if the panel would the court would prefer that i wait until rebuttal time to address our opponents cross appeal i be glad to do so there was a be prepared to answer any questions at any time or lorien with the court feel and whether costs can be a war and whether a district court can dismiss the case for failure to pay the costs we do acknowledge your honor that cook in does control those two issues we raise ask you another question before we proceed in that is did you anywhere appeal if you will the dismissal of the case for failure to pay the attorney's fees we have appeal from the entire judgment of the district court and that includes the court's order issued in december of two thousand and fifteen that explicitly dismissed th essentially challenge the entire district quick judgment well that's one thing the one thing that i want to make clear because it seemed to me there's no question you're addressing the attorneys fees yes whether attorneys fees is a part of the costs under forty one b but i wasn't quite as certain that you would addressed whether the court could dismiss the case or if you know a year to pay we  and controls whether they can dismiss the case but if in fact the court was wrong in awarding attorneys fees it is if not explicit in our briefing it is implicit that that because we believe that when i look forward because that seems to me to be a pretty important issue if i suggest that i agree with you that attorney's fees is not a part across seems to me the ultimate issue is could the court of dismissed the case anyway and in our view your honor is that that the  order to pay attorneys is not authorized or so even if i or my client did not pay the fees did not there wasn't any order to pay attorney fees was ordered to pay costs that is certainly authorize that attorney's fees is not a part of costs that's correct john so it's where what we're saying essentially that my client at least for purposes of today's proceedings is representing that it is prepared to take cos it earlier had challenge the authority of the district court to where both fees and costs and for purposes of the bill today we are knowledge ing that cos you know particularly under her code being could be awarded but we are challenging the attorneys fees portion of that and we you get into attorney's fees but we may get into this just because there's no question but the opposition across appealed that issue they cross appeal the forty one a one b issue your honor i don't  briefing the term cost is a term of art that is long referred to expenses other than attorney's fees it brings us to one of the other considerations that we reason that is that attorneys fees are referred to more than twenty times in the federal rules of civil procedure so congress in all use congress is short in for the rules making process has used attorneys fees continuously a nd certainly sees fit to mention that term whatever it intends for those to be available as you would you would agree with me that this is certainly a circuit split on what we do in this particular matter that's correct your honor and you would agree that esposito from the seventh circuit would say where you wouldn't include the fees unless the underlying statute provided for the is that fees are not proper ward and he says there's no underlying statute because the underlying statute that the district would identify in this case fifteen u s c eleven seventeen a part of the lanham act provides only for attorneys fees to be awarded to prevailing parties in exceptional cases claims in this case your honor whether is in the first action the second action of the third actions were never adjudicated on the merits merits so there was there was never a determination that the planets were prevailing parties or i should say our opponents were revealing the judge in this case have the ability to determine whether you were the prevailing party or w the judge in theory could do that your honor but the district court did not do that in this case the district court simply identified section of levon seventeen a as being the the trigger under the rule for attorney's fees availability under rule forty one jestingly i didn't find the there was a prevailing party simply because it wasn't sad or i mean by all implication they would suggest that your opponent was the prevailing party that's why they allowed them cos but my view your honor is that the district court's order is is less than crystal lean and anything i i hear what you're saying but it seems a little unusual that when the defendant asks for the cost pursuant to forty one d and you go to forty one b and you find that the plaintiff dismissed the action prior to that then at that point the court may award the coffs it seems as if the cargo was the prevailing party and therefore they get the costs even if that were so your honor there was never a specific finding by the district court that the even if eleven seventeen a were an appropriate statute and we contest that because merrick the chesty specifically said specifically held that congress had to set forth  in a triggering statute that costs were explicitly recoverable you know then we're left with the six circuit which you adopt yes roger says attorneys fees are a part of costs and really doesn't talk about the underlying statute it actually did your honor it did address the fair labor standards act claim in that case and to determine that the defendant this court should adopt something akin to what the sixth circuit held in rogers but if not even an arrest was ito even under engineers there wasn't sufficient analysis by the district court to determine whether our opponents were prevailing parties under the section eleven seventeen a you know which requires an exceptional circumstances that simply being a prevailing party is not enough i would briefly like to  address before i reserve some time for buttle the suggestion that the district court separately found that attorney inherent authority sanctions were political the district court limited fank and the district court under rule way express supreme court's opinion would be required to give notice