expressed appreciation to court for lifting up the case of trevino vs city of fort worth because it serves as a great example of why the right defendants claims was dramatically different from the tree in a case should not have been dismissed or at least seven reasons if i may let me get through them st of all considering the cost of for being a trainer was a motion to dismiss obviously an adversarial step which required a defense process which by the way mike my clients had already been through and if you were comparable to anything it would be comparable to the as a rule twenty six type disclosure secondly interview no the actual was initiated by the defense in this case in our cases the defense was on involved rd of a motion to dismiss the route well motion is a very standard procedure everybody knows how that works in this case this is obviously a special procedure complete claim obviously this last misstep is where the where the the problem was it was definitely a special type procedure not the kind intervene which was a spy look as a rule twelve you have to do to be prepared to defend yourself comply with the it with the process here by comparison there's no prejudice to the defendants in fact the prejudice is as much to the plaintiff as the one who benefits by the further elaboration of  imperative to respond his orders quite frankly i think any court order is impaired to respond to unlike some of his prior orders he gave a very explicit expressed warning if you don't respond you case could be dismissed with prejudice and fi litigator for years and quite frankly as we laid out in the paper we were waiting for the mission orders from the court to try our case when he became counsel did you look at the docket that the individual docket we did that's what we concept is that theoretically something could come out that could impact your case but the twelve requires that signing up the ability to sign up reselling at absolutely but but you are your client didn't do that we did not do it isn't that exactly what happened in well if the questions was a rule follower about yeah there's there's a similarity between the cases they're oh i am sorry i mean even more specifically than that i mean isn't it it's a rule about signing up for e c f notices or that's one of the problems that in fact that their e mail did not we would've and could've gotten the direction to p t of sixty five to the really only question is why you didn't and it's literally it's not you know you have to go to a different docket you just have to go to the same one you did did you enter a notice of appearance in this individual docket so the same docket where where we were in the case literally we've been through the neutral process we're ready for to have to be free from the morass of the m d f to try a case individually is a reasonable to assume that an order could come out that could drag us back into the morass of the m d to go back through newton's process my argument would be that's a that's a tougher question is it the real question is it reasonable to assume that you would comply with the p t o right well is if you if you comply with the p t o i think he just he just told us obviously would've gotten all the mistake whatever you want to call it misstep breakdown it almost doesn't matter that's why the equities weigh into this so heavily did respond to the car you know what we did absolutely what we tried to say was here out of my gosh this is we respect course orders implicitly baghdad paying attention well i don't i don't really look at like that but i understand the point so the question is if you look at it now you know where we were in the case which is ok we didn't we didn't appreciate it thank you or you did say time for a battle though should be reviewed under the standard of a discovery a sanction for failing to comply with a discovery order judge james as you pointed out the court asked to provide some information supplied information as the order itself says is assaulted in the process a neutral report that i referred to that been previously said it was about seven pages a little longer than what we had here but that's what about the length of that report judge james to your question there were differently situated not all claimants had gone through the which is the one that we dealt with in the subpoena case as to my clients yes because sixty four didn't result for certain claimants did not result in dismissal by failing to respond to in fact as to my client sixty four did not lead to dollars and we look at the p t o and we say this looks like a docket management order not a discovery order so we're going to apply the standards we apply you know to documented meant and so what i'm struggling with is why we wouldn't do the exact same thing and say the docket management standard o sixty five and then i don't think p t s sixty four has the same kind of what are called discovery type aspects to it and i think it to look at the substance of the orders and sixty five says we're going to four questions three of them  then versus frankly on this record unavoidable because under the discovery standard the misconduct misconduct of the feathers but has to be attributed to the client not the error of counsel and there's no evidence in this record things that must be found st a clear record of confirmations conduct or delay and to a lesser sanction would not be adequate those findings appear nowhere in this record and there's no facts to support that record here the court simply said you failed  respond your dismissed with prejudice but at this they did a little bit more than that right the district court said respond or it will be dismissed with prejudice in art and i understand that the claimants argument here is well the district