find that the district court abused its discretion in failing to set aside and treat the fault and default judgment in connection with the claimants in this case our clients claimants angela  could not file a timely claim in this case because they were legally precluded from doing so the legal impediment was angela aguilar's stipulated sentence in a related criminal case which in hindsight was the product was an untimely period in which the file claims although the standard of review in this case is deferential to the district court abuse of discretion this court has on numerous occasions and in numerous cases found just that an abuse of discretion in refusing to set aside the fall and determining whether the district court abused its discretion this court is required to determine novo whether the lower court applied the correct legal standard and we submit to this court that that was not the case that it did not happen the correct legal standard has been in place for approximately thirty years it was first articulated by this court in  fop versus allen in which the court stated quote the judgment by the fall is a drastic step appropriate only in extreme circumstances the case should when ever possible be decided on the factors and we submit to the court that the notion of a finding of extreme circumstances is a political will in all rule sixty in fifty five cases were  well it's our it's our position well that that is that that's an easy enough to answer has any published opinion ever said that extreme circumstances is separate from the pop factors mesley obviously they published opinion  provides an extreme it sets forth this test the standard of review if you will and provides that extreme circumstances have to justify there has to be a finding which justifies it in i f i could this corps repeated the requirement in two thousand and one after a fork in p c i life insurance versus number in which it said that the long standing principle the default judgments are disfavored applies and that judgment by default is a drastic step appropriate only in extreme circumstance this was followed in two thousand and ten by methley which set forth the same standard in the four and a half years since mesley there have been two cases granted not published but nonetheless two cases issued by this court in which district court decisions were reversed in which there were no findings whatsoever of extreme circumstances first in diversified products in two thousand and eleven and second and an l b tyner in two thousand and thirteen in each of these cases the court held that the lower court's failure to find extreme circumstances constituted an automatic abus discretion there was no one al assist in either of those cases of the fock factors because extreme circumstances in and of itself had not been considered by the district court and required reversal so let me ask you let me ask you this i think we're all of us are familiar with the cases you just mentioned but what seems a little bit odd is that none of the cases you've talked about give any substantive content to the six so called extreme circumstances prong or finding or whatever you want to call it i guess i had assumed that you the district court was supposed to go through the three fall factors and once you did that depending on your analysis of that that would tell you whether extreme circumstances existed or not you obviously are asking us to say that no extreme circumstances has some independent content to it but i guess my question to you is well what is it what is it that we're supposed to say the district court should have done other than go through the three factors i think the district court was required to find exactly that that there were extreme circumstances in this case under these circumstances and the facts that were unique really unique set of facts when you look at every other published case in this area and make a specific finding that extreme circumstances existed in this case that justified the entry of default in answering this question i think what the court is getting at is essentially what this extreme circumstances mean none of these decisions to discuss or elaborate on precisely what it means but i think a careful review of each of these cases shows the following that it's important to keep in mind that in reaching this conclusion as to whether to set aside entry default and default judgment the end of the day it's an equitable process it's an equitable analysis and there's a very strong policy preference for adjudication on the merits and i think at the end of the day that's what the district court didn't do in we believe me that should have done ok but let me just give you a hypothetical it's not our case exactly but let's say that i'm the district court and i determine i'm going through the fall factors and i determine that the second one the absence of a meritorious defense that's the one i'm going to rely on the other two are granary they are neutral or they favor the person wants the default side so what are the extreme circumstances i'm supposed to find in connection with that problem the fall i don't even know what that would look like in terms meritorious you either have a meritorious defense or you don't but i'm telling me that i have to find extreme circumstances i don't know what what would i do with that as a district court with respect to the example the court does not address extreme circumstances it merely says in the case of culpability that mere notice and failure to respond demonstrates culpability and addresses the other prongs in  k our view is that the facts in that case were what we would consider to be extreme that they were agree just you had a company that had in house counsel that had a general counsel general counsel was served with the summons and the complaint there was no reason why the company could not have responded to the summons and complaint instead waited for eleven months and didn't take action until not just the fault had been entered but default judgment had been entered under rule sixty b and only after the plaintiff began collection efforts and began to win force its judgment that was its hands weren't tied in any way you know i believe that those facts are different from our  you're talking about the first prong and i get how extreme circumstances could play into that but the district court need only rely on the one prong as i understand to have right to deny or of them under the fox factors and that that's where we disagree with the district court is that we believe that the as the now and and excuse me and diverse diversified tell us or show this