issue for this court today is the ownership of four registered trademarks to a rock band from the one nine hundred eighty s that is still stiff i'm still concerned with whether we have jurisdiction in this case maybe you can address that first because if we don't have jurisdiction from a final order then we can't really get to your to your client's contentions so my question on that i think probably i can get to the crux yes is that if the cross if cross said i'm not sure whether i'm pronouncing that right that there maybe there wasn't a motion on that but maybe there was but how i was there a final order if that issue hasn't been resolved thank you roger i'm glad that you asked that question because we i think both or all the parties believe that it was a final ruling the case law that your honour's asked us to review in briefs in the supplemental briefs i believe it says that if  declaratory relief so long so long as it provides the the relief requested as it were in some other form or fashion and that's what has happened here from wh ruling can be taken is that mr cruz ca though we dispute what he was asking for but he did ask for a ruling that a declaratory relief that the trademarks were owned by the part provide essentially the relief that he was requesting and the case i think is clear that is so long as the relief is is is obtained some way that provide the relief he was requesting if he wanted to ask for the relief that that he on the trademarks but it well he was asking that the right well i think it is a little bit different your honor i think mr christie was asking that the partnership be declared to be the ownership owner of the trademarks if that's what i meant really ok and so was but that wasn't done by the court right well as i understand it the court denied summary judgment to your client on the theory that your client didn't didn't have the trade mart valid trademarks but i didn't i didn't understand how the court addressed whether the partnership on the trademarks i would i would dispute your honour's interpretation of the ruling by the i don't believe that the trial court actually stated or addressed really the plaintiff's motion at all and that's one of the issues that we have in regards to the trial court's application of the law to the summary judgment motions is that there were cross summary judgment motions in the law dictates that the trial court must look at each motion individually now i don't think is it is it your analysis that because the court basically said that the b b s doesn't own the trademark and the assignment from rock is called rat rats yes assignment from rat wasn't valid and because the assignment wasn't valid crew c r still a member of the rat partnership district court's ruling that as saying that mr cruciate is it is mr christie was in the partnership and his expulsion was not proper though the problem with that and that's one of our issues is that issue yes the parties had submitted your supplemental briefs and both sides are in agreement that all issues that either party has asked for has been now definitively resolved and yes all the parties are stated in a kind of roundabout way and because of that there was a final judgment to be taken to the appellate level so i would agree with you on that issue as well your honor and judge who did i address your question so i thank was not valid but the problem with that is that the flip side of that coin is that the trial court also stated that the remaining partners in the partnership the trial court could not tell it was a corner quote it was a lingering issue whether or not those partners were still partners of the partnership or not well logic dictates then your honour's that if it could not be told one way or the other whether the partners who voted out mr christie were in or out of the partnership then it has to be that it could be the fact that mr cruz's expulsion was valid if you can't tell whether they were in or out and that's the basis of the determination whether or not the expulsion was valid then it has to be that it's also a question of which then should go to the jury as to whether or not mr cruz is in or out he can't have one without the other if it's two sides to the same coin and logic dictates that you have to look at it as anything that doesn't need to be evidence in the record that the martini voted to expel if that's the missing link right well that's that's not i don't believe the issue that the trial court stated i think the trial court stated your honor that he could he there was only two of them remaining part two or the three remaining partners whose names were on the letter that was sent to mr coo ca expelling him however recall that you do have mr de martini right after participating in is evidence that mr de martini understood and that mr christie was expelled and did consent to it because there is also evidence in the record that he signed off on the assignment to  that the trial court stated was that he the trial court could not tell if pearcey de martini were in or out when they when they made the decision to expel cruciate and i believe that there is evidence in the record of consent by mr de martini i would say yes your honor and i evidence in the record that i would say yes now what his name was not on the letter that was sent to mr cruciate if that's what your honour's asking here his name was not on the letter i will i will give you that however your honor the documents that transferred all the assets from the partnership yes mr de martini signed off on all those documents saying that he was a partner and that he was now assigned those all that others have to be telling me  at the best the b b s owns it at the very least your honor it's an issue that needs to go to the jury as you stated yes your honor it's a disputed fact and i think that's the problem here wait a minute i'm looking at the district court's order page ten it withdrawal from the ban wrapped with no mention of the rat partnership and does not strictly comply with the requirements of the partnership agreement and that right yes your honor and that was addressing whether or not because mr pierce and mr both withdrew from the band now