should not have been entered as a result of my condo i believe that a sanction against me however not against my client would have been fair and still would have been appropriate still is appropriate however the district court i believe abused it discretion in dismissing mike's client's case for one of the products prosecution instead of imposing some other solution st the record is devoid of information that the district court actually engaged in an exercise of discretion when it dismissed my client's case there's nothing in the record showing that the court considered three important elements that it should have that being a delay country mission is conduct and i just when imposing the most serious possible sanction upon my client it is true that a court need not impose lesser sanctions before dismissing a case but the court must at least consider imposing lesser sanctions where the record reveals confirmations conduct or prejudice the exercise of appropriate discretion does require the district court to at least consider imposing a sanction less severe than dismiss in here the court hearing gauge had the court gave such an indian inquiry it would see down the dates and i missed the court calls the court had been completely informed and was able to move forward with the scope rescheduled that was needed yet there were numerous status reports filed by counsel for mr crean back along with counsel for home depot at the time of the dismissal all of his discovery had been completed discovery was closed and the case was completely ready for trial or the district court dismissed my client's case based solely on mr previous counsel having missed multiple status hearing this is evident in the district judges missile which revolves a single sentence to the explanation of business and for dismissing my client's case and mention delay or the absence of prejudice and when it failed to impose a lesser sanction to make punishment fit the crime it abused its discretion the district court also abused its discretion when it failed to consider that there was no prejudice suffered as a result of counsel's conduct counter measures conduct i'd like to point out i looked it up in merriam webster's dictionary country mischa's conduct is described as a stubbornly disobedien or rebellious conduct at no time did i ever engage in such conduct during the entire course of this case summary i don't want to make excuses and it's not my position that the district court did not have the authority to issue sanctions against me whoever given the lack of prejudice confirmations conduct into lay of the case all factors the district court should have considered this mike dismissed my client's case with prejudice which has been you your honor jonathon sector man for home depot cravaack attempts to narrow the basis of the court's dismissal order to the last three missed hearings however a review of judge fireman's dismissal order and the warning that preceded that order confirm that judge firemen considered cravaack entire course of conduct throughout twenty one thousand before he issued the warning that warning specifically referred to the two missed hearings that immediately preceded the warning as well as another missed hearing that year and it also referred to the pattern of behavior that prompted judge him to st note places very little importance on court orders and then prompted judge him to sanction creep back and if the the warning referred to each of these infractions by the docket entry number the number on the docket that memorialized that behavior and then when the warning went unheeded judge his in his briefs where the judge dismissed the case after the st infraction and did so in a one line dismissal order that provided no context for this for this court to evaluate the judge's decision making process mr secure men like those a question let me ask you sure about the scope of the appeal what issues do you think are before us on appeal in other words is the appeal timely with respect to the dismissal the rule fifty nine or the functional equivalent of rule fifty nine denial in the sixty me denial the mr crean filed his notice or his notice of appeal beyond the time that was initially allowed but then he filed a motion to extend that period and the judge granted it he filed it i believe within two days of the his deadline to do so and since the judge granted that i believe that the entire case is before this court he however had on a he granted that on a sixty b motion after having previously denied the fifty nine correct he there's some question about that initial order what they motion the written motion whether it was a fifty nine or sixty claims that it was a sixty and then in his briefing before the trial court judge he denied that it was a sixt the motion and he said that the oral motion was the only motion then that would be the sixty be motion that would pull the time however if this court finds that that was a fifty nine  emotion then the arguably the appeal of the original dismissal and the original written motion would be untimely but based on the judge's finding it was since he granted that extension we believe that it was all timely however again if the court finds that that was not a sixty b motion then arguably it is i'm timely now with respect to  x behavior he regarded numerous court orders and at that one point he prompted judge him to admonish and to note that he placed very little importance on court orders that did not change his co and he was then threatened with sanctions and then he was ultimately sanctioned and he on appeal he does not even acknowledge that he has been sanctioned instead he claims that that was just a condition however the attorney fee  war imposed by judge him was a sanction and that shows that there had been prior unavailing sanctions there had been prior consummation conduct and a delay and he argues that the delay  was minimal because home depot's attorney was present at the at be hearings but it is well settled in three penny plus other cases by this court that the failure to  attend multiple hearings constitutes a delay and the failure to attend even one hearing combined with the other infractions would also constitute a delay which justifies dismissal so there's a clear record there's a clear record of confirmation conduct and there are prior failed sanctions this is not one of those cases that has creep like cites in his brief where the judge dismissed the case too hastily where he did it on the st infraction he was well within his discretion to dismiss this case and he was his decision was not fundamentally wrong and it was one that reasonable people would agree with now turning briefly to the sixty b the oral sixty b motion that mr trial has only purported excuse is that his attorney believed that the st two hearings  it was attorney secretary excuse me believe that the st two hearings were not actually set they were just correspondence however it's well settled that it is the attorney's burden to monitor the docket and to review the court orders and mr cre vox attorney did not do that so this is a case of at least ignorance or negligence if gross negligence with respect to the last hearing he argues that he thought that the hearings were both canceled however a cursory review of those two orders issued by judge feinerman confirmed that they both canceled only the hearing in front of judge feinerman not the hearing in front of judge one taste and so again a cursory review would have confirmed that had pre attorney reviewed that he would have known the hearing was still on and for that reason again his counsel's conduct is at the very least negligence if not gross negligence regardless of how the court categorized as that behavior it is it is not one of those extraordinary circumstances that entitles him to sixty relief so for all of these reasons and the reasons in our apple libris home depot respectfully requests that this court affirm judge feinerman in all respects thank you thank you steve well judge would like the st point out that i did not disregard any court orders and i did miss some deadline and i said i'm not making any excuses for that but this caused me to delay more prejudiced in this case like i said when this case was dismissed there was everything done in this case that needed to be done required to be done  again i'm not here to think skews this but the bottom line is this case was dismissed for my missing court hearings and there being a warning that it could be dismissed i did miss the court hearings nothing else  refused to produce those documents when the defense attorney appeared for documents section fail to inspect the defendant's documents it's almost a year after the court ordered him to do so obtain repeated deadlines to submit a pretrial order but failed to do so the conduct that went on in those cases by counsel is extremely well above and beyond missing court appearances for case management reasons i think it's obvious here if you look at all the case law that the court had every right to look at less draconian measures or sanctions here and if you look at the record he never even tried to look at and it was as i stated before in his order of dismiss missing those hearings that's the only thing that's given and like i said the court has an obligation to look at other elements as confirmation is delay and prejudice and none of those things occurred in this case