is flipped around with the court wants to see is a finding of these extreme circumstances otherwise if there weren't any the case the analysis can end there if this court were to apply the fock factors as the district court did then again we view those as part of sort of a holistic and now lasse's of all of the circumstances in the case so that all of the equities are being considered in the case which include whether in fact there are equitable circumstances or extreme circumstances that justify entry of default along with culpable conduct and whether there's a meritorious defense we have positions as to whether or not we have a meritorious fent we believe that the standard is is fairly low establishing american ways but let's say i'm the district court and i have gone through the fog factors and i think boy there are there's certainly a lack of culpability or whatever but there might be extreme circumstances in every other respect but when i look to see is it worth us wasting our time reopening this to actually litigate it's crystal clear to me that this claimant of this point whatever has no this defendant i guess has no meritorious defense  whatsoever i mean i think our case to say that in that circumstance you're not supposed to grant relief from default because it would be a complete waste of time if it's clear so i guess i'm you're disputing in your case that it's clear but what if we disagreed with matter and it wasn't just her and so we agree with the district court that this is this would be a waste of time even though there might be extreme circumstances that your client could have come forward earlier but we're not going to waste our time reopening this because the court has told us and grant that the facts off actors are not to be applied mechanically again that all circumstances should be taken into consideration and it should be an equitable analysis and in fact that the fall factors can be disregarded if the equitable circumstances justify it all right so so it doesn't require sort of a mechanical application of each of these factors which is what the court did with respect to meritorious defense i hear what the court is saying but we have a different view of the facts we believe that if allowed to litigate the case conduct discovery and potentially try it that the case isn't as strong as the government would like it to be so for example a key piece of evidence that's alleged in the government's forfeiture complaint that allegedly establishes that the funds evidence in the criminal case it had heard and came came to that conclusion but it's crypto they're saying that the state said that the government lacked a lack of capital on station or something and so they're saying that it's official right that's what that's what we are saying yes there are a couple of reasons there is there is a temporal dissonance between two thousand and two and two thousand and six not a single bright payment in is made yet eight contracts are or morning your honor morning jennifer resnick on behalf of the united states the district court's decision to deny potential claimants motion to set aside andrew default and default judgment was squarely within its discretion  considered the disparate standards between messily and franchise holdings and properly found that this case was easily distinguishable from medley medley which involved somewhat women tipple circumstances with a legally ignorant pro se was highly dissing wishful and this case was much more similar franchise holdings because this is a corporate these these were fun to see from a corporate brokerage account the corporation grupo with precluded from finally crying but her so it's not who would have done it not me who would have acted on the company's behalf other than angela i guess her husband who really couldn't because he was a fugitive right correct while the government  cept for some evidence and answering briefs that there are at least three other people who appeared based on documentary evidence that was admitted in the criminal trial to there was a president there was a secretary and there was an a little daughter who appeared to be some sort of officer or have some sort of authority she was signing documents on behalf of grupo and the defense has actually just said well the government hasn't shown that these people actually had that authority in two thousand and eleven and that that authority was bas ed on documents from two thousand to two thousand and six i believe but there's no evidence that they did not there's they've put forth no evidence they've just made this assumption and made us gas about who person who could have response perhaps why would it not have done so well again this is a theory but the procedural history shows that as soon as the december first order  came out dismissing the criminal indictment against the lindsay defendants the aguilar's seized upon that opportunity to try and broker a settlement with the government so it seems clear that they were waiting for a more favorable tide hoping that the government would either dismiss that civil case or that they would be able to settle the case without having to have and ricky aguilar who's the fugitive come forward and knowing that angela was precluded under this post trial agreement but whether or not these other people came forward i don't really think we can say why  didn't come for it seems pretty clear that either they or that their authority was maybe just a straw sorority or that they didn't want to get involved because the government is is investigating criminal activity here and why would they want to put their themselves forward if they didn't have an actual stake in group maybe you can just address your opponent's argument about the effect of mostly because i can't make heads or tails of the case it does seem to to discuss an extreme circumstances aspect of the analysis that's totally independent of the fox factors and and in fact in the magic words that the district court wasn't required to actually verbalize that it was finding extreme circumstances regardless of whether or not it was actually required and the government has argued that these extreme circumstances were not required under franchise holdings but even if the court finds that the district court has to make findings that comported with this extreme circumstances notion that it simply wasn't the case  the court had to utter the magic words in order to blast this default but we know from as leigh that it's not enough for the court the district court just to go through the whole factors right so corrupt and so it seems like the court does need to tell us