not be prejudiced by dismissal without prejudice now it's not only cat spends fifty six dollars pages and twelve thousand eight hundred and sixty dollars words in their briefs saying well that's clear what that means i disagree i have no idea what the district court found and if i have no idea i propose you have no idea and therefore there is simply no way for you to find the court properly exercised its discretion because it's not absolute discretion is judicial discretion how could the court find there was quote the fence will not be prejudiced by dismissal without prejudice when literally it's rare you can say this every court in the country that has decided the question has held that a dismissal without prejudice in the in the face of a prevailing party vision causes prejudice to the party who would otherwise be the prevailing party literally every case in the country as said that yet judge sheppard i think your decision in the thatcher case the follow up in the donner case in which you were also on the panel but didn't offer the opinion clearly indicates that this can't stand in fatter and don are both this court found it was an abuse of discretion for a trial court to grant a motion to dismiss without prejudice without analyzing the entire factual scenario which included in both of those cases the distinct possibility that it was being sought for an improper purpose i e to forum shop to get out a federal court and in both cases this court said the district court can't wash its hands of that question it must look at that question st before it decides whether to dismiss without prejudice and that's what i think should have happened here judge who should have looked at the pending fully sold or transported in commerce there were no goods repeatedly in the st of many complaint the per employee is referred to as the quote nonexistent are in play therefore there can't be a good because there were never was a good so fair though it could have been used in commerce counsel when the district court decides whether to dismiss with or without prejudice can it consider the equities of the case in this situation such as whether one party may be misused property of another person can it consider the echo if you consider anything i don't believe that the equities of whether one used the proper misuse the proper use of another is a proper factor whether there's a viable cause of action i mean this is not just records or not they came they can't just say well that's not fair but the under the current three part analysis the court is going to consider whether the parties prejudiced yes when they're making that determination can they look at the equities of the case before them when i only pause because i think you're headed where snuggly cat is going which is ok maybe it's not a viable claim of the lanham act but it just ain't right if that's what you mean by equity absolutely no the court could not consider that that would be an m proper factor to consider whether it just ain't right because that's not what the court that's not what the district or doesn't the ultimate decision it just as much as a viable claim about whether one party they're looking at prejudice they're looking at prejudice but this court has repeatedly said it's prejudiced to the party opposing the motion to dismiss absolutely this this court has repeatedly held its prejudice to this case to my client i mean he's the one who brought this suit and most importantly let's not forget his client he didn't do it he wasn't counsel of the time his client brought this suit after it knew there was no per in play because on the prior  his client brah that was discovery and the discovery expressly said by the party who supposedly made and sold it there were no there was no per plate sworn in iraq or tory answers they knew that before they ever sued by  so what did they do they waited until i found out because i serve a subpoena on the other parties in the prior case and i found out and then they fast up in there a minute complain and said yeah it really never existed and then i moved to dismiss one hundred and twenty six dollars and then and only then did they say oh my mistake i want to withdraw well that's not what's allowed though it's clearly prejudiced a client for them to do that and the district are clearly erred in not analyzing that issue and instead issuing a one page order before the plane but before cycle five even i had an opportunity to follow reply to my opposition and dismissed the case i'll reserve the rest of my time with prejudice arguing that dismissal without prejudice would deprive them of the ability to recover attorney fees as the prevailing part of the district court then in response to analyzing an argument says the court finds defendants will not be prejudiced by dismissal without prejudice what they're arguing for is a per se rule that anytime under any circumstance regardless of the equities of the parties regardless of the equities of the situation that you have a lawsuit under a fee shifting statute or presumably a fee shifting contract as well didn't there could never be a dismissal without prejudice that is not the law of the united states and in fact it is not the law of this circuit mr rhodes just told your honour's that every court that has ever that this court decided where this court also affirmed a dismissal without prejudice in the face of a claim for attorney fees and it remarked that the district court didn't have to do that because there clearly as here it quote wasn't convinced that dismissal without prejudice at the defendants or at the plaintiffs request would cause legal prejudice i entered fairly depriving them of the ability to seek attorney fees and it had discretion to find that their and judge who the district court here had discretion to find the same thing here in the blase case this court held that there doesn't have to be some full blown grand analysis there just has to be a showing that the district court considered the defendant's claim and rejected it as it had the right to do what he's arguing is that the district court didn't have discretion but the district court didn't have the right to do that and we know that that's not true because of the plain language of rule forty one  which i also found judge shepard had either joined or authored a but those cases have nothing to do with this in those cases it was where a defendant made a statement or an argument that they'd be prejudiced because this was forum shopping actually about prejudice it was about the plaintiffs reason but the district court made no showing that it even considered that argument at all and what this court did is not remand for a dismissal with prejudice it remanded for further consideration of that question here that's not the appropriate remedy because the district court clearly did consider their claim of prejudice this court in fact has never reversed a finding of without prejudice a discretionary finding