they withdrew from the band not the partnership and that that's the issue that i think the trial court was referring to in the part of the ruling that you were just reading your honor is that in order to withdraw from the partnership they had to do specific things there was very specific tasks that needed to be accomplished in order to withdraw from the partnership and what the letters that both mr pearcey and mr de martini sent to the partnership were then just withdrawing from the band i but that's that's why the district court relied on that the fact that he only withdrew from the band and not the partnership means that he's still a partner which means that he still needed to consent and because he wasn't a consenting party to the expulsion the expulsion was not valid but he wasn't that thank your honor i would disagree with you though that he did that he did can actually consent to the or out of the partnership if that's the lingering question it cannot then get to that secondary question of whether or not mr de martini consented to the expulsion or not however once again your honors i would point to these couple facts the partnership agreement does not require the expulsion to be in writing the random is consent to be in writing number two the documents that transferred all the assets and basically closed the partnership and opened w b s inc was signed by all three gentleman mr blocks or mr pearcey and mr de martini acknowledging their position as partners transferring assets then to the corporation i think then and i would also point out one other factor that is in the record is that at the two thousand and two state court ruling which was mr pearcey bringing the exact same action against on the exact same issues that mr crusade brought in this action against christie had been expelled as well as a separate statement of undisputed facts actually that mr christie had been expelled from the partnership that was even recognized by mr pearson who is who is who is bringing that action back in two thousand t thousand and two so you have been under oath statement by mr de martini in the two thousand and two court action that mr christie was expelled you have been signing notarized documents moving assets to the to the to the his position as partner and then acknowledging obviously the fact that mr christie was expelled he there is no requirement by the partnership agreement that the it had to be in writing he was he was working  declare to a relief and of so tell us how i believe it does your honor in that the ruling on the summary judgment provided the relief that mr creasy was seeking of having that the ownership of the mercs declared to be the rap partnerships property and i think that the ruling does do that omission never changed it it was white correct right that's the important the ruling is that all of these things that happen in order to change court also stated that the basis for determining the validity of the expulsion that not all partners consented or it was but he did not the trial court did not say that truck court said it was lingering question whether or not they were in or out and if that is the case if it the lingering question is whether or not they were in or out partners or not then the lingering question must also be on the other side that point whether or not mr cruz ca was expelled or not if they are the same the two sides of the this lingering question and that lingering question is the fact if there are lingering questions does that mean that we really don't have a final final order for practical purposes i think your honor and you're not a broken record i want to be clear on this so no that is not the case because there was a ruling a final ruling to take to the appellate court now the basis for that ruling that the reasoning that was behind the trial court that's where the lingering questions come into play the the lingering questions are the reason that the that he that the trial court got to their final decision but the final decision was handed down the  f that was requested by mr cruciate was granted in a roundabout kind of way but not specifically and i would also state that the case law is clear that the trial courts don't have to address eight declaratory relief cause of action per who will be splitting time with at this point i'd like to reserve six minutes for a bottle did you decide how you were going to split up time we did and you were going to take how many minutes i don't expect to use the fact finder could conclude the cruciate was ever expelled from the partnership it's undisputed that no partner in the rap partnership could transfer or assign any part of his interest in the rap partnership without the unanimous consent of the other partners threshold showing that has no ship interest in the marks and its trademark claims fail summary judgment is therefore warranted in favor of cruciate and against obvious in making that ruling the court specifically addressed is request for declares for relief that w p s had no rights in the red trademarks that he was a member of the partnership and that those rights remain with the partnership it was addressed the issue that we have what we've asked for in our in our cross appeal is we've asked that that be specifically incorporated into the judgment the judgment that was entered in this case simply says for the reason forgive me for paraphrasing but effectively for the reasons stated in the order in summary judgment judgment is granted against crusade against a b b s and all causes of action so that finding at the summary judgment hearing is incorporated into the final judgment but not specifically so and that's created some issues with respect to third parties who want to see a final judgment that specifically incorporates what those findings are but it's our view that it's that the declaratory relief has been addressed in a final order of the court it just needs to be specifically incorporated into the matters concern both w b s appeal and our cross appeal the first one of those matters is something that just occurred about two weeks ago in addition to suing judge prayers in the same judge and in summary judgment ruling in that case judge progress