court can't say respond or you will be there be a few to choose from i think one fairly reasonable sanction here be like ok you're off the hook this time next time you don't get any more warnings if you fail to comply with an order in the future oh is that a sanction sanction because basically sanction is getting a pass the sanction is in the future if you don't get it if you feel anywhere in the future we're not going to throw a show cause order anything you're just out that could have been it could have been reprimand could have been a financial sanction mean that the other law the circuit which says that in the when you're looking at sanctions of dismissal of prejudice that the discretion is limited and that the stringent tests applied in here we have complied the question is almost ten years ago b p settled the case many years ago presumably to a boy spending the rest or watching the lawyers to show up in the circuit in the district court and all these other places forever and here we are we are still getting b p appeals years and years after this alleged settlement i think that is i mean they're paying i presume they're paying their lawyers  and they're having to deal with this so yes while it may not be prejudice in the sense of some major huge blow it's still prejudiced when a defendant has to keep  on keepin on keepin on particularly when they have settled the case i'm not taking away from the original disaster that led to this i don't i'm not trying to undercut under play that i'm just saying here we are so i think the notion that this is meaningless is in the district court to be fair not part of the record here was after the appeal and he said ok for one who complied with sixty five dollars now we want you to produce the documents to substantiate your damages and causation there again something we had done years earlier and then it set up this been addressed or whatever reason have not finished their case and not accepted wherever the settlement is if not whatever and it's allowing you know you don't know what analysis b p might be making or the various entities might be making of this material we just know you didn't give them tiriel been a timely fashion you did this five years ago with the notion that here was to update it and refine it and as judge davis said well i can only say in the case of park actually in our submission is in the record of what the already paid billions so who cares that's their essential argument so why should you care if they miss the deadline well i think that your honor i think that question is going to the question of whether there is prejudice here for the failure to to not comply with both p t o sixty five and with the subsequent show cause order and i think this court has already addressed that question it's judge party has to deal with non compliant plaintiffs or shoehorn somebody back into the process the more time he has to spend on disobedient parties the less time he can devote to compliant parties it's about to finish briefing more plaintiffs who did not comply with p t o s or the show cause order and the reason they're doing that is because every time there's sort of based small factual distinction or the  round of plaintiff says we're just like them so next time you've got five sets of appellants in the p t o sixty six appeal and then who knows so there is absolutely prejudice again you know it's not to say that it we're trying to balance how much praise but to say that there's no prejudice just is not accurate and i want to start a little bit with that the destiny appellants and also speaking in conjunction with the trevino case that this court asked the parties to address i think it will not surprise you to hear that we think that trevino strongly supports affirmative both sets of appellants i'll start with the destiny appellants because the trevino place case is very clear is judge and pointed out that failing to be diligent about your case and in including failing to stay abreast of events failing to sign up for electronic service when there's a specific court order does not constitute excusable neglect under sixty the line and you know we don't even think that that doesn't it helps preserve unexcusable neglect argument but if you accept that they did know number one this court's cases even before trevino said for example in the twelve said you have to do that they didn't monitor the master and deal docket or the website which has far fewer entries than the master docket it has the important entries like those despite the fact that p t o one said to do this they didn't diligently review the individual dockets because those dockets contain about ten entries time if you signed up and were paying attention so if you were not testing you signed up and if you were not part national you were paying  attention but you're one of these kind of over in the silence zone point is how much time would you have to spend reviewing stock in order to find things eleven i mean it's a very few and if you are in fact diligently reviewing your individual doc i mean and seventy eight of those entries are you know case assigned to so and so you know something's issues that sort of thing i mean the says sign up for the special final answer electronic service and when you do that you get the entries that are relevant to you so you would get p t o sixty really you know sixty five dollars would not be on your individual docket had you signed up you would get it but you wouldn't get a bunch of stuff that only applies to mr x over here i believe that's correct i think he's right this is a matter we don't even get the whole record anymore in these cases we get like this little mini record hopefully that is just what's this case about because of the massive record if we were