an opportunity for my client to be heard on that subject it's our view that even though they just report may hold very strong feelings about this case evidence but that footnote did not go through the proper procedures to impose those types of sanctions are we really talking then when you're talking about this particular issue we're talking about the dismissal itself because there's no question they could impose the costs are you talking about as to this issue whether they can dismiss because that's the ultimate sanction that there wasn't enough notice there was not enough if you will billet to make this inherent decision it the district court raise inherent authority sanctions for the purpose of determining whether fees would be awarded it did may please the court might stand shite and i prefer that the defendants in this case we have in this case is really a compelling combination of several things all of which support the order of the district court we had in essence an undisputed factual record as to the series of lawsuits that were filed and the events that occurred in each one we had detailed findings of fact by the district court that are set forth across eight to ten pages of the september fifteen order they were later supplemented by two additional pages in the december fifteen order she specifically found and specifically vexatious she used that word twice in each order she found plaintiff's conduct to be harassing she used that word once in each order she found that point just conduct was motivated by an improper purpose she specifically said it was a misguided effort to obtain a do over for you arguing for the affirmative thank sions of the attorney management she did particularly your honour's if where is that right be fair i don't know that she did that i would say on about three levels but tell us the most specific level where she analyze the the award of fees under the lanham act she referenced the exceptional case standard and then she specifically said referencing back party so where is that analysis in her if you look at the recent case of octane fitness which was adopted by the ninth circuit in sun earth on bonk we submitted a rule twenty eight letter with regard to that in that octane fitness case they adopted a definition of exceptional cases was in two thousand and fourteen so it was in effect at the time they said the court makes an equitable case by case just discretionary decision as to whether there was a weakness in the substantive merits of the case or it was litigated in an unreasonable manner and that it said the courts can apply a non exclusive list of factors from the fogarty versus fantasy in case two of those factors are would wording fees advance considerations of deterrence and compensation paragraph she added a footnote at the in the paragraph and then down the footnote she said the court specifically finds she used the words finds that plaintiff's conduct warranted fee's under the inherent power of the court law where is that specifically in the record and what opponents excerpts of record page four sixty two so all of that that you just articulated is on page four sixty two record and with regard to bad faith conduct under the inher power one of the other things that the supreme court said in octane fitness which the ninth circuit adopted in sun earth they said that the exceptional case standard is a lower benchmark than bad faith conduct talk to you a little bit if in fact a court has inherent power to impose attorneys fees in the case why is it that we should suggest that rule forty one includes attorneys fees to parse the answer i think if you look at chambers versus nasco i've looked at chambers i'm still going to ask you the same question right if you're going to give the court the inherent power to impose these attorneys fees in any case where the party acts for an improper purpose which is the inherent power then why would forty one be also include attorneys fees because there's nothing in forty one d that says attorneys fees there's nothing in forty one d that even gets to attorneys fees and if i look at the only place for denise fees has been suggested to be a part of costs it's the offer of judgment and that's not really the same as the costs under forty one d and so i'm trying to get you to answer me that but then the next question is if they're going to do it out of the i reply brief there are about four pages where we raise the issue of the inherent power of the court in fact in the heading in which we has for an award of fees we said fee should be awarded pursuant to rule forty one d and the inherent power of the court do they need to do they need a hearing when they do that now it can be done on motion this was a motion there was proper notice of the my understanding you do it on motion do they need a hearing the way  the i don't believe they do and like you say the court can raise that there any is there any case that suggests one should impose inherent authority attorneys fees as a sanction without a hearing i'm not aware of any case that absolutely requires a hearing there are procedures in judge bench of thankless courtroom for requesting a hearing and so the burden was on them to follow her procedures to request an evidentiary hearing or to request oral argument they chose not to do so they chose to rest on their briefs that they waived whatever right to a hearing that they had back to the original question as simply if you can impose these attorneys fees pursuant to your inherent power as a chord then why would i suggest that forty one the attorneys fees in that each stands independently each stands on their own we would argue that inherent power alone warrants fees that's what the court said i understand you're going for a different theory ok i'm back to forty one so forty one t the central issue they've raised basically the central cornerstone of their appeal is  circuit which said that well frankly that they say that we should follow the six circuit they give many good examples of why i mean costs are costs and if i end held by several courts including escovedo including the supreme court to have different