before the district work inform the district court in artfully and as best as he could for some forty minutes about what is now the subject of this appeal the plain error that has been it been committed by the court of that in this case so he says any c f one hundred and twelve dollars which is about all of the defendants because it just it terminated the matter against all defendants judge cook she was then talking about she was taking the ruling against three of them and applies against everybody and he spent more time court talks about defendants in the plural but it refers to orders that the magistrate court had entered earlier specifically referring to an order that's identified as e c f eighty eight versus me yeah i think i lucky print and under a crowd q and make specific findings against them and indicates to them gives them warnings all kinds of things are going to happen if they don't do those who don't don't comply with the court's orders to appear and defend the matter if they don't of pushed all the response to every single matter that's issued in eighty four dollars he shows up for deposition testifies for nine hours he supplements all of his discovery responses he moves all the decorations he is the one that consistently appears on behalf of himself and on behalf of the company you i want to ask you to focus on two from my perspective important elements in this case element number one that the specific arguments are a said by the stand by my the statements that we have made in the notice and i do not have any further anything to add to those arguments thank you for appearing today you justice good morning my name two veteran judges who are responsible for the well informed rulings you've been ass reviewed for abuse of discretion to the extent you've been asked to make rulings on issues presented for the st time on appeal those complaints must be rejected as improperly asking  court to play the role of the trial court complaint such a service a process i assume numerous of the sanctions orders issued in this case as well as to damages could have and should have been brought before the district court particularly when parties are represented by counsel what defendants to comply with their basic discovery obligations and her straightforward orders it was no surprise that at the eight hearing regarding discovery she remarked in her nearly eighteen years on the bench she had never before enter terminating sing sions nor had she ever encountered the level of obstructionism in failure to respond to the most basic discovery requests allowed pursuant to our rules i think you as far as i can tell from reading  the record the sanctions defendants committed many of the same defaults among many other things lesser sanctions were considered and ordered as to each of the sanctions defendants before terminating sanctions were ordered for example since discovery was propounded in december th teen there were no responses until march of two thousand and seventeen and only after intervention by the magistrate judge during that time there were also no documents produced by those parties or by those responsible for those  s not together i mean each one of the stations of on its own at least one of the accounts at issue the magistrate judge also ordered all this engines defendants to produce documents at a court hearing to show up and hand in april with documents however none of them did and then i get on august th two thousand and seventeen despite all of the individual sanctions defendants being required to appear before the magistrate judge there were no appearances by any of them that these deficiencies were wholesale and chronic further supports the pr of the decisions made in the district court to enter case ending sanctions and district judge was also well aware of the sanctions to find his bad faith that it can conduct having specifically found that the patients defendants dilatory tactics in discovery only further strengthened the conclusion of absence strong showing of success on the merits in total the district court found that absent was likely to succeed on its claims on four separate occasions the district judge also had particular life experience with certain of the palance called as well as westbrook in contempt of court for their willful violations of his orders the bench warrants were issued as to both individuals appellant unsupported assertions demonstrate one key reason for the doct waiver there is no record supporting the arguments now made before the court and it is appellant on failure to make those arguments and to reduce relevant evidence in support that is alone responsible for those missions what is also not in the record with respect to the appellate review pursuant to the federal rule seventy two dollars the only objections that were filed were to the recommendation however the arguments presented here on appeal were not included in those objections it's also undisputed that there were no motion misleading and you play an error presupposes there having been at least an opportunity to commit an error which is impossible if the matter or issue was not raised are you or decided by the lower court additionally it seeks to redefine the standard of review which we all agree is abuse of discretion and last the lead case cited by most of the a pounds in one thousand and ten dollars case that was actually describing are discussing a literal court rule that happened to have the words plane air in it it was the literal plain air rule however that role was repealed by nine hundred and twenty five of the th circuit has not endorsed that role as represented the case provided is actually from the citation provided is actually from the dissenting opinion of the majority in the how the statutory damage was calculated and what the relevance of the expert declaration and as to actual damages and have you twelve million dollars comes from a calculation for six trademarks and the max statutory damage permitted at two million dollars per trade mark the evidence that and again on a limited record that a bit upset was able to  damages relevant if your you were seeking damages based on the six trademarks and there are different uses and types of goods and services where the actual damages amount was to better inform the court who was exercising his broad discretion in determining the amount to ward as to damages willfulness was pled also extensively in the a complaint which was admitted as a result of the default the some of the non responsive and its failure to appear at all indicated that you know this case was a very straightforward counterfeiting case where the defendants were making their own counterfeits so even with the limited record we had we were able to show a fair amount of know i didn't want to address one of