and reached the same conclusion that the transfer was invalid had no rights that's it i note that an appeal was filed in that case and on january twenty fourth there was an order from this court from the ninth circuit saying that the council of failed to file an opening brief pursuant to ninth circuit rule forty two deaths one the appeal is dismissed  prosecute counsel for appellant directed to notify his client immediately that the dismissal and the district court within twenty one days shall act as the as the mandate of court based on that order and that's case number eighteen dash five five seven zero three the significance of that of course is that even should and for all the reasons set forth in our brief particularly rule ten that we don't have a full record before the court of all conclusion because there's now collateral estoppel in another case in which w p s is claimed trademark rights against and whether one of the members of the rap partnership that's now final i don't know why we're here like a collateral i mean there could be no other result and you know i'm not going to recast or rehash all of the other arguments in our brief except to note that even after we pointed out the  is required to put forth the full record of the full evidential record of everything that was in front of the district court the evidence the objections everything that this court could then rule on the admissible on the propriety of it it failed to do so and there are countless there not countless they can be counted but there are quite a few documentaries one twenty seven one thirty seven month or nine one forty nine one forty one one forty two one forty three one summary affirmation of the district court's ruling on summary judgment can you address counsel's statement during his argument that there are these lingering questions in terms of who was in and out of the rat partnership at the time of the purported transfer because i thought that b s had taken the position in the district court that the martini was in fact still a member of the partnership ws  definitively took a position and the district court found that when de martini left the band in one thousand nine hundred two that that didn't comply with requirements to withdraw from the partnership and therefore he hadn't withdrawn you're correct there is no issue de martini cricket's there is no answer mr sherman has now come forth and said well you know there's all this stuff from the two thousand two litigation in this declaration and none of that was before the court of summ judgment that's all evidence that doesn't really get where they wanted to get anyway but it wasn't even presented to the court until after the summary judgment ruling and motions for reconsideration and motions for new summary judgment the based on the evidence before the court assuming this court is going to look into it in light of the the failure to comply with rule ten the court still got it right had side of the credit standard to the court in our motion for attorneys fees we we cited the ninth circuit's twenty six thousand centers case of course based on the supreme court's octane fitness decision i mean all of that was properly cited to the district court you we don't know whether the right standard was applied and i think that that's really important because the standard has changed in allowing in awarding fees and trademark cases you know every  convergence and the standard is the district courts analyze the request for fees under the lanham act and this is the language from sun or should examine the totality of the circumstances to determine if the case was exceptional and those factors include the frivolousnes motivation the objective and reasonableness both factual legal and the need in a particular circumstance to advance considerations of compensation and deterrence and i take it but the district court had a full briefing on the issue of whether this case is exceptional are not and tonight it albeit without an explanation you're saying that there's no indication in the record that that this court considered the pro create factors that we can't infer that by it's the nile the district court found this not to fall within the exceptional case category and that's correct your honor and i think that's i think that if there's additional cases we've cited how can you evaluate whether the court applied the right standard or otherwise abused question without having any idea of what the court's decision was based on and what i note and i think this particularly important in this case is that in sun earth the court notes that one of the factors to consider is the need in a particular circumstance to advance considerations of compensation  counsel for the plaintiff has a demonstrated history of pushing forward trademark cases with no good faith factual basis and ignoring court laws and given multiple court findings on plaintiffs in a case called key tab vs miss ronnie judge lou aborted over two hundred ninety two thousand dollars in attorney's fees finding that mr sherman and his firm quote knowingly pursued frivolous claims including a claim for dilution for which there is no factual support and when i mentioned before there were two recent matters that bear on this and in may of twenty eighteen after we submitted our opening brief the ninth circuit upheld that award of fees and that's when it's a focused on the facts in the record in this particular case so what you're asking for it so be banned at the district court to state its reasons or take another look at the arguments we absolutely need to say focused on the facts of this case but i don't throw out other findings just to make someone look bad what i do is when one of the factors is the need for compensation and it turns and there's a claim against  who in this case the district court found repeatedly violated local court rules you know multiple baseless taro requests and i'll note the second one of those to your quest and this is on the record was right after we had substituted the substitution of counsel before it had been ruled on council races to court to file a second tier request with nothing more than you had in the first terror quest