having failed to raise the issue in its earlier motion for summary judgment in other words exactly the facts we have here and awarded prejudgment interest the th circuit went on to say maybe within the scope of rule five thousand and ninety citing auster neck but this rule may not be used by a party to complete presenting his case to the district court prejudgment interest th circuit went on to say unlike post judgment interest normally is considered an element of the judgment emphasis is actually in the text of the th circuit opinion the bank should have requested to pre judge an interest prior to judgment the district court was entitled to conclude that raising the issue preserves an interest for the st time eleven was reversed as opposed to cases saying that there was no abuse of discretion in denying relief under fifty nine i have not found such occasion o in addition to the th circuit to federal circuit court of appeals agrees and explained the policy and reasons behind the requirement to prejudge an interest be claimed before entry of judgment in the united states versus great american insurance which is cited in our great according to the federal circuit court of appeals quote unlike post judgment interest which is collateral to the judgment itself  prejudge an interest is a request for relief on the merits the merits as to do that particular request clane have to be developed during the pendency of the case in chief in other words the evidence that arguments have to be developed and a motion made after the entry of judgment does not allow for the full development of the evidence or arguments concerning this particular claim to relief which both of these cases and indeed the  suit so the evidence that needed to be brought before the court could have been brought before the court was whether or not the sums were liquidated and there was a dispute about that that particular dispute never got  in the case itself because a claim for precision pre judgment interest was not made in the complaint counterclaim or in the motion so whether or not the damages were liquidated which is the only reason why by the way  judgment interest is owed what needs to be examined through the evidence and the issue of the amount because there was a difference in the summary judgment that was granted between two sums of money of them so those two those two primary issues are are at play or were at play in this particular motion and i mean the law clearly is claims for relief that are not fully developed and primary briefing are waived as well so what you've got here is a is actually a and that by the way isn't us vs great american from from the federal circuit  fully examined and fully discovered is is essentially the larger issue here and in this particular case that wasn't available to the happened because the case was over no discovery was available it was over so whatever the evidence interest the federal circuit decision is actually goes on to talk about the very issue that we were just discussing it says that traditionally pre judgment interest is considered part of the compensation to plaintiff and encompassed within the merits so it's something that needs to be developed in the case in chief and it involves considerations such as the degree of personal wrongdoing on the part of the defendant the availability of alternative investment opportunities for the plaintiff whether the plaintiff delayed in bringing a prosecuting action and other fundamental considerations of fairness and that's  th circuit held in another setting because pre judgment interest is an element of the judgment itself it generally must be sought to for judgment with the support of development needed for their other elements that are requested relief big your honor i get these these other authorities which are obviously not eight circuit but but considered the very issue both that the cases that i'm yes your honor and the circumstances where the pre judgment interest is not raised before the entry of summary judgment the district court abuses its discretion by entertaining a rule five thousand nine hundred motion yes that is or is never any case that that well yes i believe we do i don't i don't see a case and read one that specifically says that the judge cannot exercise its discretion if  the relief tonight prejudgment interest because it could not be raised in a reply brief or was it improper and i said for raising it and that that didn't mean by the way the fact that it was raised in a reply brief and then denied is another reason why from a policy an equitable point of view it shouldn't be allowed to then be included in a fifty nine dollars t because if it had been included in the summary judgment there would have been an argument different to possible military making an argument that it wasn't of it wasn't available in this case for a variety of factual disputes in other words there's some issue of fact that would prevent summary judgment on a particular issue we never got that chance because it was only raised in a reply and that's exactly what the same circumstance is when the plaintiff then tries to raise it in a rule fifty nine emotion without ever having entry of just that argument fails for two main reasons st that is not how the supreme court itself characterized its decision in oestrus the supreme court explicitly hel judgment but it was also in that case raised before judgment and actually they didn't have to address the question that we have here your honor i would say that the procedural posture and  untimely as they did here well your honor they said that they didn't want to consider an oral motion it's not explicitly clear what it said was it you should submit a written motion and that was made after judgment just in terms of policy court concluded that a post judgment motion for discretionary pre judgment interest involve the kind of reconsideration of matters in compass when the within the merits of the judgment which rule fifty nine was intended to apply in other words in other words all of the factual argument that need to be developed to be able to determine whether the pre judgment interest is further explained that the supreme court has repeatedly stated the present term interest is an element of the plaintiff complete compensation and it does not raise issues only collateral to the judgment in the main taste of the cause of action action and consideration of motion treasure an interest under rule fifty nine dollars he does not require an inquiry that is separate from the decision on the merits and the supreme court went on to explain then any evidence relating to the question of  precession interest should be by definition available at the time the other issues in the case are tried and a district court should be able to dispose of a motion for free just in interest within a reasonable time after entry of the verdict so as to avoid both the lays and piecemeal the undisputed amount under nebraska law claims are considered liquidated when there is no reasonable controversy either to the movements right to recovery or of any amount of recover however there is no reasonable controversy to the amount of recovery if the sum is either fixed or ascertainable by a simple consultation accordingly an uncomplicated formula for calculating the amount or the right of recovery does not alone create a reasonable controversy and that was that was this vision by the a circuit in the lincoln benefit life in two thousand and want in its reasonable in fact never asked the supreme court has looked at the issue in the case here of why they why the appellant said that it wasn't reasonable they were claiming that a set off should a nd the number of the spring court has looked at that size if you as to whether a claim for set off creates a reasonable controversy and that's been the review construction versus school district  prejudgment interest should be awarded on the entire client so this notion that if a claim somehow can pass that means that it is not liquidated is not supported under nebraska law facts and the argument that could have been should have been might have been developed if the motion for great judgment interest was brought any sooner so with that your honor i think that long explanation demonstrates that the th circuit is right and the circuit agrees the th circuit says the fifty nine he cannot be used by a party to complete presenting his case to the district court and sense pre judgment interest is a claim based on the merits of the case it needs to be raised before the entry of judgment it is according to and by the way if it had been raised before that discovery would have been possible and an argument about no no facts there must be some dispute as to some fact and it wasn't raised so that was essentially the prejudice that was visited upon the defendant and would be visited on any defendant if in fact prejudgment interest doesn't have to be raised before the entry of judgment in the th circuit in ryan versus ryan decided in two thousand and eighteen the court explained that quote motions under rule fifty nine dollars serve the limited function of correcting manifest errors of law or fact or to present newly discovered evidence and cannot be used to introduce new evidence tender new legal theories or raise arguments that could have been raised before entry of judgment in other words it cannot be used to do that so you ask earlier  if our position was that it is it an abuse of discretion to entertain a request that wasn't made earlier in a fifty nine a post judgment motion yes it is an abuse of discretion and that is because there has to be a limit on the number of contentions essentially that can be made after the entry of judgment and that's precisely what ryan and ryan says rule fifty nine means thank you