important my client the issue being whether or not the district court abused its discretion in granting a motion a post judgment motion three journeys b s which was filed ninety nine days beyond the time which rule fifty four and local rule of this i gather that you do not contest their right to attorneys fees under the contract if if those if the if properly presented are the amount is that right we did not challenge the reasonableness of the amount that's the only thing we didn't challenge you know do you think that they had a right to attorneys under the contract the contract had a provision which allowed it had a prevailing party attorneys fees provision yes it did and in your judgment how should they have proceeded in terms of enforcing a provision are seeking relief under that provision rule fifty four in both the federal rule of civil procedure fifty four as well as the local rule is very clear on that under fifty forty two claims for attorneys fees related nontaxable expenses shall be made by motion unless that's the only unless in that whole rule it doesn't matter whether the the right to fees are a statutory provision or in the that a certain  gather the settlement agreement did not address that's true and so i think the sudden one agreement did not address the sudden one of this particular provision of the suit the settlement agreement in the earlier suit which gave rise to the confidentiality agreement that was the issue in this if you didn't really apply but that's that's really a frivolous argument because fifty four gives an exception and that exception is if the right to attorney's fees is a substantive claim for damages in the underlying cause of action and there's numerous examples of that one would be in the data a slander of pinal claim if you expended attorney speech to clear your title that is an actual element of damages which you can seek and then that is the way you you prove your rule with before well i don't i it may have been had they brought that counterclaim but they didn't bring a counterclaim we brought a claim they're seeking peace at the end of the case after a summary judgment dismissing our claims is brought then and only then did goose is good for the gander they have to play by the rule the rule says fourteen days they brought it ninety nine days later and they didn't they still don't even in their appellate grief do not try to argue that there was any excusable neglect they said no no we don't even bring it under inexcusable neglect six in this reply to shore up its failure to provide the attorneys affidavit it makes no effort at all to provide the information required by local rule fifty four sixteen the three which is the a that you have to quote certain information in the attorney's affidavit and then the judge goes on to say no excuse this is offered by alice for the tardiness of the motion or failure to comply with the local rule so under this court's own precedence in the allow some consideration of the reason for their untimely for no because they should have either in their reply brief sought what would amount to a rule sticks be in under rule fifty four as it should have been now i gather that part of the initial jurisdiction arose because a bankruptcy is that writers or not it was just diversity just a personally ok oh absolutely we tried to sell you did you respond to our circuit mediators we had a conference call with the circuit mediators office and it would be a well i don't know if it's appropriate to discuss what i  proceed with the circuit mediator in counsel and i both conferred with each other and our respective clients in attempting to resolve this before we got here and i gather that you feel that based on your experiences although i'm sure  question is do you think so my client made what i believe was a very reasonable offer to settle this matter before hand and my client i'm sure would be willing to make another reasonable offer at this point it is my personal opinion appearance thank you very much of a magnificent courtroom curtis culture on behalf of mr ellis and ellis engineering your honors the issues i think you for this body pertain to whether the district court exercised just your discretion in granting attorneys to use in this case we're going to deal with rule fifty four but a couple of things that i think are very important here is first of all i think that the discretion of the district court was well both by rule local rule one a one dash three and also by pioneer versus brunswick five zero seven us three eighty this is a case in which you've asked a question about follow up litigation this is a very similar situation to a situation in which there's been a claim for abuse of process that claim isn't mature intel after the underlying litigation is resolved successfully for the person who brings that claim in recognizes that the request for fees was made to avoid duplicative litigation and i get i think that goes back to the very premise of pioneer i think we look at the equitable constable pioneer equable principles that for the rule won and the local rule one don't mean anything if they get in the way of doing justice and expediency you know i certainly agree with that but in this election what we had was we had a shadow case that was going to be coming right on up in another case we filed the court took a look at it the court was familiar with the inclined to earth on it at least appropriate to consider extending the time limits then i think our case when i suggest the district court shouldn't balance all of the factors that are appropriate to make you have to determination here and only and the manner in which this request was made to the district court was try to eliminate future litigation and i decided to stand at the district court sort of took a practical approach to this and gainey didn't think there was prejudice the equities discuss this something can argue nine is that the prejudice factor really sort of meaningless because if you say no one's prejudiced because you know except for the prejudice if you say the prejudice of having to pay is not prejudice enough it's hard to conceive of where there would be prejudice there's no in cases like this we're just talking about i mean that you don't lose witnesses you don't mean though that's a typical kinds of thing you look at