that was denied where what the court hasn't heard their substitution yet we had multiple motions to strike other motions multiple motions to shorten time multiple motion you to reconsider prior motions making arguments based on evidence never produced in discovery making arguments based on revealed law refusing to produce witnesses for deposition including mr blotz or the main architect of this  producing four pm q s who had no knowledge of anything this is all well documented we had to file motions to compel and if there's any question that this was baseless frivolous and unnecessarily increase the costs of litigation consider that plaintiff lost every single one of those motions and i only mention other cases because it legitimately seems to be a pattern in practice and to the extent that the district court should considered the need for deterrence and you have a law firm who multiple district court judges in the central district have found unnecessarily multiply proceedings and fail to follow the rules that's a factor that should have been considered good morning good morning marc israel for rob hoffman and of one model management l l c may it please the court i would simply like to emphasize the fact that mr hoffman as you know from the briefing was a the manager of the band for short period of time the claims against him were different from the claims that were at issue again between cruciate and of u b s mr hoffman has no stake in who owns the trademark to rat or the intellectual property summary judgment was granted in favor of mr hoffman appropriately so there is no developed no argument developed in the briefing at all that would permit reversal of that decision it is clearly a final decision as to mr hoffman and he has incurred attorney's fees in this case that he shouldn't have had to so our argument is simply this whatever happens with a remand or a final decision should not implicate mr hoffman the case should be over as to him there is no reason to change the ruling of the district court has to mr hoffman and so unless the panel has questions i will submit that  you thank your honour's i would like to address a couple things by my colleague the various other cases which are not before this court that my colleague brought up my name is not specifically named in those cases so i would take  attorneys correct your honor and i would note this obviously there is a good faith we had a good faith position for bringing this case the motions that were involved in or as we have  decisions by the trial court we believe were abuse of discretion were prejudicial error in a number of places my colleague did not address the merits of this case because they have no response to the merits of this case they got fortunate in the rulings that came down from the trial court the bottom line here is that w p s had a good faith belief in the ownership they had the trademark for twenty years unimpeded registered trademarks in thousand and two litigation in state court didn't did not do anything about it did not rise up and make his voice heard but not until and that's the reason why mr creasy is first motion for leave to amend to add counterclaims of the rulings on the second motion for leave to amend we don't believe that it should have been granted nor do we believe that even after it was granted that are we believe that our motion to dismiss should have been granted as the claims that were brought by mr christie by the facts of that ledge did  he did not have standing nor did he alleged claims that could have been acted upon the district court in its rulings and i will say this the motions to compel that my colleague referred to were not granted it was not every motion that was granted we did win a couple and i would say this your honors is that if you look at the record and you look at the rulings and you look at the evidence and those documentaries mentioned by my colleagues that were not in were in consequential and your honor certainly the matter needs to be sent back every mended to judge a person for a statement of decision and to ensure that the correct standard is applied in doing so i would ask this court to do more i know that you've got a number of important cases on your plate and i'm sure we've got a lot of work to do but i would ask that this court actually take a look at the totality of the the the proceedings in this case the evidence the positions taken the lack of factual support for positions taken and actually give some direction to the court to judge progress and as do it might my hope would be that we would get a memorandum this is a case that seems to be one in which fees are appropriate there's a reason that fees are allowed full in trademark cases there's a reason that there's fee shifting there are in many cases you're go have bona fide disputes over likely to confusion between good to good faith users in other cases you've got counterfeiting or you've got a steam by an owner to bully rights away from co owners and those are exceptional cases and those are cases that should be pursued and in this case it was a case that was defended under threat of financial ruin you know we had i think those arguments counsel need to be directed to the district court we don't make factual findings as you know i understand but what the court does do would be to say whether or not even under an abuse of discretion standard you would need to consider that to tally the facts and determine whether or not there would be an abus discretion we don't have a statement from the district court upon which to do that but the court could still take a look at that factual basis  case should be deemed exceptional and when fees are appropriate really predates that decision so there is an opportunity here to shed some light on not only making sure that the court considers the correct standard but how that standard should be applied under the facts of this case and i think this is a great case for the to do that in because there's there's such a rich abundance of facts that could support an award if it is all right thank you very much counsel will cite the argument today the matter submitted for decision by the school where recess until tomorrow