help you out as well thank you the primary issue in this case i believe is the timing this issues of the compliance with through fifty four six of the local rules or forty two of the federal rules since the just tick northern district has has adopted a set of the same standard time standard as the federal rule for the rules of procedure that is that is controlling this court has long held that local rules are binding on the judge of the district court the head of parties and the court of appeal consequently the issue then becomes whether or kukkonen or any number of cases terminated the action with prejudice assoc when we the time to follow the motion not necessarily hear it but the time to file the motion another jurisdiction and also in the second circuit that support the rule that a dismissed with prejudice begins to run time begins to run and a party who is seeking attorneys fees must request motion for an extension of time of the rules next week either stipulate of the parties can stipulate to extension of time the the applicant move the court and the court will consider it and thereby extend the time to file a motion in this particular instance there is no indication in the record that any attempt was made to extend time there is no moving paper  settlement the procedural part of this is somewhat complicated in that the settlement was the terms were negotiated on march twelfth the dismissal with prejudice  march the twenty fourth correct so that terminated the action the finalization of the settlement agreement did not occur until may the tenth the court had already lost you if you consider a conditional then to win your argument you would have to have it relate back to that bank i don't consider conditional but you would have to have it relate back to back prior to the time the court was the subject matter jurisdiction which you know what you're saying the thirty days you know that he forgot to do where he said well i'm not signing the settlement or you couldn't of course that you know that the reserves my right stipulate to get you know to agree to an extension  court you yourself admit that the usual legal fees is separate from the settlement absolutely absolutely so why isn't the game playing to take advantage of this you know because they forgot to ask the judge which voice normally forth in the northern district period or rule sec says you have to if you want to get a sort of time you have to apply for has that's and then a judge can granted or not granted that was not done so so at some point in time the local rules relevant to this particular proceeding and if they're not we lose but if the local rules are political there is no way that the plaintiffs comply with the local is if attorneys fees are separate from a judgment of dismissal and by agreement they're going to be negotiated correct yes and and the settlement agreement i but you're saying well now even though this was may tenth really you should have filed your motion for attorney's fees previously that's the only thing you're asking correct no there isn't mechanism the rules say that if you if the rules say that you have a right to apply for an extension of time and it was obvious that the parties obviously were not in agreement as to fees and it's up to the plaintiff to preserve her right to fees then she can that there is a record that the to the court where you can order there is absolutely no case law that i'm aware of that allows a district court to grant an extension of time that's not put on the record by an order done there is no order in this case period or so so no matter no matter whether or not you consider game playing or not the local rules six the it is a catch twenty two if this dismissed with prejudice without incorporating the the settlement agreement jurisdiction but it also starts the time even president has a dismiss of a prejudice period and so the burden falls on the movement to guard to record and he has the movement now the fact that the court might it might have made a mistake why should the fence counsel appeal i didn't the issue the issue of the rules are there's a lot of cases that have come down where people have lost signal in court is talking case studies talking about a hundred sixty thousand dollars or the fees because they didn't do it in those courts said they're the only way to get fees in the federal courts or by following the rules period or if you don't follow the rules he way and so turn in the bottom line  if we accept your argument that a rule is a rule as a rule and your client gets a windfall because a mistake by the district charge or because of an action by the district  the it's even better and o'connor where the court says i intend this over see this i'm going to be the settlement czar and the  calling on them we're just in the early stages there of how to write the language correct correct well you have three six three decisions came down you have i'm at the outset i'd like to point out that there are several alternative bases bases for this court to determine that ms delish not time barred by the fourteen day time period specified in the feller federal  local rules for filing a motion for attorneys fees and costs from a final unappealable judgment or order there's policy and before that we have two situations and here we have at one time the march two thousand and four conditional dismissal and it was a conditional dismissal because the said if the settlement is not consummated if the matter is not that the settlement matters not resolved then just you you if it doesn't work out what's the difference well in this case the court said if the settlement doesn't occur when he reaches the end then you can write for any reason plus the court to reopen the ca and it and the whole matter didn't settle within ninety days what you think that i mean you can