the request refused in this case was over one hundred thousand dollars in an uncontested case one can only wonder what the fee requests be if there had been any proceedings acquired this level of litigation  this sort of puts on the horns of a dilemma if it takes the amount of time requested to litigate an uncontested case then does that support a higher rate of attorney fees hourly rate for experience and ability that are requested by respondents in this case i mean if if you are experienced and knowledgeable enough to request at the partner level in st louis major law firms should it take you thirty five hours to respond to a simple motion to dismiss or one hundred hours for a summary judgment on an uncontested petition should you litigate for two years after default just to get a resolution of the case is replete with excess sixteen hours and extensions of time that were granted just to prepare a simple attorney fee and contemporary and contemporaneously recorded time entries when congress put reasonable in front of attorney fees the f t c p a a as even hensley would indicate that must mean something myself they're supposed to be the same the purpose of the fee shifting is to allow people who otherwise might lack access to the courts the opportunity to present their claims here we're talking  but and certainly the plaintiff deserves access the question is if this is what is required to litigate such a simple claim and there isn't a case that t getting my it's easy to get mired in all the details of this entry or that entry or what have you but we're talking here two hundred and fifty plus hours to litigate to statutory damages claim under the f t c p a and that includes almost thirty hours just to say what the damages were that includes  hundred hours on summary judgment that includes seventeen hours spent in another letter bankruptcy math and that includes all of the discovery time and so forth  after the fault in the initial petition now i had indicated that they should have filed a notice of default that was a mistake but because there was a motion to dismiss file and so that wasn't available remedy but a motion for judgment on the pleadings was available remedy and since they had already prevailed on the motion to dismiss in fact in almost an entire week of devoted attorney time to respond to a simple where the underlying debtor took his claim and the debt into bankruptcy shepherded the claim through the bankruptcy so that there's no debt and just t claim for damages and with all due respect to judge limbaugh and that respect is due i think that what we have here is having lost the forest for the tree the th circuit looked at a similar demand of one hundred and thirty thousand dollars for a claim that was fully litigated and rejected all attorney fees because the amount was excessive we're not asking for a zero attorney  it after the holiday and and then there's ten additional days before the notice of appeal is what was the reason for that the way well all i know from my perspective was when i was informed the i was not you know there was some time where i wasn't present i'm not sure for the entire ten days judge and i don't want to guess and be you know misleading i know that when as we sit here judge i don't want to make something up and i believe i've exceeded my time so most of the other question i'd like to say a rebuttal thank you all made please court your honor as i'd like to begin by addressing the late notice of appeal filed by appellants which is the subject of a police direct appeal the controlling case on th and in that case this court had occasion to lament the failure of the briefing to address the pioneer factors or even discuss the pioneer standard at all in their motion to the district court appellant do not mention either case however appellee respectfully submit to this court that appellant's could not and did not adequately justify the district court's decision to grant we for a late appeal without ever having discussed any of the four pioneer necessary support to you when the argument comes up on appeal moreover lowry states that the reason for missing the filing deadline is the key to the analysis in there were played brief appellants don't discuss the reason at all the blame should know like on the original motion or otherwise attempts to explain or justify why the district court granted leave or we have is that original motion and the reasons they're in are insufficient as a matter of law the explanation given to the district court was that the attorney for the vogler defendant sent an e mail to the attorney for the other defendant mr reynolds and then drop the matter entirely until the deadline lapsed where we see that all the record show that the didn't get there is your honor pointed out in a way really of no moment because it's hard to fathom an attorney who doesn't use any alternate means of communication or have any other backup plan in place to not miss this most critical of deadlines as the deadline approaches apparently there was just no sense of urgency at all which unfortunately was consistent with the way that the litigation was conducted in this matter we don't have the email in the record that's why we can't find it in the record it was never submitted to the district court but what i just heard a moment to go is expression the word pointing out the declaration says that counsel sent a complete and final notice of appeal asking reynolds to file it already is counsel to file it a moment ago we just heard now he says he had to prepare one this is part of the problem of having a declaration instead of an affidavit or some other kind of statement