people hears from the entry of the default yes your honor not the judgment yes your honor and i did receive the notice from the clerk regarding whether this court has jurisdiction under twenty eight u s code section twelve ninety one your honor we believe that this court the actual appeal and we will concede from the opponents perspective that it was filed prematurely that it was an interlocutory order that which was appealed i believe it was proper under one fifty eight to be appealed from the bankruptcy court to the district court however the appeal to this court from the district court was premature however your honor i believe that subsequent to the filing of the notice of appeal there was subsequently been a final judgment entered on the record it was entered september eleventh two thousand and fourteen as docket number one zero seven for a full judge full and final judgment for four hundred forty one thousand and three dollars and twenty two cents was the final judgment that was the default judgment which is entered there's extensive case on the ninth circuit where and citing to baker versus limber us versus real property beverly hills energy bars all state and so on where when a party appeals a judgment but does not get rule fifty four certification when there's ultimately other co defendants in other parties still out still in the case that have not had a final ruling as to all parties this court has ruled that if the notice appeals filed and subsequent to the notice of appeal there is a final ruling as to all parties and therefore the final judgment that this court does have a procedure if you didn't you know there was no notice of appeal filed after the entry of  the default judgment there was not your honor and i however as stated in baker versus limber that was an analogous situation there was a notice of appeal filed and it was filed prematurely but this court under the policy reasons under twenty eight u s code to see u s code section two hundred ninety one it's this court does not want to hear piecemeal appeals you want to have all the appeals combining to solving all issues heard before you in one final appeal on a final order that is the case in the situation there is a final judgment there are no outstanding issues that all the issues before this court have been finalized in a final judgment and they're here before you i would say looking at the policy as well as when you read is one where we believe the bankruptcy court abused their discretion and violated mike the appellant's right to due process their record is clear from the undisputed fact that there was never a discussion with this regarding terminating sanctions and in every ninth circuit case and supreme court cases in all cases i've researched and looked on the subject when terminating sanctions were issued there was either of course they balance the five factor tax the five factors in the three subsectors turn the balancing test this court applied but there's also there was always either prejudice to the point where the prejudice denied the non offending party of their right to due process such as destruction of evidence  refusal to attend a deposition after multiple warnings to the point where they were obstructing the other party's right to due process they were depriving them of evidence they were depriving them of their ability to gather discovery that was not the case here no apply brief and if you see if you look at the full quotation from what the bankruptcy court judge stated to him she said mr thompson bad things can happen can happen to people who don't show up to hearings such as you a court date to get set without your input i believe that that's clearly when read in full context that cannot be that interpreted as a clear warning especially to a pro se litigant that you will get terminated sentients if you do not show up  situation the court overturned order for terminating changes and we cited that case on page thirty one of our opening brief that in that situation the ninth circuit overturned a ruling issu sanctions because the district court judge did not specifically discuss lesser same sions and there was no finding of per true prejudice and when i speak of prejudice i believe it was clearly erroneous the this th the analysis that the bankruptcy court judge did is prejudice was not what this court intended prejudice to mean prejudice meant that to not issue turn and sanctions you're rewarding the bad actor and depriving the opposing party of the right to due process these every case in which the courts have ruled there was prejudice it was a situation where they destroyed evidence there was multiple inability to allow the other party to conduct discovery you made reference to that now twice but let me ask you this did after they've hearing and i guess it was in december when he didn't show up in the court went ahead and set the trial no it be proud schedule yes so was that did he get a copy of that know what at the hearing on the motion for terminating sanctions when the new i don't know if you were there that day i was the attorney you stayed on the rocker that he knew when he came to you that he knew he had a trial in march and the trial date was set for march twenty fifth and so how did we know how did he know that and you made that representation to the court so i soon that it was true that save up every penny and eventually came in and then i checked the docket and i wasn't tracking the case i was not pertain to be on the case i didn't know what was going on the case but i twenty rich initially came in the office in a precursory initial consultation a free consultation i just checked the docket said there's a trial date and it wasn't a thorough i personally learned of this terminating sanction motion approximately ten days before the opposition was due when he came to my office and signed the retainer and actually retained me and then i did a thorough review of the docket actually paid the pacer fees to download the documents and look at them because they're ten cents a page i just looked at the docket said you have a trial date you can hire me and we can do it in march he came in to retain