under forty one a two without prejudice because of the defendant's claim of prejudice and that makes sense because this is about a plaintiff's request there are only four cases where this court has ever reversed a finding of  and then the williams case nine hundred and eighty dollars where the point of also failed to present an explanation and in fact that happened after trial after when when during trial when the court had said that it was going grant a directed verdict the factors that this court identified in the blaze case and two thousand and seventeen for what's necessary in to in considering a request dismissed without prejudice or it said most importantly the time and effort invest responding to discovery prior to dismissal doesn't constitute that doesn't constitute prejudice but that's all they had because at the point that this case was dismissed there hadn't even been any depositions there had just been some drafting in responding to some ordinary discovery and some explanation was simple despite the merits of its claims and they are meritorious as we've explained in our the final section of our opening brief and i know they give no reply response to that at all in their reply brief this was a use in commerce and certainly a transportation of my clients product in commerce they they sent it to china to be counterfeited and they also sent it here to missouri in order to be photographed and used in this fraudulent production and website  regardless to my client said that despite the merits of its claims and its good faith in filing them it didn't have sufficient resources it's a small company and it's it couldn't afford to sustain this anymore and the district court believe that in that same order it says that this was based on my client's inabilities to sustain the cost of continuing suit and was made in good faith as well established also by this court but that's a proper reason in the oak grove farm case in two thousand and one the plaintiffs stated that quote lacked readily available started out my opening the district court stated what the defendant's argument was that they wanted to be the prevailing party so that they could get attorney fees then considered and rejected this argument the court finds that defendants will not be prejudiced by dismissal without prejudice in the blaze case this court held that that's all that the district court has to do it doesn't have to make some kind of full blown analysis instead as long as the district court quote stated that the plaintiffs reason was proper would not waste judicial time and effort and would not prejudice the defendants that's sufficient because to the extent that there are much longer full blown arguments about that the court held in blazon two thousand and seventeen that the district court implicitly rejected the defendant's further counter arguments and as i said before in the thirty two thousand dollar eight hundred and thirty two thousand eight hundred and twenty dollars u s currency case which is a kaffir case right that's the the civil asset forfeiture reform act that's where the government and this court affirmed even under those circumstances which hasn't are nothing like this is an ordinary civil lawsuit dismissed without prejudice early early early on in the litigation if if that's true of the government unlawful taking somebody as property in a calf or a case it's certainly true under an ordinary lanham act case the district court's decision to allow my client to dismiss without prejudice properly exercised its broad discretion this court doesn't disturb the district court's discretionary decision as long as it was within the range of choices available to the district court accounted for the to all the relevant factors and didn't rely on any irrelevant factors and that's what this court consistently has held time and time again that's the standard for abuse of discretion in the  circuit this or court's decision to allow my client to dismiss without prejudice was within the range of choices that will forty one dollars and two dollars gave it it accounted for all the relevant factors that i've just gone through with your honor's and it didn't consider any relevant factors they don't have a single case where there was a reversal of a discretionary decision simply for this fee shifting provision they cite this ito case from the th circuit in a few years ago the edo case has nothing to do with this there that was another calf or a case where the district court made an error of law the district court i said i'm going to allow the government to dismiss without prejudice but i'm also going to allow the four hundred and fifty two dollars i had to get attorney fees the th circuit reverse saying well the district court clearly didn't understand here that if you dismissed without prejudice you can't allow them to have attorney fees so the issue there was the district court had made it a clear error of law this isn't an error of law this is an exercise of discretion what they're arguing for is that district courts no longer have that discretion that's not the law of the united states it's not the law of the circuit and this court shouldn't abate that are i see i'm just about out of time if there are no further questions we'd ask the court to affirm district judge schreier zx opinion in blaze would really suggest perhaps because it's written by a district judge that you don't have to do much you just have to say sheppard that you applied in factor or in blaise judge grindr wrote quote i reject the notion that we automatically should deem an argument to have been considered by a district court simply because it was raised in briefing otherwise it is unclear to me how we would ever find that a court had abused its discretion by failing to consider quote a relevant factor that should have been given significant weight well but that's are involved prejudice there is not contrary to what mr service said he considered and rejected that i don't know if you consider it rejected that he had he acknowledged i made that argument but he never considered it he never  but i don't know if you considered it and i you know any need to consider because contrary to stoke i'm not arguing for a per se rule that this could never happen but he should have considered it if he'd said the defendant say this is unfairly prejudicial because they've got a pending motion i've looked at that motion i'm going to deny that motion because the lax merit and therefore miranda good even if even though it's a prevailing party case i wouldn't be here but he didn't do that instead snuck in the very last line defendant's motion to dismiss plaintiff's dudley katz st a minute complaint is denied is moot you don't even look at it that's the problem here fine and the only other thing i want to make is on this issue because your you asked about equities judge mr steinberg who again it wasn't at the trial court level said that when you sent yet to china and we