the bottle so i've reserved i think seven minutes to deal with that our appeal stems with several post trial orders issued by the district court and i'm going to start with i think is the clearest one which of non student use of discretion which is  the plaintiffs in the class after having prevailed at a class white trial and you know warded a verdict of nearly a one million dollars over minimum wage violations it was ordered to pay warner its taxable costs pursuant to rule fifty briefs there is not a single case that we were able to locate in the entire jurisprudence of a fairly or standards act where employees who successfully obtain minimum wage damages from their employer were forced to pay their employer's costs at the end of the case  broader because it has the attorneys fees provision which the court cases say can bring in other quote unquote costs but they seem to come in under the fees provision right at the fair labor standards act allows any looking at this what i what i what i mean it's your case you're saying this is your lead issue you would probably know i'm just looking at the statute here and it says allow reasonable tourney's fee to be paid by the defendant and costs of the action  was in there that word costs well your honor i stand corrected i think we were focused on the fees and the costs because the case was interpreted tourney's to use to include costs well be helped all right well i think it would be helpful if we could be precise though about what what amounts are under what part of the statute i understand attorney's fees allows you to get expert witnesses and so forth but the word costs in there as you  get some costs and my question is whether those are the same costs that are under one thousand nine hundred and twenty but if you didn't know the words even in there you probably haven't thought about an answer or judge it's been our position throughout the world title to those costs under the  itself so long as the reasonable well go back to your point is you think it was an error for the court to order you to pay werner's costs and my question is whether it would be ok to offset court has determined what it means to prevail which is that there is a change of the legal relationship between the two entities and clearly monetary judgment constitutes that it would be an abuse of discretion to entirely not award costs or fees absolutely whereas in real fifty four dollars it would not be because a fee and cost awarding of the f l say is mandatory under the statute and i could not stating that the court couldn't do an analysis and find cost to be unreasonable but that's not what the court did the court just found that because we were partially successful we were not of werner was entitled to his costs and essence we see address our cause but i think the answer is no there couldn't be a full offset unless it was the term the cost for a reasonable it wouldn't be because  reasonable cost of the action so again we get back to the analysis would be where the depositions we took reasonable in this case you actually know they were because the court ordered those very cost to warner so there'd be no reason to understand the depositions were required for the prosecution of the action judge collared and it is somewhat moot because the court didn't award us any costs of which to offset from and that was an alternative correct and therefore didn't fall rule one thousand and six dollars which simply requires that we make the originals of bailable to the court and that we provided at least thirty days before trial in which case we provided it almost a year and a half before trial the the court s jones will hear from you the case back to district court with instructions to enter judgment for warner on the short rest break claim we know which claim are to me an order for werner on which claim  and eighty thousand dollars to actions right exactly wrong we have two reasons for making this request st that the court abused its discretion and applied the wrong standard when granting the plaintiff's motion to modify the final scheduling order deadlines filed just three days before the close of discovery the court allowed the plaintiffs when granting its motion the plaintiff's motion to pilot corrected expert report and it did so because the court found it was necessary for the plaintiffs to pile a corrected damage report in order to dispose of the case on the merits in other words based on the evidence they had at that time at the close of discovery the case was over because they didn't have admissible evidence of damages so they're going to give the plaintiffs the right to do over and that's the standard the court applied in granting that motion granting them  right to file a corrected expert report on damages well after the deadline and more importantly after warner had exposed the flaws and errors in the calculations and the experts methodology to the extent that the expert admitted during his deposition that he didn't accurately for what a liability calculate damages is if this judge dramas ruling that you're talking about yes winkled case and in many cases since then the fireworks case that when you're talking about a motion to amend deadlines enough final progression in order you have to apply rule sixteen it's the rule sixteen that applies in that case and rule sixteen specifically states that it's a good cause standard this court has stated that that good cause standard is not optional it has to be applied and judge proceed on the merits rather than allowing us to win