i think she just covered  what provisions and civil rights statutes are open to extreme amounts of discretion and one district one judge may offer as much as three to four times as much in fees as another judge i'm civil rights cases also have non monetary aspects that must be weighed just as happened here and when evaluating rule sixty eight dollars off or all of these things need to be considered it's a really a risk analysis there's a policy matter to take into consideration considering these sixty eight was created having to pay the the plaintiffs fees and i for one i appreciate the concerns that you're articulating but here the district court said that the offer that your acceptance except jay can serve it to the e c f system i don't believe that the district court made a determination based on the method of service and i'm not sure that a rule sixty eight offer can modify the back method of acceptance that by by rules requiring service what the district court said was the proposed order was inconsistent with the terms of the offer but i don't believe that's a proper method of looking at things because the actual notice of acceptance is what is relevant this is why i'm saying that the two areas of the rule are getting can with combining together and creating this result the notice of acceptance included the offer of judgment as an exhibit reference to it and why w with this with various courts interpret ing rule sixty eight dollars differently and requiring plaintiff to include orders or judgments associate with my personal belief is that is improper we believe the clerk should be the one entering judgment but even on the courts who have agreed with us on that as i recall from my own practice is a district judge whenever anybody would submit a judgment i would wait a proposed judgment to wait a few days to see if the other side was going to object then like that happens here nothing like that happened indicated to accept and then we filed our notice of acceptance with the court they said it was improper and it should be allowed to be entered in judgment this puts the plaintiff in a bind because what a plaintiff except as a rule sixty eight we indicate we think our case has some weakness and even if we if we don't get a judgment out of that no defendant is ever going to settle that case they now know that you think your case has some weaknesses and they're going to be in but it's unclear exactly what the practical effect would end up being here did we deny the rule sixty eight dollars if we had prevailed and gotten a lower amount but we have been held to account for not accepting it it really just strains the effects of going to this and so i think it's important to talk about why it is that the enforcement mechanism is considered by at least five circuits and i believe the th circuit has indicated acceptance for for that that these are self executing and that there is no discretion muffed of the court and deciding whether the introduction that should have been done h that if they didn't like the judgment that was her that was produced by the plaintiff well within the discretion i mean that issue if the if the acceptance is clear and unambiguous just it's pretty clear what's to happen  i read your notice of acceptance it seems pretty clear that you accepted plaintiff excepts defendant walmart realty company in wal mart stores inc offer of judgment dated october th eighteen made pursuant to federal rule sixty eight dollars defendants offer of judgment dated october th is attached as exhibit one turns out you didn't label him but that seems to me a pretty clear acceptance and i understand the argument to be that well you also attach this proposed judgment and that just shows that you had it it doesn't track the exact terms in the offer and therefore you altered the terms of the offer and therefore there was not a clear acceptance yes right that's the district court's position but i believe you've been considering the proposed judgment as part of the accept package is an error the rule sixteen makes very clear what what is it that position that's great but then then the district court could look at it and say well you're trying to play a fast and loose and put a judgment and that really doesn't comport with what you acceptance was that you know i mean courts get confused if they think that attorneys sometimes are either on one or by the sides are not you know they're not playing honest with the  core construed as part of the acceptance i think i accept that the court declined to enter judgments based on the form of the judgment that was proposed and i think the court would even buy within its rights to say we have a notice of acceptance but we have a defective entry of judgment package and you need to fix it there is no deadline on the entry of judgment i think it's notable in that role sixty eight dollars exceptions was timely many many cases never actually have a judgment that's entered the policy in place and if shopping carts are regularly removed whether or not injunctive relief is necessary that was the ultimate issue with the ultimate decision on summary judgment we don't have any or you meant over that one hundred tambour and pac and the sharp case that wal mart's summary judgment was proper instead we're going back a little bit in time to the rule sixty eight issue that ultimately was rejection here wal mart issued its nd offer for will sixty eight it had specific terms or method for acceptance but what's significant here is jenkins responded back saying attached and subject to my will stick rejection if you go to the notice i read the notice of acceptance what's