season and they did file a timely number two such step in that issue which is very strong when you look at what happened in this case you'd have to look at the pioneer case and the danger predators to the opposing party there was no prejudice whatsoever to the opposing party the case of the state for ten years and all of his pure discovery management kind of order not a docket management order what i mean by that is for instance in the park national case the arguments put forth there are identical to my arguments except for the fact that for more time or something so you just didn't want it so it's true that your wife's materials are not complete before the court right now write that correct your honor and the reason that they're not complete before the court is because my case was dismissed with prejudice and i don't know what giving those documents to the court after the fact would do to try to save any kind of faith the simple fact of the matter is your honor my client was never given the opportunity  you know to to hold my client responsible for consummation of conduct or not doing something happier something was dismissed with prejudice fails to make sense to me i would point out that that you know the way this was set up is that my client's case was stayed by the court by the district court there were cases also never issue there was no answer there was no motion to dismiss and we had an order to stay in my client's individual case the re no single order issued into that case by the district court setting hey you need to pay attention to the two thousand docket entries that are going on and it's centralized m d l case and find which one is the needle in the haystack that l case where i have done everything i can to research all the rules of civil procedure where i have read the court orders i have signed up for file and service breath i have followed all of the rules of civil procedure i looked under the rules for complex procedure none of these rules that this is something that you have to do simply put there was nothing in writing that gave me as a practicing lawyer any notice of how this inside baseball of multiply district litigation has lay and so i do take responsibility for not having discovered that i needed to speak to some plainest ear in committee which i had just discovered what they were and not discovered that there was something called  to go ahead and dismissed with prejudice all of these cases i do take full responsibility this is the largest professional failure of my life and it is one that will never occur again i have never had a case dismissed i have never ignored a court order i have never done anything and simply put if there were clear cut rules in place that were understandable by an attorney who had been practicing whopper about fifty six years at this point in time i would have complied with them if the frustrating and it's it is a i've read in one of your pleadings one of the things that they said this is a lawyers nightmare that this could happen to any lawyer and that you this is something that keeps the lawyers up at night and i understand that you you have strong views on this but you've had your time yes your honor and so we need to move on to the next lawyer unless some of the other judge has a question for you and i see none so thank decades has reversed district courts that have not followed the three stringent safeguards put in place to protect from having their cases tossed out of court st there has to be a clear record of confirmations conduct or or it has to be delayed causing and rd dismissal with prejudice the ultimate sanction has to be necessary because no lesser sanction would work a particular relevance this court has emphasi each individual case in an empty l ast be treated as an individual case now what i'd like to do is go through how this case is different each of three elements but i'm going to focus mainly on to the delay element for i don't want talk about why were requesting information for the benefit court for the court to manage the cases therefore that information was to be filed with the court p t o sixty six in contrast was not for the benefit of the court it was information that was that is in the paid a case to case was p t o sixty four in p t o sixty four did not require a filing with the court it requires something to be sent just to b p but if you look at the briefs in the paid a case specifically pages twenty five dollars twenty six cents of b p s brief in that case they said that order is in place for a specific reason what was it it was that term and whether these plaintiffs in that case had  general maritime claim under robin's dry dock and no it was asking questions to ascertain whether they were commercial fishermen or whether their property actually had physical damage to it if it didn't they had a legal defense they  and so that's why that order is very different than this type of discovery order go through briefly confirmation st safeguard and every other case the plaintiff's attorney either didn't register or simply didn't follow the court orders not once not twice but on multiple occasions this case is different the plaintiff's attorney here did sign up he simply missed one why did he miss one of the judges have asked about that oral arguments how many are there how does this happen there were literally over ten thousand e mails that would have come across mr her desk i get that if you look at the documentary from the day that mr valve yes those lawsuit was st transferred to this court which was exactly eight years ago today and then you look at the sheet for the day the p t o sixty six