question on this cross appeal that the panel has asked us to address today is the issue of whether a district court may word legal fees as part of a forty one  also i think the district court cases are worth looking at in this case and the district courts are used to dealing with this in i think the overwhelming number of district court cases which we cite but it's not only those circuits we also have the supreme court that st question this is an exception to the american will there's no question about it the question is whether congress intended to make an exception in that the supreme court case in control onic the court said quoting absence of specific adopt the call of the fourth and seventh circuit interpretation of forty one d i think the district court made clear that it did not think it needed to make any findings on this issue so we would argue that this should be remanded for the district court to mak possibility i mean there's ways to do it there's an inherent powers the courts have but you're saying what you brought before us is that rule forty one costs could include attorneys fees so i'm having interest that let me address that i mean your honor we think the seventh circuit will does not make sense for the following reason first of all the underlying statutes that the court's talking about in most cases provide for attorneys he's in the event that the party is a prevailing party so it's a merit based calculus forty one calculus there's no reason why the concept that congress said that a prevailing party should receive relates to will forty one feet which is purely a procedural rule it's not a substantive rule in this case illustrates the problem with that analysis because this is a diversity case we're the court is applying the substantive law that states in many divergent cases including this when you have common law you have contract law and you have tort law there will be no legislated intent to look at in terms of shifting in diversity case so saying that the court should look at under forty one the underlying statute th statute and it diversity cases like this doesn't follow and you know the eerie eerie tells us that the federal court follows federal law on procedure and substantive law so why should for example a contract case which this is essentially a comic a sort case have a different outcome because you are state common law and there will there will be no statute to look at state common law cases so we think the former sensible reading of the rule is to provide discretion to the district courts and the congress when it passed or when it approved federal rule forty one the inherent in the rule is the bad state you can have a perfectly meritorious case but the point if it is still subject to forty one b that's nothing to do with the strength of the underlying case it has to do with the procedural problem of the plaintiff bringing repetitive cases so the notion that the availability of attorneys who should turn on whether you're the prevailing party or not really is not consistent with the gate keeping function of roof forty one route forty one is something that the court rules on at the outset of a case to determine whether the gate opens it relevant whether the party on the playing side has a good case or bad case so impose costs on us she could have noted in that context that was bad faith but rather she made a point of saying i'm not doing this because i'm finding bad faith i am allowed to put this burden and have you pay this money and jump over forward without any barrier and without any obstacle but it were costs imposed and those had to be paid before we were allowed to go forward now the district court didn't mention fees in her decision but she did make a finding that she was not going to penalize she did not gives no textual support to the notion of attorney's fees and she's not the only just a court that has made that error but when you look at the body of jurisprudence particularly with supreme court orders prudence it's quite clear that the better result is the result that has been reached in all published decisions by all circuits is that we do not depart from the american rule and we do not impose these except in those instances where we can evidence  and we find that intent by looking at a different statute search really that's the question before us today by when we consider that the southern mr raising the concern they moving forward and refiling would be a reflection of bad faith  can see that counsel and party all behave properly so there's no there's certainly no evidence to point to that this district court judge was unaware of her inherent authority as do i think that the fact that she had the case before her she had them argue right at the very beginning that the case should not be allowed to go through without some sort of extraordinary caution so she certainly knew regardless of her legally correct finding on what the term cost rule thirty one d she knew she was making a legal analysis and i think she she pair it correctly that is the only outcome consistent with the supreme court jurisprudence but she certainly knew as she astutely people sitting in new york running that google bank in new york are the ones that are calling the shots about what's going on in mexico and so we credit in a very simple straightforward way in delaware is that there's no s the bank should be allowed to keep this money and there's no litigation going on that except here in the united states they will but in a court that has the power to order city to turn  very clear tax the tax costs certainly congress and the rules committee know how to use the words attorneys please senses when they want to use those rules so you don't want to basically undercut the  apply baker in alaska this doesn't fall into a category of creating a second prom and then given the large number of congressionally past statutes that have the shifting there are going to be many many instances when but with the language that was it was deleted in the amendment to forty one t that is the court making such water for the paying the cost of the action previously dismissed as it we deem we can say it was an american elsa's when we look at the federal rules but term costs should be in fact interpreted uniformly and it should be interpreted consistent with the american world to exclude fleas except in those instances when the meaning and that agreed upon meaning is the american war and so here we have no statutory basis upon which to hang your underpinning of the american role and the american role should prevail and there should not be because of what you believed was bad facing your own best that's correct we did not like him for what it's worth the reason we did not is if you look at the decision of the judge in the southern district case where we did aspect turns fees and we in the case for the plaintiffs clearly pleaded the case or whatever this is an absolutely clear cut case of form shopping there is no question about that there's no be certain to leave the southern district of new york where the case was brought  bring in the southern district where the diversity or not doesn't influence which district court you are says in new york besides diversity issues besides possible jurisdictional issues that would have caused the case to and ask her but if so thing happened in new york so that there was a decision made to dismiss we were told it was one thing you say it was so they will but i'm not sure what that something else all of costs a bit of course the district court has discretion and finally your are just on the on the textual question the argument that the rule does not contain the words attorneys fees and therefore you can't expand the facts before her she had our representations as to why you got off on the wrong foot and you know why we had done what we did and she allowed us to voluntarily business without prejudice despite the fact that she had been just on the verge of