and if you look at the facts support in the square of the court stressed how the district court repeatedly questioned the policy against whom the determination was going to be made who by the way was represented by different lawyers throughout the case and if you look at the docket sheet is only about a month before trial where he goes pro per but then if you look at his trial brief which is june fifteenth when he's in said something in his response which he filed but he didn't and so i think the first argument we have is that all these arguments about fifty two c or way if you get beyond the waiver we number of circuit court cases and district court cases in our brief for the proposition eight fifteen to see applies in varying circumstances that you might say are at odds with the plain text of the statute but there's only one  to see order but it seems to me that the nomenclature should not necessarily be controlling and that you can look at the purpose of the pretrial conference as described in portsmouth you can look at portsmouth and you can say that but the judge did regardless of the label he put on it comes within the discretionary powers of the district court to simplify the issues for trial on the real issue i think and or portsmouth this was there notice was an opportunity to respond conference and that's ok with like understood but let let's let's look at the prejudice aspect of it mr geragos has not argued i don't think in this three that if the deans admissions are uphill that he has a way to get beyond fifty to see portsmouth or whatever you want to call it what he says is that he can't look at the genes admissions because the trial lawyer didn't submit a declaration saying here's a request for admissions by the way i never got a response but what the trial lawyer said in the motion under rule eleven was here are the deemed admissions and that's shorthand for saying under the admissions statute that we didn't get a response and mr chen had responded to those deans admissions he would have said well wait a minute i did respond to these but that's not in the records it would have been something that could have been put in the excerpts of record and it's simply another existence so that's a very technical argument that mr garrett has made to try to get around the deemed admissions which he has not argued if he can't get around he still has a case so i think i think he can decide the case on that point now turning to the trial i think that he was able to put on every scrap of evidence every theory he wanted to put on and if you look at  one twenty five one twenty six which are the claims that he claims he would be making at trial in the reach of the covenant good faith and fair dealing he specifically raises this accounting fraud issue that mr derek said was something that was not within the trial and in fact there was evidence at trial on the so called accounting fraud issue and what it was was if i believe it was mr francis who testified with respect to inventory they put in this warehouse that believes in hong kong that it was originally booked to mr chen but he was not charged for it and the reason it was put in the warehouse was this your chance had been so inconsistent and contradictory in placing orders giving forecast canceling orders changing orders that they couldn't timely get product from the warehouse in memphis to him if he actually placed an order so that so the product was put in this warehouse in hong kong in case mr chen actually did  but the evidence is undisputed for mr myers that those sales got reversed the product was never sold and mr chair and therefore could not possibly have any damages so i think there there may be while there may be a in what the judge wrote in the memorandum i don't think there's any absence of evidence at trial which was really undisputed on this point and we'd really have to go back and look at the whole record right and and remember this part of the case is judge under the clearly erroneous standard standard which is you have to have a definite and firm conviction that the trial that's made a mistake and if there's no substantial evidence to support the judgment and certainly there forward and so even if you say well thomas and betts didn't get around to giving the formal cancellation of the contract until july nine hundred ninety nine the in fact it had previously been refuted and that's a further reason why this evidence of the vanni and you see union and dragon is kind of a non issue because the issue to the evidence is that the contacts with those companies were in the one nine hundred ninety nine presumably in the period post or ph in but create formal noticed but again those didn't lead to anything in the evidence is very clear on that point but there was never a consummated sale to thomas and that's made a penny on that mr chen would have some claim he didn't prove his claims it's reviewable under the clearly erroneous standard there was nothing that he showed if you see motion that didn't ultimately come into trial he got ruled against and and that should be the end of it