but now we're splitting hairs i'm not saying whether you know component through everybody for a loop frankly you know i mean people of district court judge has been doing this for years rights away of my really distinguishing this from hank stead well what happened here your honor was at the settlement conference on march twelfth the parties placed on the record the settlement of the juncture of relief and damages and they placed on the record the court retained jurisdiction to enforce any settlement agreement that occurred as a result of that what happened after march twelfth was the parties and the in the counsel for the parties went through several months of it set forth in the brief and it's in the in the in the record in which they they differed as to what the terms of the settlement were so they were they spent until may tenth or beyond that even trying to determine what the settlement on the injunctive relief wasn't in one point in my in my time sheet to says this is the six settlement agreement draft that the other side has has has presented as we go back and forth but we did anybody go back to the court and say look  i'm asking you did anyone go back and say not ninety days but reconsideration fix this is a problem because when we go down the road with this order we could find ourselves in the ninth circuit trying to we go back and say that you know what we what we did was we what i did was i relied on the conditional dismissal which said if the matter is not resolved within ninety days before the ninth before the ninety days runs i requested that the that the court vacate the dismissal and restore it to the active calendar for further proceedings and that is what the court did the court didn't say this is a final appealable dismiss have a conditional dismissal which is not a final appeal of all order until it becomes final and doesn't become final until in ninety days runs and i cited a couple cases which you know support that proposition so even if for example from march twenty four the parties from march twenty four fourteen within fourteen days after that the parties did not have an agreement on the on the injunctive relief and the dam will have agreement on the damage  are going back and forth are still yeah that the record says this but you know i interpret it this way you interpret it this way we need to reach an agreement so there really wasn't an agreement during that time frame within fourteen vacate the dismissal which will do and put it back on the active calendar which is what happened so it never became a final people border and the second point on the march twenty four dismissal issue litigation in the district court or treating the attorney's fees issue as alive and well and proceeding over many months from the march twenty four conditional dismissal order as well as they did the same thing with the injunctive relief they can treat it as not settled be if they had a settlement agreement that was placed on the record which it was which they then later you know parties got and disputed what and then it wouldn't be  appealable but i think that the point you know that we're talking about here on the on the stipulation order is the the other basis that they're arguing that july nineteen what actually happened here is they never discussed the march twenty four order they went along and even in a june seventeenth in a june seventeenth case management conference mr brown's signed the case management conference which said the parties are trying to negotiate an attorney's fees if they can't resolve it they expect to ask for a further settlement conference and if they can't resolve a further startlement conference then they expect to make a motion to the court so i think during the whole process the notion w that this was not resolved but i want to i want to move on to a couple of other points which were raised in the in the reply point they say they didn't follow the local rule six point two which says either stipulate and request enlargement time or make a motion first with respect to that at the settlement conference with judge ten in  procedure eighty three which deals with local rules by district courts and judges directive states at eight to as follows a local rule imposing a requirement of form will not be enforced in a manner that causes a party to lose rights because of a non willful failure to comply with a requirement now here local rule six dash two a upon which the defense rely is intitled form and content and is subject  it was in the stipulation in order which the judge signed and the judge said that the fourteen days did not apply but it wasn't in the form of a stick of a declaration it was merely imposed by f r c if r c p fifty four d to be and what the court said is that the principle of law that the court enunciates in transcript in its holding was that the excusable neglect standard of federal s qualifies a court has ruled fifty four power to extend the time for filing attorneys for emotion after the deadline expires that's what the transfer to court hell did not hold that excusable in that standard of six the rule six qualifies the district courts power to extend the time for filing if the motion before the deadline expires in this regard regard stated that we expressly reject with life's argument that rule fifty four's introductory clause unless otherwise provided by statute or order of the court gives district courts carte blanche to extend the time to move for turn these fees after the deadline expires in our case a rule six finding an excusable neglect does not apply its mordor in july was made before any deadline occurred i also want to note that we do not think the fourteen days began to run in any event because the stipulation and order of  before the expiration of fourteen days or so they conclude that it was done after fourteen