you can't rely on the fact that it will have twenty twenty vision or otherwise because we had to order some of those patents out to be able to read them so make sure that we never you do should submit a punish reason that there could be a very express and clear mandate maybe that was clear maybe it wasn't but anyway big let's assume there could be a very clear mandate isn't it certainly possible that the party or the parties could act in such a way after the rim mandate comes down to the case back in the district court that it would be not an abuse of discretion as a general proposition i know we have to look at this case not an abuse of discretion is a general proposition to dismiss for prosecute no matter what the original mandate said we don't we don't agree with that we believe that the only basis for your saying even  don't believe have control over the mandate once a mandate has been issued it is something that needs to be complied with or seen a party you're saying according to can't quote walk away from the case close quote that's correct and in issues district court has it they have to form certain functions but the party don't do anything for five years is that up to the district court to call attention to the pardons of the ensure that the mandate is it here too and in this case when the mandate resolution there were certain steps that the district court did in fact take to ensure that the mandate is  action and then mandated intimately was not not fulfilled yet but what about the second step i can and i guess i understand your argument a little with respect to the first stage of this but then when the district court goes to the parties and with something i'm going to be administrative leave dismissed as the whatever and you have to come in and give me something but i'll do it without prejudice and you don't come forward for three years how does the fact that there was an a b and were a reconstruct or whether it were ordered to stipulate as to how to proceed with the remaining issues at which point then the other party could apply to the court to reopen the case and that to be three water to produce the destruction of the mandate so what about the order issues in the night in two thousand and six and you wait thirty years and then you come in thirty years later to the district court and say i think the band is under the eleventh circuit flexible however is flexible in terms of there are three areas of it which the lower court doesn't need to necessarily do i don't think we have those exceptions in this case we're see here of the mandate was as you said to do certain things supposing you had a case where the mandate was simply a decision of the district court vacated case remained to the district court for further proceedings without the express item to say should we do have this case would we would we have a different circumstance there in your view i think the circumstances might be different because in this case there were very specific directions as to what had to be done and what had to be found and exactly the order in which it had to be done and the record go to florida court for that three years of the nec to believe that there was over a period of eight years  your colleague there what i look to look at the docket entries in the back of the appendix that there does seem to have been some back and forth going on there was some there's some references to your client trying to find a lawyer one lawyer left the case and then there was a suspension and there seemed to be some back and forth communication going on or some kind of activity at least some kind of activity that was sufficient to generate these these various docket entries what do you have to say about that well there was actually there were there were situations where as you pointed out my client was looking for another where there was a one point there was a state imposed because c p r the corporate entity it filed for bankruptcy but even before or after those periods of time before judge  is findings that parties had actively and actually fully briefed on the papers the issues that had good remanded including pertaining to the five be apparently and that was also the case after the case about stipulating about submitting the final issues on the papers for example on on the court record and there was some debate bolero as to whether there was issues should be decided on the cold records or whether they should be decided with a new trial and we took the position upon the remand being issue us on that and he issued his ruling on the on the trial record so we have a situation here where there is enough in the record that the lower court could my office had tried to reconstruct the record and as we laid out we couldn't reach constructive record except that we were able to reconstruct just a large extent the trauma and so  said i had children that weren't born yet but we jokingly said around this office that if it languished much longer i would have to teach my son about this case for the next feel it was the court it is our position not surprisingly that this cour affirmed trial court below in all respects i know that you've read the briefs and you're familiar with it and so on the argument i never want to repeat what you've already read and my thought was for most runners had questions for me at the outset my thought was to point out what i think are some of the least two respects one i don't think we ever get to the one nine hundred two case first of all because of the abandonment of the case twice and i will come back and talk about the have been an issue because i believe it pertains to both the one ninety two and the five eighty patent but first of all let's say that we got past that somehow and i don't believe that we do but if we were to get past that one ninety two was sent back with very explicit directions by this court judge davis very meticulously went through those calls in for a status conference and said what is your read on these we submitted stipulations what had he done he followed there were those i