after we've gotten those and missions from the plaintiff's expert good cause by this court standard is diligence the moving parties diligence in meeting the deadlines judge drawn found that they weren't diligent in meeting the deadlines of filing an appropriate expert report he said there was no reason the expert could not have discovered the errors on his own on a timely basis and submitted a an actual report within the deadlines that met foundation and wasn't full of errors he also found that it was substantial prejudice and harm to warner to allow  redo or to allow a corrected expert report because werner had gone through the trouble and expense on a timely basis of exposing all the errors in the expert's report so it was a substantial prejudice to warner so he pounder wasn't good cause there was substantial prejudice to warner but then he applied the wrong standard and allowed them a do over well suppose that he found no good cause analysis is over some courts well let's also look to see whether there's any prejudice here here there wasn't good cost and there was extreme prejudice so wonder rule sixteen dollars the case would have been over because the because on or understood that the evidence wasn't admissible so you don't get to rule thirty four dollars you don't get to any other standard so what was he supposed to do under your view what he should have done is denied the motion we had motion which most i'm sorry he should have denied the motion filed by plaintiffs to modify the scheduling order deadlines we had already filed so at that point now he has an untimely it should just be denied and now let's he should have addressed fs would be able to go forward on the merits because it was apparent when the what plaintiffs expert admits that his calculations were inaccurate and unreliable that they don't have any admissible evidence and on damages what if they come for something that's late after the scheduling order deadline what is a district court to do that i think that's that regardless of what the plaintiffs calls it even though in this case they filed their motion under rule sixteen but when you're trying to correct an expert report submit a new report not a supplement report but a new report that has substantial changes you have to follow the requirements the good cause requirement a good cause standard under rule sixteen if it's a supplement we have different rules that apply and but the court specifically found this was not a supplement this was a new report what we're saying is that because the court committed air an abuse of discretion in granting the plaintiffs a do over and extending the all the deadlines extended the trial out by eleven months extended all the deadlines that was error and an abuse of discretion so you take us back to where we would have banned which is ok now consider the da promotion and motion for summary judgment based on getting the admissions from their expert that their damages that he calculated were not fair and reasonable were not accurate were not reliable damages ok we're back to that now away and when you get to that point the case should be over because the plaintiff doesn't have any admissible evidence of damages on either of their two claims they don't have admissible damages on sleeper berth which we want on liability at trial but they also don't have and miscible damages on the short rest break claims so the case should have been over and to allow that order to stand allow this judgment to stand in light of that order is contrary to rule sixteen it renders rule sixteen meaningless it's contrary it's contrary to established case law beginning with the sherman winkel case and a lot of cases since then and let me pick up on judge james question the say we agree with you what what give us give us step by step what that opinion that agrees with you on this point would look like what would it order what what it direct the district court to do b because the judge drama found that the evidence on damages wouldn't we couldn't proceed on the merits the plainest would be able to proceed on the merits he's saying that the dobber motion would have been granted and i think that's a pretty easy conclusion to come to when the plaintiff's expert admits himself that he has calculations are inaccurate and unreliable so when the plaintiff is in that stage they have no admissible evidence of damages and the case is over so our motion and our motion for summary judgment would have been granted and it's it's not even a gray area when you have those types of admissions from the expert that their calculations are unreliable they're in accurate so that's how we get to the truth the relief we're seeking here your honor which is that the the judgment on this short rest break claims should be vacated with the instructions to the district court to enter judgment on the short notice of this expert eventually testified at the trial said in an answer to my question i don't know if these errors these problems can be corrected he didn't know if double counting damages was an error or not he admitted he really didn't know much about the lawsuit he didn't know if this data was capable of being used to calculate damages he said his damages did not accurately and reliably calculate damages for this class when he comes to trial and gets a redo he changes all that and says oh yeah my these are accurate they're reliable and what he did was the plaintiff's lawyer told him here's the errors you need to correct and they were the errors that reported out in our deposition