meanings in different rules i understand but we're in forty one now we're in forty one d the purposes of rule forty one d or to deter  virtually the same as the inherent power standard if you look at the dictionary definitions if you look at the u s supreme court case of tanna gucci versus can pacific side they said that the words costs and forty one t i mean there are many ways where we give sanctions for what we consider to be less than appropriate conduct take discovery for instance when i go into discovery i know what i've got because they're in the discovery rules that tells me what i have if i go to an offer of judgment there it seems obvious that in an offer of judgment if you're going to give all of the costs you've got to give all the attorneys fees because they have been extended at that point and that's what the supreme court said it says in the context absolute but in this particular instance i'm having a tough time understanding why in this context it's always attorneys fees well aside from the fact that the majority of the courts have recognized that it was already of the courts what's the majority there would be six circuit courts within four circuits it would be thirty one district courts within fourteen states by our logic but i'm just saying to you the fact th t my sister circuits do it or don't do it is not the majority i've got to choose now between two circuits one copying the other so you have two groups of circuits one that says you're allowed she actually mean there are two parts to section eleven seventeen a the first sentence deals with a separate circumstance it's the last sentence of eleven seventeen a and it uses the word attorneys attorney fees well the courts have said that that word attorney fees includes attorney fees and costs so there are several if the statute separately discusses costs and attorneys fees wealth effect of that  there are some courts and say they say that that makes a difference but in this case that's not the way the statute reads again you have the first sentence that addresses a different class of litigants it's a when a registrar has been had their trademark registration let me to the language that you're talking about that i see the last sentence if the court in exceptional cases may award reasonable tourney fees to the prevailing party but now what are you talking about the cost is different i don't understand what you're saying the first sentence of eleven seventeen right that deals with just registrars and their ability to recover various types of damages and it lists cost line and there are three sentences after that that describe well why why why does that make a difference because to me costs and attorneys fees are discussed separately in the statute which is an implication in my mind that cost does not encompass attorney's fees for purposes of this statute in the last sentence which is the sentence we're dealing with we're not dealing with the first such you have to look at the whole statue we have to look at the whole statute to determine if are if you look at the cases they talk about how it within eleven seventeen a you really even though it's one per one letter there are two separate fee or cost provisions in there the sentence that we're provision relates to that first sentence which is the separate attorney fees provision there is no there there is no reference to costs in that last sentence exactly and that's what the courts have said is that word fees in that last sentence pursuant to that you can recover fees and costs pursuant to the word fees i mean otherwise the prevailing defendant could never recover taxable cos i mean asking the other question which is a little bit different supposing i disagree with you and i suggest that tourney fees under forty one d are not recoverable and i suggest that under the inherent power of the court there was not enough notice to allow the attorneys fees to be given and i then say ok there are no attorney's fees so therefore with no attorney's  i understand it the plaintive could not appeal this judgement or this decision until the end of the case it's not automatically appealable it's not a fifty fifty four b permission then at that point if i get to the end and i assess i suggest that attorney's fees are not recoverable under forty one be forty one day then should i uphold the dismissal yes you should why because fees were awarded for all pursue these are not feed costs are appropriately awarded get up to talk to me about whether we should have even had cause or fees or anything until we get to the final result and then this the judge imposes the judgment and dismisses the case if the reason for which the court imposes the judgment is wrong then why should the dismissal be upheld but if if this court were to find that the court was wrong as to rule forty one  that sir under that hypothetical which obviously i don't agree with but i didn't expect to find under that hypothetical yeah the only other grounds for dismissal are the grounds that they haven't appealed and that is that the court ordered them to have new counsel enter an appearance by december fourteenth did you ever ask that the case be which you could have under forty one d that the case be stayed until the fees were paid we did ask for that and the court did  as the court stayed the case until the court granted the award fees stayed the case for ninety days gave them ninety days to pay and gave them until that same deadline to have new counsel enter an appearance they didn't pay the fees and you counsel dinner didn't enter an appearance by december fourteenth she cited both of those violations they have an appeal that issue at all i understand but the question that i had then i mean my worry is that there is no way for your opponent to have appealed of this decision on attorney's fees and until they wait to the day because they couldn't get up here before today after the judgment was entered and would agree although they would have had the right perhaps to seek a rule fifty four b certification and take it up on a well i don't know where they got the fifty four b because here we did add the judge