the remarks made in the appellants opening statements with respect to the reporting recommendation the finding that the appellant's were specifically warned that failure to comply with the magistrate judge's orders could result in terminating sanctions was repeated multiple times including without limitation to any order and that is that the excerpt of record seventy six lines twelve to eighteen the finding was also fully supported by the record through counsel each of the stations defendants specifically acknowledged in prison a joint report that should they fail to make comprehensive responses plaintiff's would seek sanctions including striking a very answers the court also warned them in as part as to the service of process complaints and there is there is a place a process in place for review but not st review before the supreme court there are valid proofs of service filed and those proofs of service are entitled to your presumption ability as a matter of  have not rebutted that presumption as their statements and their theories are not part of the record with respect to the terry onic appellant you know their main argument supplied by counsel again not based on anything in the record is the theory that as a married couple he would be unlikely that they would share the same address as another person in this instance appellant cush called that is not evidence in any case it's unconvincing because that is exactly what they're doing now the current docket confirmation that he was well aware of the action even of the contempt order against him but he still refused to respond or appear in the case as to appellant k b s on its face the proof of service filed with the court shows compliance within about a rule civil procedure forty one the only complaint raised was it was that a declaration of attempts was not filed but with the district court it was filed with the secretary of state and referenced in the proof of service that you are to fifteen at least one published case has concluded that that is the requirement the rule if there was a mistake as to where the declaration of attempts was to be filed it was harmless and easily corrected federal rule of civil procedure for makes clear that if there was a failure to prove service that does not affect  of the service in all of the not in all of the case of the non responding to find inside there was a motion made in a district court that was on review that did not happen here and therefore all the cases on their reasoning is an implicit hold in this case the case found by absent confirm that this court should reject attempts to raise service or process issues for the st time out of he'll as to the remark made as to the sanctions that were issued after the recommendation i think frankly that just shows that the correct decision was made because even when faced with the most extreme sanction possible you know we had no effect on the non compliant defendants behavior i would be happy to answer any other questions the panel might have but in conclusion if there are none you know as the parties who complain about service of process they are in the wrong court as the sanctions defendant there was no abus discretion as it took something really extreme to force the hand of the magistrate judge to issue terminating sanctions for the st time in her nearly eighteen years on the bench and she only did it after she was finally finished with the fiction but the misbehaving part and every one of the sanctions defendants nor was there any error made us the recovery of damages again that were two million dollars less than the infringing sales reps and was able to identify in spite of not getting any help from the defendants either through their willful obstructionism or their personal purposeful silence and failing to respond at all this case was more than just about technical rule violations the purposeful failure to appear and extensive discovery defaults were targeted to prevent upson from learning basic information information about the infringement at the heart of the case the resulting damage and prejudiced prejudice to absent is undeniable the record supports the definite and firm conviction that the magistrate judge and the district judge made the right calls we ask this court affirm the judgment as and defer to the judges who made the appropriate decisions in their broad discretion and we ask that you bring this matter to its long and proper and i think  same brush was used to paint all of the defendants when they all not all behave in the same fashion contrary to what was just stated the order that was given in the report recommendation was not individual ised as to any of the defendants but it relied on an order that was if you go into the actual analysis of one hundred and twelve it says defendants numerous failures to obey court orders plural but the reference that she is citing to is the order that was only against the three defendants in rule eighty in order e c f eighty dollars the same is true for each and every element that is is used by the magistrate in that report recommendation every time she refers to defendants she is specifically quoting from the order that is e c f eighty eight dollars that applies to only the three defendants and in that order those three defendants were specifically defined as coke defendants including for example that we are warning you that if you do not comply defendants meaning the three defendants if you do not comply case ending inter meeting sanctions i appreciate it thank you i don't know if my st appearance before you know exactly what is the easier way to address these documents so yes it is that june order and that june water was against those three individuals and then and the august order which are the report recommendation which is in august it is again referencing the languages parallel all the way through and the word defendants is pulling the same phraseology from the june order but that word defendants in the unit are on we refer to the three and that's my point that's the same brush as to the defendants or the appellant's i represent they did appear they appeared at every hearing they had appear to every single hearing before this order issued and before the replay for the motion for sanctions had ever been filed they went to art tended it is a deposition he paid the fine that he needed to pay there is no specific finding that he was either willfully oh disobeying any word or there was no specific finding that he didn't comply with any discovery demand or discovery request and my time is this case about dignity and the dignity has no price anyone else like to offer a bottle comments all right and i want to thank the pro se advocates for your official presentation of her being here this morning ok just to be submitted for decision