our next case is number seventeen dash three zero nine five u s versus fleming coun of the e mail as if it is what the e mail sad and then you have an attachment to the complaint that has the doctored version with the brackets in the what you call the fleming and her counsel that you didn't withdraw your complaint or amended it to indicate that what you said in your complaint was not true that's that's contacted you on what they call the golden rule letter and provided you with an the actual copy of the email and requested that you withdraw the complaint and take other actions to correct the misrepresentations in the complaint and the focus as i see it on their request for sanctions on the amount of tracy's is on everything that happened from the time they sent you that letter shouldn't you adapt point at least have withdrawn allegations with regard to the unofficial version as the email ye before you get to that argument about the state claims to the extent that the district court determined there was a rule eleven problem here what you're really contesting is the sanction itself that you had a right on and have you found any cases in this circuit where this court has reviewed a district cour amendments we that we don't use it then that we didn't have any of that time we just have time to respond to the district court today and what is what is your argument given the egregious rule eleven violations here the district court did not abuse its discretion in striking the second amended complaint dismissing the case and awarding attorney's fees you have any comparable case from the circuit where a court has dismissed with prejudice for rule eleven violation i don't have a case that similar to this one but i'll have a couple of responses one is that that is not an argument that the appellant have ever made as you heard in the opening part of the argument the appellant are contesting the district court judges authority it even sounded like they were conceding a rule eleven violation and conceding that as long as the rule eleven violation is bad enough the district court can dismiss the case now more directly related in a more direct response to your question i did impairing for today find a couple of unpublished  been used in the discovery context right correct not not in the room where the context so why should they apply in the ruhleben context so i think they should apply in the rule of in context because also add that under rule eleven the rule is very broad it allows for any appropriate sanction it says that anything sion is allowed non monetary it includes monetary for attorney's fees and that victims are compensated and then to allow a district court to manage the courtroom and i think that is central to this case because the reason i started that appellant misled the district court we know that for a fact here because what happened was they filed improperly the second amended complaint in the interim the district court took up there were two for leave to file a second amended complaint and the defendant motion that plaintiffs were saying and quoting an e mail from judge fleming where they've claim that she's told mr walker to get the ad off the air turns out that allegation was totally false when  confronted with the fault of the of the allegation appellant dug their heels in and he's now saying that twenty twenty hindsight shouldn't have done it but that's what the twenty one day safe harbor period under rule eleven is for that's the time to take stock to take a step back and determine how to proceed appropriately instead of acknowledging that at that time what they had quoted in the second amendment complaint was actually not true he responded to our motion that for sanctions saying that the his actions were quote just and then proceeded along that path and here we are months and months later after months of of laborious litigation all because of these made up allegations well into your position that without the allegation that there was a the judge sent an e mail to her former law partner discussing it and telling him that her kids listen to that radio program right i mean you could infer something from that right but there's no  of acting under color of state law well he pleads that they use the court e mail right he believes that she uses a court e mail and it's apparent that she did use the court e mail but under this court's schafer case asking a question or telling a making an observation to a friend or out different a question doesn't show that the judge was acting under color of a law using her a badge of authority to order someone to do something and the reason why they i suspect they added the language that included the order is because that's what they needed or that least that's what they thought they needed to make out that second prong under color of state law prong of their nine hundred eighty three claim because under this court shaper case it's not enough that a member of a government employee does something it doesn't it's not even enough to do it during your course of business and it have to be there have to be a close nexus between the position and what the alleged violation is here and without that order the and state mine is right that is correct but i think this court if it had questions about the dismissal with prejudice as as a sanction could affirm on alternative grounds and i think the district court had that in mind when she was laying out sort of what the alternative grounds would be and why all roads do lead i'm not as well i'm not following your alternative grounds but what alternative so the alternative grounds would be and i think the complaint that includes the doctored e mail and the related allegations specifically paragraphs fifty and fifty one of the second amended complaint once those are taken day and doubt you'd be able to pursue those in state court right so i think that and maybe this is what your question just math was getting to i guess the alternative grounds would be to affirm in part that would be to  its discretion in letting those claims go under its discretion and that is sort of what that is what the district court outlined in her decision because she did address you know what would happen if i but wouldn't the state law claims then not suffer from a whisper judas dismissal i think that's right there would be a different posture in the state court and in full disclosure the plaintiffs have already filed a follow up lawsuit in the state court that the state court issued summary judgment order granting summary judgment to the defendants because of the because the federal court claims were repetition of the conduct or comparable conduct by other similarly situated i mean this this is a pretty harsh sanction here it is a very harsh sanctions and the district court recognized that and i think what's important to recognize is it wasn't just the initial violation it wasn't just lying to the court and saying hey court this is what the e mail said the judge ordered bill walker to get the ad off the air even though it wasn't true even though they had no reasonable basis  no one with first hand knowledge to say that was true that that was bad but that wasn't all then one confronted with the real e mail they didn't back up and say ok let me withdraw that let's change  you know to that heat from from day one and the judge robinson's concern i think was that they weren't getting the message they weren't understanding how serious she took this and as a district court judge is very difficult to manage her case load and manager courtroom allowing these sorts of things to go on do we review it for an abuse of discretion yes and that's exactly right you have you review all of that for an abuse of discretion you this whole issue because it's interesting that your your attorney's fees were were higher than two reasons one i have a higher billable rate even though it was three hundred seventy five compared to two hundred dollars and second as the attorney general explain application he didn't start keeping time records until he realized he was going to follow ruhleben logic because i'm a private lawyer who get paid by the hour i have the records from the beginning that's why that's the discrepancy of the two i have a question for did my town media file a separate motion for sanctions no your honor isn't that required under rule of and yes your honor so why should we were doing anything because because i believe that said under the exceptional circumstances that there was an opportunity to cure or there was an option to withdraw we had an heated conversation on the rule twenty six conference on december twelfth that's reflected in the record by the way well this is just an oversight that you didn't file no it's not an oversight i didn't file it for the same but you said it but no wind twenty one days maybe not required there might be circumstances where we don't really need five with that and that's what these circumstances are here absolutely nothing in the record whatsoever w would you like to take two more minutes krishi the arguments of counsel the case shall be submitted and