still doing paper we're private all this room right yes that's so i guess i'm trying to understand if i were the lawyer for gaston and i well your honor i think that you know many of those cases were not and deal cases and they certainly weren't the deep water horizon and d l and you know i don't think actually either appellant here is even making that argument that they didn't have fair warning contest when you've got a man in the b p cage but i mean just generally speaking if you're generally speaking because if you you know because then you could actually contemplate that there might not be particular prejudice to the court or to the other party but here you have a situation where judge barbara is admirably trying to keep the trains running on time and move things along and in this particular case for example i think where the road actually i mean this case has been going on for a very long time after what is supposed to are going to settlement now i understand that the nature of the settlement isn't like when you have a car wreck and you give the other side an one thousand dollars and you go on it's more complicated because of the number of ten using the discretion that this court has afforded him and that he is afforded to bring these claims to resolution for example here he took the p t o sixty five information that was provided by by a compliant parties and he used he issued p t o sixty seven and under the p t o sixty seven order there was there were mediation set up and they were resolutions of many of these claims and that process has already finished so i think it underscores here that trying to you know shoehorn non compliant plaintiffs back in in this sort of m t l actually does interfere with judicial administration which is something that the pioneer court in the supreme court decision recognize and it's something that this court has recognized is something that affects the analysis here it affects b p it affects the compliant plaintiffs and so you know i do think it is the case that you know judge will most take for granted what judge darby has been doing for so many years and the discretion that this court has afforded him allows these to move forward if i can talk talk a little bit about the park national palance who did not respond to either the the initial p t o sixty five or the show cause order explicitly identify them by name the p c s sixty five order referred to a list that any diligent attorney i think would find as well but there's no dispute that they received those orders and that those orders applied to them and where i want to start here is i think because there's that you know really what they have is an excusable neglect argument you know really what this case is and it is the same thing as in dismissal they failed to do so and the only st time that they argued against dismissal was in the motion for reconsideration after dismissal and what this court did in all those cases including trevino is that only the court only reviewed the order denying reconsideration and used the standards applicable to orders denying the consideration so here you have an order to show cause they gave plaintiffs an opportunity to explain themselves they did not take that opportunity for whatever specifically says that the plaintiffs challenge the district court order on the motion for a new trial their order on reconsideration and the district court's final judgment on the motion to dismiss that they didn't respond to but the court only then proceeds to address their rule fifty nine and will sixty arguments on the order for reconsideration and that's exactly what should happen here and you apply it and that gets them at best to a manifest injustice standard that we don't think that manifest injustice is even a grounds under rule fifty nine dollars trevino doesn't include it many recent cases don't include it but even if you accept that that's a basis you know there certainly was no manifest injustice here and certainly not under an abuse of discretion standard they didn't comply with two orders including a show cause order they can see that they received them to show cause or identify them by name davis with correctly referencing cases where we've been generous if you will to  negligent party or whatever you want to call it this case is different from most other than perhaps trevino because destine just didn't sign up i mean they weren't destined to get any of this stuff because it in sign up ok mark national decided up did get the order and ignored it twice that's kind of different from the old days when you might get a letter in your secretary got it and she put it in your inbox something else got on top of it and so on so forth and so you missed you missed i think that's correct because these are all in the excusable neglect bucket you know they're you you miss something you forgot to respond to something whether it's a motion to dismiss intervene on ball in motion for summary judgment and by and rayford here in order to show cause  opportunities you had to respond and you say i'm sorry your honor i lost it i forgot it and what you can do is you can file a motion for reconsideration arguing under rule sixty one that you had excusable neglect and there might be a good reason for it i mean that i think the coward case from this point in the case of gaston they just they didn't have a mailbox to receive the letters so i don't even know it's not really just overlooking something that was on your secretary's desk or it got stuck in some other papers from another case or in the wrong file i'm using because most of my law practice was in the paper days and using those analogies they just didn't sign up and that was a knowing decision not to sign up because they didn't they supposedly reviewed the p t