united states can manage to find a small on appropriated funds to participate but if not we will understand we hope that by the time the research all the courts will still be an o will say ok thank you very much good morning your honor so appreciate your time this morning night here here here on behalf of metal technologies i realize the court has the briefing in front of the not however i would like to begin with an overview operated around the clock and he ship each shift then overlapped the next with a thirty minute lunch break for an eight hour shift on the shift started with a short meeting with the supervisor the employees then went out on the plant floor and replaced those employees who were running the machine they were going to take over those employees spent some time time enough and left in time for the end of their shift  being there's no reason for anybody to work prior to their shift there's no reason for anybody to work after their shift this thirty minute overlap ensured that was not necessar however in the event employed did work beyond their shift time didn't wake it fill out and over time authorization form and be paid for that time so in many  the reason this occurred many technologies is in our small town southern indiana it draws its employees from a large area of those employees right to work early they show up in their pocket and  the district court found the evidence conclusively showed that these employees were not actually working when they were on the clock prior to their shift and again that was really the focus of the case they were simply have pursued this case from the get go under the theory that employees should be paid based solely on their clock time without regard to whether they were performing  done and paid for unexplained reason i'm getting a little puzzled we have indeed read the briefs yes i understand your not you don't even seem to be approaching the subject you raised in your brief well yet and i'm i'm sure i want to do so i  why did the district court not err in awarding costs that the court has great discretion in awarding cost i think this is a classic akes case and i mixed results i so because this was a state claim and so they're not in federal court yet but i think the issue of cost and i think the district court analyzed the issue of cost under state law in terms of the state  claim and also balance that against rule fifty four i don't think you necessarily need to get to preemption to arrive at the result we saw at the district  scenario and the mixed verdict scenario brings with it discretion discretion to not a lord costs that are otherwise mandated under the statute on which the plaintiff you know unquestionably prevailed on that uniform claim right so we i think we have to figure out what rules apply and i think it is to judge roberts point when federal court record in under the federal rules of civil procedure and i think that's why with the judge was the state statute provides a basis for providing cost and it's a starting point i think in federal court the basis of providing cause is rule fifty four and eighteen u s c nine hundred twenty and nothing else what cost state court is neither here nor there but state more can affect the exercise discretion under federal law don't you think that would be true yes i agree that salt suppose we rephrase the question as why would it be a service and they certainly think you can purchase a s time that the roundings claims for lack of a better term were valued at about a million to one point four million dollars and that's where the focus was that's where all of the energy in this cas with regard to the remaining rounding claims again to not truly around in claim that for lack of better term when to call it around things like and i played just were awarded nominal damages will shift gears for a moment and talk about the certification issue so the the class was conditionally certified under the sorry i jumped ahead so there's conditional certification the court later decertified the ground in place because there's simply no evidence that the employees were working prior to the shift  between certification and decertification we took the lead i'm always puzzled when cases come to us in this part where the plaintiffs should litigated in law and then demanded a class be certified presumably to take everybody else down in flames with them and they punt instead of saying yeah yeah everybody should lose all that long says oh please don't allow a class  district court would enter a judgment setting time on the clock is not the same as time worked the class loses it's already decided that with respect to the two representatives planets i just add that the but the issues presented to th regarding move there could be followed by a determination that they can serve as class representatives based upon the result at the district court level in other words they're not appropriate class representatives and so i don't know basis changed between january twenty five twenty sixteen and may twenty sixth twenty seventeen there were no new arguments rest there was no new evidence to explain to me why you want to take the entire class down  never would have been appropriate for personal acetic errors the rounding like sixty two dollars or zero f deductions or something like that where the two dollars and thirty seven cents  representative player got right that was never the subject of classification it couldn't have been so unless i'm missing something very fundamental certification of a class would do nothing but cause an immediate judgment against a whole class well the man there will be reassignment in the case of these arguments that didn't work these very same arguments these very same pieces of evidence that didn't work what's being ignored is were working when they were on the clock and the company to find that here but i think judge mr brooks point is that you have judicial findings that are rejecting the line of argument you're talking about only and you're you're you're really arguing the issue was a trial involving the class representatives and this legal theory was rejected on the merits it was rejected on the facts and it was rejected on the law on the basis of twenty nine  prospects of a class i think that if we had done as the district court suggested and presented a series of witnesses to say i was working based upon fuzzy recollections rather than based upon a system that was created are used someone comes in voluntarily they don't have to be paid so long as they're not actually