through examples and an examination of that expert that you did this wrong you did this wrong you did this wrong this is wrong they correct the errors that we pointed out and then come to court and give one hundred and eighty degrees different opinions that he gave in his deposition his st deposition where he said this isn't accurate this isn't reliable i don't know if this is the proper way to calculate damages he went one hundred and eighty degrees and gave a whole different opinion in court so that should have been allowed to happen i'd still like you to address again why you think judge drum was wrong to rule and rule thirty seven i mean i understand there was a motion here under rule sixteen do change the deadlines but suppose they hadn't file that motion they just filed a late report or a late late information  you're not allowed to use the witness or the information to two reasons why that rule doesn't save them here your honor st of all this court has made clear many times that that's not the rule that applies in situation when you are going to have to modify the scheduling order and that's what they did they modify the schedule in order to submit a corrected report well after the deadline and they pushed the trial back eleven months so that's that's reason number one reason number two is i believe under rule thirty four there's still a balance in here ok is there prejudice what's the through what is real so he's now thirty seven what's the harm and he found in a can it can't be questioned and they don't question the findin here that this was substantial prejudice this is incredible prejudice to warner when they had it extracted those admissions from the plaintiffs expert and told them all the places they made mistakes and then the plaintiffs get to go use the work that were did throw out all of the deadlines in the final progression order start completely over and correct those calculations based on the work that that warner did that is totally unfair it's not how our system works to allow this judgment to stand would be the same as i have that be tearing off the blindfold on lady justice and then overloading the scales of justice in favor of the plight of because when it comes to the burden of proof on damages they don't have to worry about what they they prepare initially because they can wait for the defendant to come in and tell him where all their errors are then they can go ask the court to throw out all the scheduling order deadlines and he'll do that and they'll make a career give a corrected report based on all the work that the defendant did that's not how our system supposed to work so that's why we believe we're entitled to the relief of a vacating the judgment entered by the trial court and remanded with instructions to enter judgment for warner ok could you spend forty seconds on fs claim is formal receptions and in the mormon case we know that's not true that we have the marmol case of from our court yes that that that was a handbook case where they didn't follow the handbook and filling out the below cost here it's even worse than that they use here in in practice here in nebraska to fill out the bill a cost when we're seeking taxable cost is an extender of the corks discretion that's that's right so why why is it ok to  because of our cross appeal and we have the other reason on cross appeal is they didn't prove their case on the short rest breaks because they equally did state law with federal law and on rest breaks that those laws are different very well thank you for your  of issues on trial and both specifically state that in alternative any other sanction an award of fees and cost can be provided which is exactly the district court did here by warning substantial want to warner which was of course paid with respect to the defendants arguments that even relate to the scheduling order it's worth noting that they stipulated and consented to to the scheduling words which post date them when they appeal which would have superseded and therefore mooted the very scheduling or the appeal with respect to the issues as to the admissibility at trial or the denial summary judgment those are also you know walking toward the orders ultimately what would be on appeal is what was presented at trial whether there was evidence to support the jury verdict or not whether denial of summary judgment which inherently kept the same date you refused to let us provider we want to report my new expert because we wanted him to actually change the date he didn't and stead he denied our request for a new expert he allowed our then expert to change certain issues and it's worth point out what the errors were because warner actually solves methodological issues what occurred was warner had produced about one hundred million or so time records in the case some of which were determined to be inaccurate warner basically stated the time records they had in possession were required to maintain weren't accurate our expert had relied on those time records and therefore had found time to be work which ultimately he concluded wasn't based on were statements later that their time records weren't fully accurate no werner states and the court agree that we could have done our own analysis and found that while there are certainly cases in terms one of them that discuss the quarts of discretion in how to handle this and many only in here in the courts discretion is judge strong could have won either way and perhaps this court would uphold a decision that would have excluded the expert report