and you look at the number of documents filed in between there's over ten thousand documents each of those is e mailed to the to the parks now judge said well you don't look at everyone the same way you're looking for orders no doubt about it no doubt about it but this is like the case of the lawyer back when i was a young lawyer who's getting a whole bunch of letters on their desk and they just miss  unfortunately is the most critical one it's one from a court but he sure did his mistake he begged for forgiveness when he responded to the show cause order additionally the conduct here was not  national is very different as was said earlier park nationalism or that was sending the cases to mediation mr hicks stood up in front of this court in that case and said this is going to cause a delay why because st of all the information was for the mediator and the court the court took that information to mr x to explain this and then craft a p p o sixty seven from that information and then sent him to mediation and that by copies of their medical records and a medical release that would be very easy for us to do for reinstated in the case in fact i've already but i'm already working on that hoping that will be important so we can comply with that spouse couldn't the court and because the lawyer knew that before that deadline the october deadline couldn't the coop the lawyer have filed something in the interim saying i'm waiting on this other thing for my client in seven i mean i don't know that we knew that outset part national scale you're not saying we the judges didn't know and say when you fail to comply you don't know what the judge is trying to do you just know this is a massive case so i mean state now you can look back but i'm not sure that was the arguments may be part of national sound a whole lot like the arguments made here whether similar but there are some important differences the differences between that order says this is for the a delay but in there there was one thousand five hundred and ten plaintiffs more important than the number was the fact that they never filed that information in response to the various opportunities that you noted in the opinion  rahm case also found that that eight hundred dollars lindsey plaintiffs who didn't respond that they would delay the case but their districts argued that's more than doubles the number plaintiffs who are going to be in the case this is a very different it's only three there they had filed something in response to the court's order dismissing the case filing these lawsuits here we responded to the show cost so i think we're similar to them in that regard the last case on  they're there at three hundred and thirty seven dollars fishermen and if you look at the briefs in that case you'll see that those three hundred and thirty seven dollars mexican fishermen never responded to the court order never provided the immigration court wanted that's the critical difference no quickly that the lay must be purposeful intentional there's no evidence of that here and finally how long is the lay have to be this court in milan opinion said it has to be quote significant and the court gave a little formula for that it has to be more than a few months more than a few months that takes me to my rd safeguard i could address that i think in a minute or less but it's of that the course pleasure as to why this is different than graham where the court said a warning isn't enough here there's a sanction of what i call warning plus may explain the warning plus your honor yes warning plus would constitute five things anyone who's ever seen a federal judge to out somebody knows that could be a very real sanction number two defense feet award the fees not just for preparing the response but the time for b p in the the hearing and then rd and most importantly the report the order should be conditional it should be conditional on the lawyer having to provide his client a copy the transcript showing him exactly what happened and say you won't have to meet the standard again we agree judge we don't have to comply with that standard again of the three safeguards thank you your honor thank you mr hicks thank you your honor  no even if you complied with the show cause the saying it was all the lawyers fault and here's the information it didn't matter if that's the show cause itself where that was lawyer error here didn't individual case and there's a reason for that show cause order which is one of the most serious orders that a court can issue is intended for the party to give an explanation to the court or its noncompliance and there's no dispute here that they didn't provide that and judge barbie a noted that in his to just say that these associates had been three and a half months late he noted that these particular plaint did not file their show cause order with the court and so how on you know it's not surprising that he dismissed them with prejudice you know very little issue with sending it to the opposing counsel accept that they didn't comply with the show cause order i not actually giving their response to show cause order to the district court and i'm not aware of any case where this court has simply overlooked noncompliance with the the whole point being that you were to give an explanation to the court in this in just sixty five the national play just made the exact same argument that they inadvertently fails to if the show cause response to the court court didn't accept it but even if you look ask that and you accept that it is somehow compliant with the show cause order simply by serving on opposing counsel and frankly i think that