ambiguous about that so that what's ambiguous as they're saying it is we are accepting under the attached exhibit one which is the judgment it was separate judgment lodged with the court i am accepting if i say to your honor on accept your offer but it's subject to these twenty additional terms of these two significantly different terms now we having it lack of meeting of the minds and the court did the proper things or the district court to the proper thing to say well telephone to respond to any and all inquiries the court may have all right so you and i think what you just said to judge high as was it was not was it was sort of a twisting of the record too which is particularly troubling in this case because it seems to me that in front of the district court and on appeal if you will you characterize thinking aren't you basically saying they were committing fraud and it looks to me when i read it that somebody made some mistakes or they think they didn't need to do post order and they didn't want it didn't quite match up who cares because  explains what happened here he says i never prepared judgment so i basically ripped off another one it wasn't my intent to change the material terms and then she goes on and says at the very end on page twenty three and twenty four if the court believes that my phrasing o the order does not accurately or fully reflect a nd offer judgment proposed operation please be disregarded or amended accordingly she did this within the fourteen days this is within the fourteen days if i recall correctly so i think i feel like what happened here if you threw up so much dust accusing her of your fraud and of doing these doing this off either one it's pretty clear to me that you just made a mistake and particularly troubling because you say things that are false too in your briefing and yet i don't think you're like trying to com the court i just figure your little you know could do a better job so that i think is what misled the district court into focusing on her proposed order instead of focusing on her her instead of focusing on her acceptance or your honor which is a but by all means we're always trying to be absolutely accurate i'm looking at the statement that took place during the fourteen day period and it of a situation like this when we have potentially a very at least competing terms of the method is to go through an evidentiary hearing which is what was done here and see if there is an acceptance and what was troubling  cases that we cited in the brief from when a bird to riverside robinson riverside dance company again if i'm saying i'm accepted subject to terms i can attach them as an exhibit and have different terms issue becomes isn't jumped of or at least still being sought here by mr jenkins even after the acceptance and the determination was yes because we had responses indicating that there were still injunctive relief being sought and it and as a result the determination was made this was not an acceptance by the by the plaintiffs correctly so by the district said we didn't say subject to  the plan if except so there was no label on the exhibits and there was two things it was going things that were attached electronically and one of them was the operative judgment and the other was the proposed order and it seems to me like they they messed up the order here like think you didn't object to the post or because you didn't want to you didn't want that this offer to be accepted i guess one question i've got maybe it's just my personal we've got this appeal here if we rule in favor and send us back and say  honor and determine what are the terms are they accepting the terms unconditionally unequivocally and that's were the reinforcement kept taking place no we still have fourteen days and within the fourteen days counsel said admitted your own judgment just tell the court because the question because the question in my mind is what what are they accepting are the accepting absolutely without injunctive relief because i just you know i just beg to differ if you just look at the notice  acceptance it's pretty clear what they were accepting well as i say your honor that's that's why we have an evidentiary hearing and that's why judge wilson the district court determined that difference often the st proposed order being st isn't even that uncommon it's not my preference that it be done that way which is why i didn't realize that if done that way when i prepared the index of the record here but it's not improper and it's simply incorrect to say that the attachment very loose with the facts on this and try to throw tape into the air about what exactly happened here the suggestion that we should have just accepted it again is that it is a distinct change in position for wal mart because wal mart's position was they had withdrawn this offer if we had just accepted i again they would have been doubling down on the idea that it was an active anymore there really was not a full evidence here hearing that was done and we were given no opportunity to submit additional facts we were not often given the opportunity to submit additional parole likely warf the amount of the judgment that was accepted that's the necessity and litigating a civil rights case you bear the cost that the plaintiff will get his attorney's fees covered it's bizarre to me that wal mart chose to litigate over nine thousand te your willingness to work with us with our video arguments and that ends that case there are two other cases on the counter both of them are submitted that's pure record and browning they will take a short five minute recess where we get organized for right