question the work was being performed at some point there's no question that there was a written contract there's no question that there were going to were some sudden their resources sent and some of them were paid and were able to demonstrate it certainly it will be a indication i mean the fact that they were created at around the time of the work was performed is a medication that workers perform but you also have in the record evidence that work was performed and i pointed to a p demonstrated is that they've demonstrated that they did not receive the invoice and they also demonstrated we wouldn't it doesn't that we sell to preserve the emails but the invoice the invoices themselves i don't know if they can't show convincing evidence fabrication their own expert but as our commission says the he all he can do is say it's easy to manipulate data and it doesn't make sense to him he wants to see more so that i don't think would be by a preponderance my understanding the bird correct sir fabrications clear it's clear and convincing evidence for spoliation i think that there is some indication i think that appendices additional do it just like costs and so this is clearly a case where rule the fourteen day time limit should apply here the amount had not yet been determined so clearly they had said that reliable because of a host of issues and that even if they were genuine that would not prove that they were actually sent and that's the critical issue whether they were transmitted to my client which would evidence were being done they were never sent and so had absolutely no credibility whatsoever and failed to provide any objective evidence that he either sent emails invoices or that the virus happens the evidence clearly established for fact one com that never sent any of the emails know fabricated each of them three did you know intentionally destroyed the native versions of the fake emails and invoices to hide the fact that they were fabricated and forge and you know made up the virus story in a further attempt to hide the  the state at the outset because this whole transaction was pretty sure by a rogue employee without health tires knowledge and we had these payments yes we have one more minute of your initial perry thank you so judge worst absolutely no fraud on the court namely its cover case under nd circuit precedent a court may issue terminating sanction when the plaintiff repeatedly deceiving the court and his adversary about matters relevant to the central claims in the case and that's precisely what happened here false testimony on three separate occasions about the the e mails invoices in virus at his d deposition in sworn declaration and that the evidentiary hearing and so this is an alternative grounds for a firm and finally  action so there was certainly no abuse of discretion in any of these decisions and we ask the court to affirm judge force decision in its entirety turning to the nd appeal of just castle decision we st asked the court to dismiss the  because as we noted the appellant failed to file objections to judge wings report and recommendation and thereby waived its right to appeal although as the court noted in its we've moved to dismiss this in the court denied without prejudice and noted that that the amount of attorneys he awarded that decision should be affirmed for three independent reasons st judge castle correctly held that rule fifty four dollars would deem does not apply here based on its plain language the plain language there is quote it applies to a quote entitlement it does not apply where a party has already been is awarded a right to those costs and that's what happened here judge forrest already awarded cal's higher right to attorney fees and costs in her decision dismissing the action and this to this interpretation court may direct so the rw fifty four recognizes that the that motion is to establish the right to an award not to set the amount i don't see any objection your opponents don't contest the fees because the spoliation or the dismissal does forces order was interpreted by the district court and the referral and not contested with regard to whether you are entitled to that these other than on the fift and here are briefing on the amount of attorney's fees occurred only two months after the judge forced decision that was certainly the issues were fresh in all of our minds there's an alternative grounds for a firm is here and that is rule fifty four did not apply where the court a party for violating the federal rules of civil procedure and here judge force decision was based in part on the sink in for violating rule thirty seven dollars when it's not clear whether the award was rooted in a violation of the rules order or the court rather it is appeal column stated in response this argument that we didn't read this in the underlying briefing and that's all we did we made that in our argue that in a reply brief which appears at docket entry number ninety four in the southern circumstances particularly judge force order did not direct the parties to establish the the amount it simply ordered complet to pay all the fees and then she directed the court to terminate the case the following day and on the same day the  almost a full paragraph to that issue and so we think in some we think calm lives arguments have no substantial merit have no merit whatsoever and that we ask the court to dismiss the nd appeal with prejudice or in the alternative to these e mails didn't actually exist so it's not a question of their that's their argument that's what they set and it's not a question of whether we actually sent the destroyer the emails it's a question of whether we fabricate emails so therefore i believe the question is clear and convincing