if i were ever subject to a show cause order by a court and i only served on opposing counsel but didn't actually if my explanation to the court certainly i don't think i would have complied with the order and i think the court would be justified in dismissing my case because it never got my explanation but even if you don't agree with that that just put these planes just in the same position as the destined plaintiffs in the p t o sixty five decision destined plaintiffs also didn't comply with the st order it's you know sixty five and then a they say you know it comply with the show cause or which we don't think happened here but the court still didn't except that there noncompliance was for the sort of good faith mistake that was made in the three places here did nothing number three if the able to play exists only partially comply with p t o sixty three because they got bad advice on the plane to steering committee here we have nothing like that they did not  and the show cause orders were never actually filed with the court until about five months after the show cause order from judge so even if you want to overlook the noncompliance with judge barbie a show c legal significance to it but there on the very same page it is reading they say willful disobedience requires noncompliance on multiple occasions and again i don't see how not actually giving a show cause response to a court that asked for the explanation for why you didn't comply with the previous order doesn't constitute noncompliance that's the whole point of a show cause order and it isn't like compliance that i mean not to beat the horse because he they did get it several months later when they i don't think finally in your response to a show cause order three and a half months after it just your court orders a response is really you know in any way complying in any sense and now they're actually to have the hope was that after they became aware that it had not been properly filed on the docket that they corrected the mistake i believe that i don't think the record shows when they became aware of the fact that they didn't actually file can i ask you a question do you believe that we have established kind of a separate precedent in our e p cases that doesn't require lesser sanctions that is kind of we have a separate track for all these because we're recognizing this grand m t l of gansu in size as you pointed out or do you believe that we are requiring lesser sanctions till and if so what were the lesser sanctions that were i posed in this case your honor i don't think that you've sort of excised the lesser sanctions requirements but i think that this court has repeatedly in ram p t o sixty five decision as said that no lesser sanctions would suffice even the complexity and given the delay in efforts by judge r t a to process and prosecute these claims and not just for b p spend it but for the benefit of in these cases that may be the case and we may have and we have to follow our case law so i'm just trying to figure that out sure well i agree that you do have to follow your case law and your case law in these types of appeals out of the deep water horizon and y to move toward resolution and i would not have been a good enough reason in any other rand regular case well i i i agreed that n t l us are different than any old regular case with one plaintiff and that's what this court has said over and over and that's up that's what this court has said over and rule on the lesser sanction is not that you have to have a lesser sanction in every case or rather that you have to have a lesser sanction if that would be adequate so the question always is whether the lesser same person is adequate  well that's that was the issue in part national that i think maybe mr brown's marie quoted me as asking the question about well what is a lesser sanction that would be adequate in the park national and the lawyers didn't really why in this case a lesser sanction would not be as sure well i would st of all point out that this court has consistently said that a order to show cause is a lesser sanction and that's what happened here there was an order to show in these dismissals with prejudice and so you know he's being told by this court you know what he needs to consider as lesser sanctions and this court has consistently said that things like another warning or  you couldn't find the lawyers but it was on the table in the court was thinking about it when it decided there was no lesser sanction but also a warning that's what a show cause order is and you know a fine to the attorneys progression of these cases and i think you just have to look in this case so it basically says they can gauge baria they hold a hearing to shout at the attorneys more of a sanction on tell faria you that has to take that kind of time when he's got hundreds of hundreds of things going on in this very case well that's absolutely right to change but that also goes for everything else he has to do when plaintiffs don't comply with these orders he has to entertain dozens if not scores of pleadings from not from admittedly not compliant lenses then he has to entertain dozens if not meetings to hit responses to his show cause or when of course they're actually filed with him which they weren't here then he has to deal with motion for reconsideration and he has to deal with  nd and rd motions for reconsideration here all because we just simply won't comply with what are very clear unambiguous orders and to be very candid you know i think there's a little bit of just not implausibility but maybe even suggest that after repeatedly failing to comply with