me to do the trial paid the retainer unfolds fla retainer to go to trial i was ready to go to trial and all of a sudden i realized i do we know if after this this order after pretrial status conference if the other side mailed it to  nothing mentioned in their motion becoming sanctions as well as at the hearing regarding sending that notice of that scheduling hearing so under that order what did he fail to do in summary what the repurposed the reason for the trimming sanctions was there was a deposition scheduled for december twelfth two thousand and twelve two days prior he called informally and said i need to retain counsel i'm not prepared to do a depo without an attorney and he improperly canceled it scheduled call them nine days later did not show up to the december twentieth hearing he missed it do it if you look at the record during that the prior hearing she was discussing dates in january she was discussing discovery cut off dates he got confused as states he was pro se without an attorney and then the third final thing that was the grounds for turning sanctions was that the order sketched setting the trial and setting the scheduling deadlines for trouble recent witness list and all pretrial documents that which he never was served with was opposing counsel he can comply with i showed up we got to remain sanctions i thought in opposition but ultimately the judge was convinced that the prior acts that we wouldn't get to trial and then that's that's the summary if you ever impose the morning your honors my question on behalf of my happily c m w i think it's clear on the merits of this case that the bankruptcy court did not abuse its discretion there were no clearly decisions and on the merits if you seek to keep your voice up isn't on on the marriage yet thank you on the merits of the case should be affirmed but let me just bring it speak briefly to the court question about the timeliness the feel as counsel reflected a final judgment was entered in september two thousand and fourteen when the default was entered following the terminating sanctions motion the last sentence of the court's order was there will be further proceedings in concert consideration of a potential default prove up you can appeal just  the right the there were further proceedings appellants counsel attended there was a status conference there was an opportunity to move for a stay there was an opportunity to object to evidence of palettes coun jurisdiction we found in re jack really construction kennedy vs applause inc which says that a potentially premature notice of appeal can be effective if the only thing left to do is a ministerial act of answering judgment and a litigant just because it's a ministerial act when the court had to take evidence no it wasn't your honor there were substantial issues still to be determined number one was my client's claim against mr thomson valid if it was what is the amount of damages and that's not the end of it in bankruptcy the biggest issue is did he have an opportunity to meaningfully participate in that proof that hearing given terminate actions w he was expressly allowed the right to file objections to the evidence because the bankruptcy court made clear that this prove up here is going to be based on admissible evidence you have to submit declarations you have to submit exhibits and there was a time schedule for evidence three objections to be filed none were and we went to judgment the point being that there was substantial substantive work for the court to do and did do in connection with the ultimate entry of judgment within the minister it was not ministerial in fact the judgment entered by the court the findings of fact in conclusions of law which are extensive with regard to the ultimate judgment makes reference to the possibility of further appellate activity with regard to the findings and conclusions with regard to the judgment itself and so everybody i anticipated that there might be a out to mr thompson what he needed to explain to the court then with the sanction yes the sanctions motion relayed that he had been dilatory in discovery that the court had extended discovery cut off several times for the benefit of my client that his prior tourney withdrew because this lack of cooperation that he was there at the november fifteenth hearing when he was told to appear on december twentieth that in addition to being told while he was in court he got two orders from the court that stated that within a few days after the november fifteenth hearing plus he got the reminder  letter from me in connection with the deposition in the subsequent hearing and then he failed to attend that he failed to comply with scheduling order the court's notice with regard to the sanctions motions that you have to explain your prior failures to appear and to participate and respond and his opposition did not when i raised that at the hearing counsel for m i have mr johnson here he can testify he didn't know about the december twenty fifth year in the courts that don't do that i remember telling him and the record is clear that the order granting his former counsels with raul the last did so orally and he told and so i think knew about this that december twentieth hearing i think the bankruptcy judge factual determination that mr thompson knew about the hearings she cheated first of all she knew that he had not cooperate with discovery requiring three continuance of the discovery cut off that she ever ordered him you must appear you're ordered to appear at a deposition at nine o'clock and you do you know the work just be there in this day this time this place she did not order to him for him to appear but she did tell him at the november fifteenth carrying that you have to appear for a deposition when were concluded here go out in the hallway with mr wexler and set a time for the deposition i feel different than order and there was no order but he's got an obligation as a litigant pro se or otherwise to participate in discovery and he didn't do that and the court knew that the court usually when that happens though the sanction is a monetary sanction you know you're wasting everybody's time