not clear as to you know you allude to settlement i see no rule forty one that is a result of the settlement  he was reduced to writing i presume and nothing was put on the record before judge brody there was a document that was drafted the transcript seems pretty clear what what's the deal what's the deal  there's no order anywhere and there's no agreement anywhere and that for our purposes there's nothing before us and we have to move on we as a court have to get to yes you agree with that yes based on the pleadings yes ok no you said the dish record abused his discretion exercising supplemental jurisdiction but if did you really want judge brody to dismiss the action a week focuses on your post verdict motion it's not a general notice of appeal where you're just appealing the final judgment as as a consequence bound as well so what i mean specifically is judge brady turned your motion as it related to the issue of summary judgment on employee ursus independent contractor as a motion for reconsideration and she ruled that you were out of time and did not dispose of  did not have a substantive discussion on her prior ruling now because of her quitting it as a motion for reconsideration  and her determination that it was untimely and the way you fashion your notice to pill it appears to me i don't speak for my colleagues it appears to me  so what that means as far as i can see and i'd like you to help me if i'm wrong is we can review her determination of whether it was timely or not  and and if if we agree that it's untimely i don't know how we could get to the substance of your argument well i don't agree with th not independent contractors but rather employees you were the only issue the only issue that there was at trial was the amount of damages but she but after the trial you wanted her to look at that issue again what what how else would you quip that but a motion for reconsideration but i'm well she makes a motion for war where we a motion for reconsideration if you want her to look at the summary judgment determination that she made prior to trial now where after trial you style your motion as a host verdict motion how  reference to her opinion of june thirtieth two thousand and fourteen foot no one in the appendix it's page five five four a and she says  all like all i can say is that what she did was take the facts while i again from from her june twenty denied and went ahead and put it in her jud thirtieth two thousand and fourteen opinion the facts are all disputed there is no factual dispute on the basis of the facts that are in the june thirtieth two thousand and fourteen opinion what we have is facts sufficient to the child to establish whether the individuals dancers are employees or independent contractors and we have all and everything that we have filed with the court taken the same exact standard used by one there's a connection between the specified in a specified orders to the intention to appeal the specified order as a parent of three the opposing party is not prejudiced and has a full opportunity to brief the issues  have fully brief issues so that when people hear the mike mike questions on the merits here is it looks like judge brody did a very thorough job of saying that these were employees what's the argument the subdural these are not employees but rather independent contractors i think that the point demonstrates it makes all the difference in the world as to whether they are employees as opposed to having contractors is  the performance of their work but there was a lot of control exercised by the marriage or well it's a difference in in the nature of a control where the establishes it's under ten minutes and our back and answers on average on the floor of the premises rest of the time their socializing meeting patrons many instances there are a patrons who follow particular dancers and they go for private dances whose private dances oh and twenty dollars for four minutes hard and the reason that they'd say  twenty dollars for four minutes is in order to go ahead and provide the theory safety and security for the dancers and the dancers really go ahead and generate income but it looks as if the only real element you might have your favor is that they're not permit it but they can still be part of employees so if there are certain intervals of a business  and there are certain rules that have to be abided by for see if you patrons and the dancers the dancers for many dancing on the stage or ten minutes for every given our leads them to be independents for close to ninety percent of the time and they have the most private dances they move from one location to another  for ninety eight through about five fifteen the internet the publication that the dancers put out and it's very very  the contents of the notice appeal but the failure to make any motions under rule fifty during the trial so when judge brody was reviewing the book fifty b motion as it was titled the post judgment motion it wasn't really a rule fifty v motion because it was a renewal of the rule fifty a motion so most of the trial was conducted with almost no objections and no motions for judgment from the defendant the  here so that's that's where our waiver argument which is what the judges actually did equivalent to a grand a partial shoulder judgment or favor so i would say that's that's close she doesn't actually she did the order did not  you could you could argue it did but we have a trial where there was an opportunity to put into dispute if they were if the appellant the defendant believed that the record been developed and judge brody got some of the facts in correct there was an opportunity to put those questions to the jury and the appellant didn't take that up to the appellate let this proceed as primarily a damages trial with no objection and there was an instruction presented pages it continues to five fifty one this is close as it gets to a smoking gun in a misclassification case involving an independent contractor defense at the bottom five fifty there's a heading schedule who policy there's a required four day minimum there are only selected slots the dancers can can choose to work so that you know it's not it's not like a contractor who can decide what time of day of show up there's there's very limited  windows that are set by the club there's prices attached