judge r b s orders g t o sixty six and it very clear show cause order that said like all show cause orders that the response and your explanation needs to said in many of these appeals with the a discretion that is given to and deal judge in general much less this particular epic and gargantuan and yell and i think that this means really is on we think that his disappear is situation is foreclosed by your decision in the maysan case which he essentially ignores and tries to distinguish on the grounds that they were supposedly inadequate briefing but if you go back and sole grounds on which he distinguishes mason is that supposedly the parties in that case hadn't adequately briefed the issues that apply here number one i don't you know even on its face i don't think that's a basis for distinguishing a published extensive decision but number two if you go back and look at the mesa decision that footnote that he's referring to is addressing a different a different aspect a different issue it's not addressing the particular issues here which we think forecloses claim number one that there was adequate notice and that number two is to claim that was filed five months after the opt out deadline does not constitute an implicit opt out so in the under the notice factor the court said in mason it noted that the notice of the economic the medical settlement had already been upheld as sufficient under rule twenty sufficient and then if you move to the question of the complaints being an opt out then you have the situation where this court said in mason that anything filed after the opt out deadline we just don't even consider when it when it comes to the matter of determining whether it was an implicit opt out and the reason for that is certainly just as applicable here as it was in mason which is that judge r b a who is again tens of thousands hundreds of thousands of cases shouldn't have to divine from a single complaint that someone was actually trying to opt out and so for those reasons we think that  order to support a dismissal with grudges does not obtain an m dale not at all your honor that they're there ken if i understand your question correctly you still have to show if you're looking at dismissal dismissed with prejudice and i want to just put it in it that we think that the only order that can be reviewed here is the order denying reconsideration because there was no argument made to the court before the actual dismissal but if you this particular m t l is that if you're looking at dismissal if you're looking at an order dismissing with precious again we don't even think you get to that here but if you are and there has to be it record of delay or  sixty five because there was noncompliance with the st p t o sixty six and it in adequate reason for that just as the part just as in the distant places but we think that the park as it was that doesn't involve impertinence or whatever that you were talking about earlier it doesn't require something intentional or unwillingness to comply it can be accidental and that can be consummation is that your position i am adopting the conduct and the court didn't look at what the reasons were against judgements pointed out these arguments were all made in p t s sixty five but again even if you don't accept that you'd somehow distinguish this from p t o sixty five these plaintiffs are in the position  destine claims as who are also found to have committed a record of consummation simply by disregarding the st p t o as here and then not hat and then not having the sort of good faith mistake that was made in grant were trying to get back into a settlement where out of state for ten years there is no prejudice to anyone who can't bring it up before i brought it up in the mason case of the said all kind of people can get it when they can't get in it's nine hundred and twenty five people now that was a mistake by the court they did not serve the responses until october th but it goes to show it was going on here it was the attorney's own fault it doesn't matter if they missed it by seventy five dollars days or one hundred and twenty d r objections but they never said they were inadequate they have the information in and lay the park national case is different because of the order itself ordering the mediation for the court that's for the benefit of court and there they did not register we did register nd on sanctions this idea of this hearing in front of the butt of the judge judge haynes asked about that that's not my idea that's judge bar b s idea he has done that in p sixty eight and all i'm saying is that was a really good idea that's a really good idea for a way to sanction somebody now i went through her release let me say it just quickly one more time the rd condition is a condition fracture so you can have a condition to reinstatement and that condition here would be that there's a warning but the warning says explicitly you agree i don't have to comply with those three dismissal standards in the future you miss another deadline you're out that's three strikes you're out we don't have to do anything further the last point on sanctions is this is there for more than just a warning ten seconds hopefully on this is different even though it's an embryo the court said engram special deference yet yet yet you still have to follow these three standards because this  in response to an order b p s unforgiving break new ground approach the focus is only on whether it's new finds no basis in the law and what great a conflict in the circuit we request that you hold nusual format in thank you thank you for your arguments today counsel thank you