you're going to pay that's right you're on a thousand dollars but in this case that's not all that happened he refused to appear on december twenty the court the bankruptcy court determined as a factual matter that that was  bad faith because he knew about it he was told face to face he got two court orders he got the reminder letter for me and then he didn't show up and then following that he gets the trial brief my witness statements my expert's report know it's another usually they think sion was at least as i recall when i ever opposed sanctions i didn't do it very often but it was a monetary sanction for the to cover your costs for useless appearance  court this is the that the bankruptcy court determined based on the facts in the record and let me remind the court that the the order setting the terminating sanction motion for hearing said please explain where he didn't explain why he didn't show up he didn't explain why he didn't comply with the scheduling order and with regard to his notice of the scheduling order there is no evidence at all in the record that he did not receive it he never sat in his opposition he didn't receive it he never had a declaration for we know that it wasn't sent to him mr soon and sent it to him his former pal how do we know that is their declaration and there was no declaration one way or the other but it was by december twentieth mr soon and had been out of the case for a month the order was issued in late november yes the hearing was november fifteenth i think the order was november nineteenth right and that the order the the order after a pretrial conference status was in in december that's correct december to hand at and to the opposition mr thompson's opposition does not say one word about whether or not he received it we learn right now that counsel had checked the docket well what what what the what  opening brief says the court did not send a notice of scheduling an order and warning regarding terminating sanctions to the appellant directly that just means the court didn't send it to him it doesn't mean he didn't get it and nowhere in the record is there any statement of fact suggesting that he did not receive it there was a pattern of conduct from day one of usually don't you know i understand the phone is really the ultimate sanction it is the ultimate sanction and it was in terms of the build up to that you lead up to that it was entirely appropriate in this case and let me let me step back a little farther this chapter seven petition was filed for one purpose only for the judgment to avoid the judgment that my client was seeking in state court there were no other unsecured creditors so then we file the adversary proceeding we have the early conference of counsel no documents we seek documents now former counsel is not quite my age and stage but he been practicing for thirty years we you know i've never had another case with him but professional forthright we tried to do things the simple way it didn't work we tried to do things to service a process that didn't work the court knew that the court couldn't manage the calendar things kept getting continued this is clearly a sanction authorized by the federal rules she satisfied the bankruptcy court judge satisfied the five part test there was no abuse of discretion her factual determination is not clearly erroneous and i believe assuming the court gets to the merits the matter should be affirmed ok please the court i just merely want to address some points and if you read by the reply brief if you look at page fifteen and sixteen seventeen i take block quotes from that december to that november fifteenth hearing that i believe misrepresented that's not what occurred if you read through it there was debate or she court judge discussed multiple dates with the to discuss why he didn't show up to the hearing when he said effort did he make if any between the time that he last appeared before the court in november and what had mohnish to pay attention to date up to the time he found out that the court was thinking about terminating sanctions he saved every penny to hire me to defend him and he came in and i filed an opposition to the motion to terminat sanctions and i came in obviously too late for the baker c court judge i merely want to show him the new when he said he didn't know the december hearing what he meant was i misunderstood and if you read between the transcript of the letter fifteen they were throwing dates january and they kept talking about if you have an attorney i won't make you come back i'm going to give you more time well counsel if there is an attorney in this case i'm going to make not make him come back and so maybe we should just put this out to january  hearing dates thrown off and he when i say he didn't know it wasn't that he didn't know possibly by the definition that wasn't told in open court that he misunderstood and he wanted to get on the stand to explain that he wasn't allowed to he was told if he gets on the stand purge and so on not when i'm on the set i don't want to hear it to something to that effect furthermore the the deposition there was multiple conversations about talking about dates pushing it out it wasn't there was never a set you need to attend this hearing on this date and they kept bringing up if you get an attorney i will move the dates move this out and lastly we talked about the his behavior there was never any motion to compel  never discovery sation motion there's actually and i cite to former counsel before he was through with appearing prior to withdrawing at the third pretrial status company mr sutton stated i have all the documents requested there in my possession and i'm turning them over that discovery other than the he did attend one deposition he attended for pretrial status conferences he handed all this discovery day comments over to the opposing side the only thing that needed to be done was the  his deposition the second deposition he was then his counsel withdrew and after then he went to the november fifteenth hearing to hire new counsel in february or march and then we came and said we're ready for trial and i think if you really