they have the the workers have to actually pay to be there which was the basis for unjust enrichment claim but there's there's a lot of evidence of control just on these two pages not week right so it and i think judge brody actually did give them some credit on that factor the permanence of the working relationship she actually said it you know it may cut in their favor but most courts that have dealt with this fact pattern so that's not really dispositive issue you could be a bartender working it for different bars during the week but you're an employee of each one of them in that's a pretty similar thing here plus as i've already mentioned the management of the club actually tried as hard as it could to keep the dancers there longer and make the relationship more permanent so there was some flexibility that factor might cut in favor them a little bit but then we have five more factors and it's lopsided  the fourth circuit addressed almost an identical factual case and right down the line their analysis is the same as judge brody's that the control is evidence i've already mentioned that opportunity for profit and loss those factors primarily controlled by the club the club set prices of the dances not the dancers and i'm not sure how many independent contractors there are in the world who don't have some ability to set their own price or to play there's a number of them briefing and and there were allusions to this below i don't think that was actually an established fact and i think the testimony presented by not only ms vermeer but several other dancers who appear at trial was most of them they don't have a very developed following they  show up to the club to do work and whoever's there is there they're not they're not they don't have followers some do maybe a handful do but the record that was developed here didn't really show that that was the norm that would be an exception  and even then i don't think that would be a dispositive factor we're talking about one place of business where the dancers come to to work once they're there almost everything that happens is dictated by management yes the dancers you may go out and hustle to try to get these private dance sales but that's not much different then a waiter or waitress trying to get more tables by moving quickly and you know maybe pressuring the front door person to direct them some other performers yes so i mean typically they would have a contract where they would be paid a fixed amount for one performance and then there they're gone it's factual dissimilarity there are some entertainers who perform at these types of clubs and again this is a small number but most of them perform in the adult movie industry and then they'll go on tours to these clubs and they usually have a guaranteed payment they get there they do one or two shifts and then they leave the dancers that this class represented are mostly local workers who are mostly working there multiple days a week some of them for many years at a time so the you know the typical type of entertainer that we think of like a musician or comedian very different situation here and again there's a lot of control over what the dance is once they were  there the rule sheet ever who referred to several times on the five fifty one there's a list of all these fines that were imposed for things like being thirty seconds late to the stage you know jerry seinfeld doesn't get fined thirty for being very seconds late to a set so that's that's a a big distinction between a real independent contractor and the the workers here if i may i did want to clarify a couple things on the settlement if there's a little bit of  confusion because the dispute emerged sort of after the trial about well there's nothing in their record there's nothing presented in the in the appendix the trial transcripts are now available in the district court record they were not at the time claim for an hour minimum wage seven twenty five was their damages seven dollars twenty five cents so they had that income and the difference is the f l let's say has a one hundred percent liquidated damages provision so if you recover seven twenty five for an hour you'll get another seven twenty five pennsylvania the max you could get is twenty five percent so there was a minor conflict there we wanted to resolve that conflict through the settlement provided be opt in scum consideration for their liquidated damages are stronger or more valuable and then try their underlying wage claim together with the rule twenty three cos that's exactly what we did we were clear about our approach from start to finish we knew these twenty two individuals had parallel claims we were not trying to get seven twenty five under the federal law and seven twenty five hundred pennsylvania law absolutely did not happen the agreement when you do if you if you do get into the trial transcript every time is that matter is discussed we say it's liquidated damages it on several occasions judge brody turn to mr elliot he said is that your understanding and he said yes so that's that's it if there's no double recovery from the problems that emerge with the settlement aren't really relevant to this appeal but they have no effect on the amount the judgment  ok thank you it's really scheduling a house he's around the neck of all of the dancers that's not the case at all the club in order to be busy stay busy made every effort to bring in dancers the dancers exercised their own discretion if they did not want to be there they left that we have submitted to the court the analysis that was dogging that shows the number of dancers what dates how frequently and you can track and see that there are individuals who have patterns it is not a situation where  t says very clearly the reason for putting out these penalties the fines was to try and get more women actually coming and coming on a timely basis  friends to different venues to see we were larger crowds this is not really an onerous situation they are businesspeople and these many of them have done very well sixteen been independent contractors the creation of dancers in the united states now as being employees started with a lawsuit a class action bought in new york about fifteen years ago so there's a long history that existed referred of us but the argue is a fairly so people were fighting back