we move to our fifth case of the day taylor versus brown you may please the court my name is dan fence heat on behalf of mr taylor this case is procedurally complex but relatively simple when you look at what actually happened below it was undisputed below that my client mr taylor kindly tendered his response to the district court's show cause order before the july thirteenth that time because of that under the prison mailbox rule vish the response of the show cause o der is deemed filed on time before the july thirteenth deadline the severance order creating the second claim was only issued because of the district court's mistaken assumption that my client did not  therefore the severance order which he shouldn't be in error mr taylor never incurred a second filing fee for the creation of the second case because it never should have been created in the first place it's a district court and the judgment order ordered that the severance order be placed on the docket in the six thirty one case the severance order is therefore part of the six thirty one case as much as it is part of the one of four case and they the severance order merged into the judgement on review response of the show cause order in the sixty one case was never formally filed by my client in the six thirty one case like the response to the show cause order initially filed in the first case was never formally filed in the second case that's what i mean right it was repeatedly referred to however and in fact mr brown in spoke to the response of the show cause order in his motion to dismiss the six thirty one case right and said the court told the court what it said and said the court can can can assume that that document was filed on time  is in the record in the six thirty one case well it's in the record in directly yes indirectly we don't have the actual documents no record we did not have the actual document in the record in the sixty one case but not only does the the the court have jurisdiction because the kid at the order was filed it because the order was placed on the docket but also simply because it relates to the case before this court which is the case that relates to what was originally called count three of the complaint the defendant also objects now for the first time on appeal to the factual predicate as to whether or not my client kindly responded to the show cause order below the defendant conceded and i would point the court document seventeen at page two which mr brown's motion to dismiss where he says on three occasions quote plaintiff's attorney did it to agree to dismiss count three of plaintiff's complaint in the one of four cases by the court's deadline and before the court directed to open the instant case later plaintiff's attempted to comply with the court's order to show cause by voluntarily dismissing count three before the july thirteenth deadline so those statements were a clear concession by the defendant that my client timely responded unaware of what had gone on in such gilbert's case it will just to the extent that he didn't know that there had been an attempt to file a response of the order to show cause he certainly didn't know it at the moment of severance because the order had nap and filed at the moment of severance severance occurred on july twenty ninth talking about when the motion to dismiss is denied he denies the motion to dismiss is made by brown in the second case thinking that he's doing the pla exactly there clearly was a misunderstanding as to what is on the court's part as to what was going on there's no basis in the record for that misunderstanding because if you read mr brown's motion to dismiss and you read my client's response to mr brown's motion to dismiss and his subsequent response docket twenty in the district court to the district court's order that he pay a filing fee both of those responses make clear that my client wanted period no qualifications the second case dismissed voluntarily in accord with his wishes as  expressed in the response of the show cause order why the district judge appeared to think that his hip that my client was reluctant to dismiss a second case is not clear to me based on those filings but those filings are unequivocal that my client wanted the case dismissed voluntarily period so in addition to mr brown's concession below that my client responded on time i was briefly summarize the evidence for the court my client did submit an affidavit attesting to the fact in the six thirty one case that he submitted the document on time the attorney general's office confirmed in a written letter submitted it document our thirty dash one that they received a response on july eighteenth two thousand and eleven which confirms corroborates that my client filed the document on time and the prison grievance records which are in the record below also contain the statement by the prison librarian that mr taylor gave her the response quote in july and she falut that she obviously did not  stipulation issue even if the court can't review the severance orders the order under review is still error because the district court was powerless to issue an order under forty one b dismissing the case with prejudice when the case is already been dismissed as a result of the rule forty one a stipulation that the parties agreed to the defendant i don't believe an appeal concedes oeuvre disputes that the documents were sufficient to constitute a rule forty one a stipulation and they clearly were under the precedent good morning and they actually use the courts counsel of assistant attorney general evan siegel on behalf of defendant change brown i agree with counsel that this is a procedurally complex case a lot of briefing and a lot of  moving parts and i also agree that if there was a simple solution but i think we're going to part company and what that is there are two main things here that taylor easily