under oath that we can all rely on and refer to if for example as in this case we have an issue on appeal whether it was timely filed over muttley though it still doesn't make any sense to me at leas appellee because if reynolds had already agreed to file the j notice of appeal that bullish counsel could have just done it you know avoid the problem and if reynolds doesn't know the appeals coming hasn't agreed to it hasn't had the authority then why are you sending it to him and resting on him to be the one to file your notice of appeal even still maybe a one off one time mistake from an otherwise diligent counsel made maybe it's overlooked in this case rogers but unfortunately that's not situation here we have a litany of missed deadlines and i'm not going to go through them all again but let's there was any doubt there was more missed deadlines to this  briefing process as your honour's may or may not be aware alternately as this court has commented at some point the excuses are so thin as to leave the lapse not only an excused but inexplicable but even if i said all of that asi the matter as to reynolds in particular is even more problematic for them because as we pointed out in the briefing they didn't get the email so what's their excuse either they thought both bush attorneys would handle it which apparently they didn't based on both their words now and the declaration which as we prepped it incented you to file what they thought they were supposed to handle it on behalf of their client in which case they let the deadline lapse on their own no explanation given no declaration that addresses it no you know no record no e mail record is totally fine i would so in that sense we have garden variety in attention and that's not enough for excusable neglect the abuse of discretion here then is a faction the record do not support a finding of excuse going to go act and the law that requires examination of the pioneer factors was ultimately ignored and by the way to hold otherwise your honour's is going to potentially open the floodgates to all manner of similar flimsy excuses draft that was forgot the file of the paralegal didn't get to an e mail that went to a interesting question and i'm not entirely sure except to say that the result would be the same whether you would have jurisdiction i'm not sure in all honesty are however all rich request is to we would waive it even if you had  this court's decisions have to still be deferred to the district court finding on fees which makes sense given that the standard is abuse of discretion that's our standard of review what is an abuse of discretion failing to consider factors giving gets too high but i never identified a specific number of hours that they dispute other than the seventeen point three which the court did reduce as i and more nor did they ever give us a number of hours they believe accurately captures the reasonable  in this case it was a problem with the district court and it remains a problem throughout the briefing of this appeal in fact this court recently just in august of this year had occasion to issue a decision with a very similar set of facts namely the children's st box associates case where the court concluded that fox associates had provided no evidence that the district court abused its discretion in failing to exclude more hours indeed fox had not even indicated how many hours  uncontested it's curious after a lengthy motion to dismiss they then we felt we determined they were not in default the fault is when you have failed to answer or otherwise five defend yourself that's will fifty five dollars they did defend place correctly because we wanted to end this on the merits and then they filed a standing challenge months later they file a standing challenge that we had to address so it's no wonder that our reply briefing took up many many hours it's curious to now call it a contested when they the court calls it half in half out and having to respond to a a motion to dismiss requests just to go through each and every one of the many violations that occurred here which we did ultimately they're trying to use two thousand and twenty hindsight in order to change the result that they don't agree with but none of that st of all the two thousand and twenty hindsight is not the appropriate standard when you look at whether the reasonable attorney would have taken those steps at the time of the when the time was being expended given the options available we they would have moreover we know they disagree but that simply doesn't rise to the level of an abuse of discretion the court consider all of the evidence and by the way the only evidence in the record was from the app ali we knew that we needed to have our affidavits which laid out the amount of time at least not just that we spent but that we've been practicing there was a misstatement in fact in the field board saying i've been practicing for five years i've been doing it consumer protection almost exclusively through two thousand and seven this has been my practice area alternately we respectfully request that this court reinstate the that i misstated that i do apologize don't want to make sure i clarified that so yes we did have a joint defense arrangement mr reynolds could have filed independently of that had that not been my responsibility and that's what we had argued to the district court that that that was excusable and at that time we try to do it as expeditiously as possible honestly as i stand here right now to judge i don't want to speculate as to there is no part of me that didn't want to get this done as quickly as possible so what else was going on at that