thought meticulously submitted detailed amended findings and conclusions no objections were ever taken to those and there they sat in fact the parties agreed that he had fulfilled what he needed to do on the one ninety two so they never asked for a new trial not on the on the one ninety two no the new trial was only asked for i recall correctly and i think it's admitted in the pleadings was only asked for on the five eighty because one was evidence of a process gradient after that chemical conditioning and so we took that back and he looked at it looked at the record looked at the testimony quoted to the record again and said no there's no prosody gradient here before or after as i read the judgement critique from won't it was the judgment of not infringement issues with respect to that happened that's up here on appeal the other part of the case is the judgment which refused to reopen is right for judgement at that time the plaintiffs then entered into what we internally call the first abandonment of the action and nothing took place for years that you can't blame i don't think you can fairly be winning again we started five years ago i mean i don't know's you can blame ron wits for the fact the district court didn't enter judgment with respect to that one too especially after the second district court judge come in after judge ninety two with a final judgment i would not have said statue of limitations but i would have said that they waited too long they should have proceeded and asked for that to be reduced to a judgment and they failed to the fact matter is the only person who ever asked grinning to reduce to be a judge absolutely correct and that's why my response to your ira was in a limited sense yeah i'd like to blame that on him but i see your point there was no final judgment for him technically to appear eventually was a final judgment but one that absolutely was and i do not contest he was timely in his appeal here i don't think there is a problem and here's why i think that the burden properly falls with the moving party what your honour's referring to is a magistrate's ruling if you will that was on the seventeenth of february and that  parties we can't find a court all the parties should work together to try to reconstruct it that way it is if you will the law for us for about four days four days later the judge did interest in order closing the case and my understanding of a judge's closing your case is that whatever might have been pending before it is not pending anymore so our position at that point was this case is closed we took close but it close to you know prejudiced coming back right o them no doubt ok but our position was as we read it this case has no pending orders at all whether the order from or if it's even an order let the magistrate rule in a recommendation was is this we're going to close the case if you will and if you reconstruct the record and move to reopen the case we will certainly consider that ok and so the fairness comes here whoever wants to move to reopen a case either in this situation or any other situation has the burden to show why it should be reopened i would readily concede that had they come back the next day the next week the next couple of months and said we'd like to reopen the case the judge would have i'm sure will reopen the case if you have the problem is they couldn't just come the end he didn't they couldn't just come in and and it was their obligation to reconstruct the record in order to make it possible to come in and reopen right there with the preconditions to do it and it wasn't just a matter of them coming in knock at the door and say we want to help and they were under an obligation in order to do to come to a stipulation with the other side if they wanted to there or if failing that and judge leonard made this point in her little one that's on appeal if that didn't work it was incumbent upon them if they wanted to proceed it was incumbent upon them to come back before the court but say you want to attribute some malice to me which by the way i would like to point out because there are some some innuendo that i was not cooperating and status and then i just take a sixty second digression to say there's nothing on the record before th and let's say i do you said i won't cooperate or you just say neither cannot one of they do that i have two responses that want to i don't know that the answer that should make a difference on this appeal but for just academic speculation i would say that and i did a little research on this actually i do i believe that what would happen is if the quote felt like there was enough of a record to go forward you could go forward if the credit felt like there was not enough record before them but it could be supplemented and sometimes it can be let's say you lost the day's testimony of mr smith maybe you can supplement that with the deposition of the quotes that apparently allow for something like that but that kind of would have could have maybe should of speculation i don't think we ever got anywhere near there we don't have any idea if it message just to this day we have no idea what he was able to do during those thirty three thousand and  give me a scene early on within a month let's say of that but the case being closed we did receive a phone call i made a suggestion that his paralegal work with my paralegal initially and see what everybody had in a file and then the case was the judge's order that some i don't know that we were ever clear on what they were missing and to my knowledge while i'd have no knowledge i don't what they were found that ultimately we briefed the issues on the papers essentially new ground zero not hard for us to surmise that where it says at the end of that same whether there is to be a new trial or not and this will be addressed and progressed the judge gave us retired he had already decided to one on two issues so a new trial in that regard is doesn't make any sense we then took the position which judge magistrate judge seidlin to and the appeared to accept is that