s and said to do it then in part national's case they got two letters and ignored both and so i guess i'm saying it doesn't seem like it's directly analogous to the typical case of sort of the one mistake or the one overlooked or the one that stuck on the secretary's desk well you're right there are there are multiple errors in both sets of appellants and you know and i think the sort of fundamental rule that governs is exactly what the courts at interview know which is that parties and their counsel have a duty to stay diligent about their case and whether a long time ago that meant you know you make sure you talk to your secretary to get the right papers or now that you've signed up according to court orders and you monitor the dockets and you do what orders tell you to do or you read them and you see that your name isn't a show cause or any response to it i think that's of a piece with it and i think that what this court this court said in  all the rules that govern what happened here that is one of the most fundamental ones but i also want to make clear in my remaining time that it is as i've already made that we think that the only for the park national tells the only order that is  reviewable here is the order that i reconsideration reviewed under the standards for that will fifty nine manifest injustice at best but i do want to respond to this idea that there are other standards that apply and i think the reason that park nationals comply are still the sitting there under the tree what about that argument with respect that argument is completely wrong because p t o sixty five require updated information that required information that went to the cour not to you know sort of sort of neutrals ether it required as judge davis but it required like a summary and a condensed information because you know getting somebody ten thousand pages of documents isn't very helpful and all of that information was then used in conjunction with p t o sixty seven i mean it hasn't just done done nothing it was used in conjunction with p t s sixty seven dollars which asked for additional information and then set up a mediation process for every single one of the compliant people off and you know we're getting closer to the ultimate destination the last thing i do want to say if i may hear is you know even if it is this is not a discovery order we don't think it is and even if you were to look at it under the the record  the lake consummation conduct no lesser sanctions and we think that that that that certainly violating it failing to respond in order to show cause qualifies this court has affirms dismissed with prejudice i just want to give the site very quickly maxie the citizens national didn't have a notice in the individual case when we were looking at the individual docket diligently we're just refreshing effectively we're looking at every constantly looking at weight because that was that they had the event we were waiting we've been through the process mind is is this something we should be excused from now granted you would ask permission obviously you would just assume it doesn't apply and in this case i think is also interesting to note the interplay between the individual cases and the and that the master case lesser we sense signed up for a lesser which is somewhat of irony you get everything it is a daunting withering challenge you look at everything about the rail line that would tell you  this is more relevant to you than just to the world no you have to kind of scroll down there's a lot of technical computer identification information on it is not easy it's obviously doable and frankly none of it wants to us anymore that s that the cia of this i have to keep watching and enjoying sort of vicariously everybody's doing let me say this i've got thirty seconds you know the legacy of this case should not be that failing to comply with a court order requiring a submission of information which benefits us as much as anyone to be quite frankly is not adversarial it doesn't deprive the defendant of it up to anything within itself is not a marriage determination s it wasn't just discovery type i would make that point nd this is the questions about you know the notice and what you get and what you don't get another p t o sixty five nor the show cause order entered on the individual dockets partner nationals document he's more involved in the district court than i am but it's my understanding is they get everything that's followed on the master docket comes to them through email that is there any filtering by way of the rail line or anything like that not that i'm aware of your honor respect to trevino i don't think it's a political as to the park national case there there was a spot of motion filed that was going on opposing was great and it wasn't a sanctions case at all it doesn't really tell us anything about the analysis of this case write this to avoid what the peace council was alluding to which is everybody tries to get out of it now if we go your way they're using gram to blow it open so that army really don't have any more everybody he gets dismissed people are going to keep you know pursuing appeals as is their right and you need to basically just going to stop the appeals and basically stop giving anyone hope of ever reversing the district court and as we've seen with at least the d'am no possible way you could say somebody wasn't aware of what was going on they had fully participated and then when the judge barbie didn't give them as much as they wanted they just ignore judge barbet understand exactly what the court did there and i think that cuts off a lot of this we're dealing with arguments in this case we are now concluding our oral arguments for the day we will be in recess until tomorrow morning