days without finding excusable neglect under rule six here there was excusable days and the local rule get played out in the district court we have an order from her addressing that issue you know the we have we have three things we have basically four things we have the march twenty four dismissal in which he said if the matter is not resolved within the ninety day period the matter not just you know basically the whole case ok then we'll vacate it and restore it to the calendar within the ninety days have her august order in which she's says i'm not going to reopen the case because i i asked the case to be your opening a second time you know because the matter wasn't resolved and she said i'm not going to reopen the case but any motion that you file for fees i'm going to here and that's my point is this is that no time during orders did point raise say so what it doesn't matter because your fourteen days has expired did they ever say that i don't believe they did any document in which they make that argument in the district court i don't believe they d bring up the fourteen days rather they proceeded along the same baseline that i was proceeding along the same baseline that the court ultimately found was the way that the parties were proceeding i guess what i'm trying to say is people always seem to start with the most complicated on the motion in the district court on that issue i said if the court finds that there was a fourteen day requirement i would have i want to make a r sixty b motion or six rule six motion you know both and the court said in this in the papers the court said on the record that's quoted in the papers that i submitted i'm not going to find it on timely meeting therefore you don't have to make the court determined was trying to help me out without doing violence to the room i said if the court determines that the fourteen day rule applied either in march or from july or  court doesn't but if it does i'm saying that either this court should make a finding an excusable delay on the record as they review the record or if this court does not think i we have made definitely can't do that i can tell you that  know as an available remedy so you're married reference which to a conference in june where the thing was sort of set out that if you can settle what would see right the judge was present at this conference assume well what happened was that what happened was when the court vacated that the march two thousand and four dismissal and set it back on the active calendar she called for a case management and was signed by mr brown was signed by me that the parties are negotiating the attorneys fees and costs aspect of this case if the matter is not resolved by negotiation then the parties expect that they will ask the court to submit the matter back to the magistrate judge for a further settlement conference on attorneys fees and if it's not resolved at settlement conference on attorney's fees thereafter the parties there after the plaintiff will make a motion for fees so when she conducted the july two case management conference  had that in her possession and when she made her july nineteenth order of dismissal retaining jurisdiction and saying that i could you know make a motion for anything the parties are going to and which i also the parties are going to negotiate fees and if they can't reach an agreement then they're after a motion and that's just kept in all the orders we keep saying that language that right razor down the road we were you know i was basically going down this primrose path believing and i still believe that i did everything correctly that i did within the ninety days move to vacate because the matter had not been settled and after the july one thousand order and i mean during this whole period my time sheets are going as paper show my time sheets are going over to both defendants counsels first in april and then in late may for them to review and they have them and that  raises you know the last point he said what's the prejudice i mean i think it's very clear that there's no prejudice the reason for the fourteen day rule there are several reasons one of them is the prejudice the other party there is no prejudice and  they knew exactly what was going on the whole time they had my time sheets the reason of you know having a a fourteen day rule so that any the attorneys fees can be consolidated with appeal on the merits there was no right to appeal in the marriage so that doesn't apply if there was no right to appeal on the merits then there's no fourteen days it begins to run in the first place because the rule says that you fourteen days from a judgment or appealable order a judgment which includes an order and has to be appealable there was nothing to appeal there was nothing to appeal in march when the parties placed the sum on the record so the court would retain jurisdiction and there was nothing to appeal in july when the parties filed the stipulation with the court and the ok i am not certain the without a request or stipulation of the parties i don't know because the way the rule is written requires a motion and so an order so i'm not sure but your dress is honest good question about my raising the issue when i first got paragraphs winds twenty three through twenty eight on page one forty i specifically tell the court i believe there is a time in time in this issue that needs to be addressed at that time i had not done the research and joining that letter is to ask you one final question and that is of course rule fifty four permits that if you have an order of the court then you don't have to comply with the fourteen days why wouldn't the court's orders in the summer of two thousand and four in which she said you know file your motion i'll hear it why isn't that tantamount to an order i knew this was going to come up