working they were working and the employees were trained to use the time clock and they were promised that the time clock punches were going to be treated will lead to immediate judgment based on the findings and conclusions are all already made and you need to understand that i do understand your point but i believe that that was legal error and a factual misunderstood but i will move on to the other issues if you wish the attorney three appeal is narrow it is based on what i would consider worst case scenario for the argument  for only two hundred ninety point two four hours of work is subjective leak unreasonable and the court failed to consider the evidence that it had before it regarding the amount of time that it was that was taken and that was necessary to take to get back chase through to judgment some of the errors are mathematical in nature the district court appropriately asked me to submit supplemental the bill down into stages of the case how much time was spent investigating and pleading how much time was spent in discovery to class certification after the case was certified how much time was spent in discovery regarding liability issues and class formation up through cross load summary judgment and the decertification motion there was a small break in time of about four miles between january and may have twenty seventeen there was the rest small amount of these before that may twenty sixth two thousand and seventeen order and that i made sure that the court knew that after she decided partially certify the case and the class rounding claims there were still work to do regarding the deduction claims and the individual claims that led to trial there were in total between the trial and the issues that was spent getting the case to the point of her ruling on fees twenty six percent of the attorney and the paralegal hours were spent after the rounding issues existed no longer twenty seventeen there were about four hundred eighty thousand dollars in charges at the time as the court thought that the work that had been done had been done just as much on the time rounding for example taking a deposition attending district court judge's reasoning and in substance what he saying is as i understand it is the kind of time rounding claim just for short hand is what was driving this litigation did did not present anything that really tried to untangle all the time in any in any way that she found you know helpful to her and so she was left to approximate and she approximate approximated with the eighty five fifteen divide that you know a challenge week for you to prevail we have to we have to call that are deemed that an abuse of discretion what's the one or two reasons briefly why she had used her discretion in approximating first you made a proportionality determination which under the indiana wage payment statute is incorrect the case that you had was the r l turner corporation versus russell that award was percent out rate studies show that the normal opt out rate rule twenty three classes between point zero wanted point zero two percent of the punitive class this case  an opt out rate in the high court and not surprisingly almost every single opt out member was a current employee at the time the uniform deduction would have had a value of three to four hundred thousand dollars  work done to make the recovery for the people that stayed in the case and still wanted their money had to be done as much and with the same fors the work done on the time around the claim the difference and i pointed this out in the brief between the time rounding claims and the uniform claims very different claims though the uniformly uniform claims turned on the statutory interpretation question the judge was asking your colleague about time rounding claims that's a completely different matter there you are in a big factual swamp and you're tangling it out in figuring out what's going on as a matter of fact with respect to the way people are getting paid how did how was the time clock in impacting this or not i expert witness to merge the time and the payroll records because it was too much we spent a lot of money on that but we did not do that work ourselves our bill and our requests for fees doesn't include that expert witnesses bill were going to my my that seems like there's an argument that you should lose the feel word should be for the case to work on the case as a whole in general but in terms of the one big thing that the indiana law brings up is that the should also be looked at in how much some areas but wants something on there too factual theory disputing three different statutes and we were paid seventeen and a half cents on the dollar in this case and in terms of comparison to other field words no one  most likely to win rather than to cover all of the peri's depending on how discovery turns out it would be the same as criticizing a defendant for having a laundry list of affirmative defenses when really they only had one might so i thought i would if they were overlapping alternate theories i don't see a problem with that and i don't see why there should be a penalty in the attorney if you were to address the cost issue of the first thing i want to point out about the cost your recovery of your attorney sees and costs are part of your recovery as a successful plaintiff so that as part of your substantive right to recover not a procedural right it's very hard to think of cautious a substantive in idleness federal court award expertise as part of cos i'm not sure that they wouldn't actually the problem in indiana is cost is defined more narrowly it may be but i'm trying to figure out the general question whether in indiana defined by either federal or state laws because that might support your argument that costs are substantive if states want to make here that's what led me to the expert fee question i don't think that can be doctors easily but i think the cost of the same as attorney fees and they're compensatory in nature under the statute and the interpretation that indiana courts have given their statute mean i guess i feel like in response to mr parker resorting to arguments about how costs are treated by the indiana law as i understand your answer maybe i'm misunderstanding your answer in an effort to i think the indiana law should control the are mixed results there was a procedural victory for the defendant but the prevailing party by all respects on each claim was the plaintiff in every in terms of the title to a cost the costs are limited and don't pollute expert