could have done and should have done to avoid the district court's dismissal both of them very practical first he should have paid the filing fee for the action and second if you couldn't do that he should reply for you former partner status now inexplicably mr taylor did neither of these things and it's not that he supposedly ignored into the new case once the prison officials screwed up the filing right into your question earlier your honor about just what came in to this new docket six thirty one from one o four the re was a suggestion earlier that well by inference reference the court him look at from that separate docket all of the attempts that failed to e file that's not exactly true the severance order itself which we do not dispute is in this record specifically brings in five additional items including our answer file on june severing is before the court but the reasons for that severance the very reasons that the district court in one of the four did never heard from mr taylor is not before this court except by reference and later  later documents why does not bring up the documents that at least relate to the separates order otherwise you know we can't meaningfully review the second sort of without my looking at the documents that relate to that the four corners of the severance order list in one of four within the confines of the one of four case to wait in into it until that case ended and then to appeal from the decision in that case to address whether the now that mr taylor has no interest in suing mr brown he's he's not said that he doesn't want to sue mr brown in his briefs what comes to the fore is that he doesn't want to sue mr brown now  four case right now i have he is in the necessarily a free pass for i got to pay the filing fee over time and maybe he decided the case against brown just wasn't worth it and he wanted to maintain the case against the other defend he's never said that and there's no as we sa briefs there's no settlement on the merits there was no exchange of money we're left with the impression that he very much wants to sue mr brown he's never said otherwise now i want to focus on the questions about the rule forty one a stipulation i think that's really the heart of this case because the mailbox rule does not ultimately does not aid mr taylor let's assume that miss taylor had successfully communicated to the district court in around and eleven in one zero four case that he wanted to voluntarily dismiss count three that effort was a nobody for two reasons under rule forty one a party cannot dismiss voluntarily dismiss a single count and mr taylor his reply brief where it's the practice of district courts in the southern district to ask parties if they want to voluntarily dismiss account but the rule for strictly consist construing rule forty one a it doesn't there was no stipulation here there was no stipulation there was no meetings of the mine well there was agreements well that wasn't it i disagree or honor brown mike my client moved to dismiss the entire action on august eighteenth and documents sixteen seventeen a week later and let's put aside reached that that there was a reach back into the one of four case let's assume we're talking just about the the new case but it wasn't a merits dismiss was a dismissal motion based on what taylor was trying to accomplish which is right you dropping the case against brown what we asked we asked for it we didn't get it we did have a basis for the district or the ground shifted in the litigation but this is critical without prejudice to standard remit to dismiss the action that's the only thing in the second case well it's not so that's the same thing even if though he didn't use the right terminology it may be the same thing if there is some sort of identity that we have another problem is not a knowing voluntary clear explicit unqualified statement of voluntary intent is not known when we have we have a very odd situation here that mr taylor  asking this court to adopt a rule that the parties somehow unknowingly so agree to stipulate to a dismissal an accidental did stipulated dismissal there talking past each other there's not even a on the mailbox rule it doesn't help because even if the filing was on time again he's asking to dismiss a single claim not permissible under rule forty  it's post answer so for all these reasons your honor you would ask the court to affirm that just reports correct and justified dismissal of mr taylor's failure to comply with two court orders as to the issue of whether or not rule forty one was the proper procedural vehicle to dismiss this case prior to the severance order we agree that under the berthold case the rule forty one did not authorize the parties to dismiss the case a single count because at that point the case had two claims it sounds like the southern district have to adopt a little different rules well actually i don't amended complaint maybe instead it's dismissal exactly your honor but the but but there functionally the same thing and if you read right miller and all of the cases that we mention from other circuits they say when you ask for voluntary dismissal and you don't invoke the proper rule the court should construe it as under the proper rule so the cross below should have been construed as a motion to amend the complaint to drop count three and in one case there was only one claim as your other sides of the rule applies there and then i thought i heard counsel for the first time even after the briefs dispute whether the parties actually agreed to dismiss this case i don't see anything in the brief disputing that there was an unequivocal agreement there were a lot of technical procedural arguments for why it was in the fact of but nothing to suggest that it was not an agreement and for the reasons laid out in their briefing there clearly was such an agreement case has taken under advi