saying fees were going to be awarded some day but they didn't know when and then all of a sudden the judge says well you're going to pay them now if you don't pay them now then it's going to be dismissed and then they appeal now well i'm just trying to give them that i'm trying to get you to tell me how do i back out of that and still give you the dismissal if i don't agree with you but like i say there's the other grounds for dismissal based on the attorney i mean if the court were to disagree and say that no fee should have been awarded under any of the three authorities and by the way i'm not aware of any case law that's ever overturned on award a feast based on a combination of rule forty one  underlying statute and bad say it's all of them it's none of them aplomb well thought the court would have to adopt the narrow view of the six circuit yes it would have to ignore the court's lanham act paragraph and the findings that were in that parallels mine is not sufficient but this they'd be ignored if they're not sufficient the court would have to ignore the undisputed conduct and the findings that were page four sixty two of the e r you said that when judge smith ask you would notice was given to the other party that sanctions were going to be sought under the inherent authority you said that no this was given by your  but in the footnote the court said in addition although defendants did not make such an argument the court finds that plaintiffs conduct a tangent tactics warrant payment under the course inherent powers of the court did not i don't know if that's entirely clear but i think i have knowledge that that lead in phrases in that footnote but then she said she specifically finds that the conduct and tactics i mean there's no doubt as to the conduct and tactics that we she was referring to because she  described them in the ten pages well well the thing that i think you're doing i mean we're not trying to suggest that the conduct that the that the plaintiffs used here is appropriate nobody's suggesting that even in our questions all we're trying to do is we're trying to see if there isn't a method by which you get these fees and when we look at inherent power we look at what they ought to do under inherent power to get there and that's what judge that's what judge rawlinson was saying to you if we there have been i mean inherent power in general we've been on the district court we know we say bad faith we say this is terrible you ought to do something about it this judge did not get there and so it makes it a little uneasy and when we look at forty one d we're saying to ourselves in general costs or costs or costs are costs there are times when attorneys fees are not are part of costs but it's within the context of the rule and in general when they want to turn ease fees to be involved in the civil rule they say it and they didn't hear so we're having you comment about that and then the last thing we're saying is we really don't think even though you're citing aleph stuff about lanham that she made the appropriate findings on lanham because we've made findings we know what finding should have been found and they weren't there that's why we're asking the questions now we're not wanting to get you to be defensive we're just wanting you to be able to respond to these problems that we see in your argument that's all we're doing right and i would say she did make findings in the eight or ten pages of the order where she made fine exist to what occurred in the lower court she specifically called it a tax aisha's you specifically cited the bad faith or conduct can amount to bad faith standard in the footnote and she said pursuant to that standard that warrants the imposition of forty one to two and i'll give you the exact language from my brief consequently that would suggest the district court could not go further by dismissing the action altogether much less with prejudice for noncompliance that is not paying the fees not paying the cost nevertheless we acknowledge  could be in governance we have preserve that argument nevertheless so i think that i hope that modifies your concerns regarding the scope of what we've actually frankly i doubt to read that phrase again i looked all over to try to find your if you would excrete argument or you're more than just a word argument about this issue and i had i had a tough time so i didn't know out of quite good at it so i wanted you to speak to not dismiss the case alternatively for failure retained counsel dismissed the case based on that earlier order which was failure to pay costs and fees i notice my time has expired i have i have certainly your honor i a question for case that costs under forty one under sixty rule sixty eight includes attorney fees when the underlying statute in the case defines attorney's fees as part of the cost so  discussing real six yeah eight we took a similar approach to that at the second circuit takes to rue forty one you know if i represent to you that that's what we've done with that be an argument toward taking the seventh circuit approach eleven seventeen eight is not specifically mentioned that cos the predicate would say that our approach that that language in that statute would militate tort us adopting the seventh circuit approach adopting the second circuit approach i think it might your honor of course as i've mentioned i would i would welcome any opportunity to submit something in a briefing if you think it's appropriate but i think even as i've mentioned even if you were to drop the approach is that the seven circuit context it says i'll go to the line six of that page and say it's two levin seventeen and says providing an award of attorney's fees in exceptional cases and then later on it talks about she she discusses because awarding fees furthers the purpose of rule forty one to discuss vexatious but again and then she she mentioned generally that these sorts of fees were were requested under the rawlinson that need to happen as a predicate for finding that attorneys fees have been awarded for reasoning that attorneys fees awards are are sufficient are appropriate and giving this