as the review in court what the extreme circumstances are even if it doesn't use those magic words so what's in the district court's order here tells us that you know something beyond the fog factors were well so well i think what the medley court was getting at and actually mentioned at the very end of this opinion was that it wanted the district court to have a quote proper awareness of this standard and it was clear in medley that the district court there did not have a proper awareness of this standard because of the circumstances and i won't go through the history of medley but the district court there did not bear in mind what was actually required fox and did not weigh those circumstances in light of medleys ignorance of the law the fact that it was pro se unsophisticated i think really what the court was getting at is that the court house to look at the the circumstances unfortunately there's not a lot of case law telling us what exactly is extreme but here the court found that the potential claimants were playing games that we have a a fugitive who really is probably an alter ego for this corporation and the court found that they were doing this we go gamesmanship and even said something to the fact that he wasn't even going to comment on what the lawyers were doing in this case and but it was clear that the court was not pleased notice of the complaint they'd play this wait and see game now that on top of the fact that the court had the benefit of five weeks of testimony in the criminal case and found that there this corporation that was legally sophisticated that was clearly represented by counsel throughout the course of both the criminal and civil proceedings of these are extreme circumstances and the defense has conceded that the circumstances in franchise holding for extreme if those were extreme then here are the circumstances must be extreme because the the corporation here grupo did not have its hands tied just like a defendant in franchise holdings and we also have a long procedural history where the claimant had notice as far back as two thousand  communications between government counsel and claimants counsel this is clearly a case where they had substantial notice and shows not to do anything that makes it extremely your opposing counsel relies on the nel versus tyner and i could see why they were relying on because it does seem to in that case they kind of just sent it back i don't think you dealt with that case in your br so i want to give you an opportunity now how would you respond to their reliance on that case well again that is an unpublished opinion and it appears although there are not a whole lot of  substantive facts in the opinion who could go online that this was a case that was much more similar to magically the appellant had no legal representation and there is no indication that they distinguishable and they were so such a unique circumstances that it cause those extreme circumstances terms which the court had borrowed obviously from other courts p c i and fo mentioning these extreme circumstances or were required or if the extreme circumstances was something else that need to be considered outside of the fox factors then i think we probably in more of a in the district court order i'm not aware of any opinions that deal with the extreme circumstances terms or or border what i mean is that they did at the aguilar's or reading medically to say you know this report didn't didn't say these were extreme circumstances force got to go back are you aware of any circuits that follow that wind of thought no i'm not at all all i know is that  american alliance insurance company which doesn't necessarily talk about the extreme circumstances but it goes more into doubts about what is willful what is bad faith what is the liberated and there is actually a case mentioned in that opinion where they are dealing with a fugitive who was trying to make a claim in a civil case and the court found that that was egregious and that upheld the default judgment in this case we have no further questions unless you have something you want to say to wrap up you know and i would just and was emphasizing that this is group both money this is not an jewels money it wasn't  circumstances here because group of is the only potential claimant that had standing and will claim would be dismissed for lack of standing and rica's would be dismissed for lack of standing and group but simply mentally looks looks to p c i d c i draws from faulk the wrists all three of those cases address the concept of extreme circumstances i recognize that again there aren't detailed analysis of that particular prong but it 's in our view that given the court refused to make any such findings in its stead relied entirely on the other factors and again just briefly address the point of meritorious defense it's our view that if allowed to defend the case and take testimony that there is evidence that contradicts many of the government's allegations the trial court itself in its december one order vacating the convictions and dismissing the indictment made findings it made statements regarding the state of the government's evidence against the lindsay that said that the evidence was not very strong that it there was no direct evidence of their knowledge that the funds would be used in this way we believe that those are indicative of weaknesses in the government's case that at the end they need a government has to prove to forfeit this money the government must prove that those that there was an agreement in advance of the transfer the funds between the lindsays and the aguilar's that the money is would be used to pay bribes and we submit to the court that that is not the case and that can be contradicted and we laid out facts in our brief that support that the thirty percent commission for example there's evidence that it was reasonable the temporal gaffer for four court is that this court i mean the react mesley is not really all that uncommon it's not all that uncommon for an individual who has no legal training or sophistication to receive something and not know perfectly well how to respond what is uncommon is for an individual to be prosecuted along with others and for the circumstances to be so severe for there to be violations of discovery that are so rampant in a case where there are false statements made to a grand jury that lead to the convictions being set aside and it was only because of the that conviction that our client entered into this agreement and her hands were tied as a result of it and could not file claims the critical time period of june to september of tw