in light of the district court's recent clarification order indicating that the august tenth dismissal order was intended as a rule forty one the sanction there are three points that i want to focus on first we have not forfeited a e review in this case by failing to address the forty one b discretionary factors in our opening brief second even though because in this case this court has recognized three three separate bases for excusing a forfeiture i particularly would rely on the fact that it would be find that we have forfeited review of the discretionary factors when the district court had made no mention whatsoever of rule forty one b until just less than three weeks ago long after all of the appellate briefs in this case were were filed to the apple we had the district court has an obligation before entering a sewer sponte dismissal pursuant to forty one b to provide a warning to the parties of its intention to do so of course that's consistent with just the basic principles of due process  would have been sufficient if the court said you have permission to file within thirty days and if you do not i will dismiss this case it would certainly be much better i personally think it would be preferable if the court said and i will dismiss this case for failure to amend pursuant to forty one p to just eliminate any potential ambiguity between ok dismissal of suppose that's what he said is that is that enough does that make this failing to comply with a court order warranting dismissal under forty one big had had the initial order said that i filled believe that the me sanction i just got confused ok i thought you had thirty days to a man and then you didn't do it for a fairly long time am i wrong that that is incorrect so it was only two days right so you ok and i think more than two days no the district court entered its order on july five saying that you have thirty days the men so that would be up around august third or fourth and then added as we've looked let's look at it from a practical standpoint the district court granted the twelve b six and said ok you get another chance to do it do it within thirty days thirty days passes the district court's got a huge docket it's trying to move things along this record doesn't hear anything what is the district court supposed to do at that point so that are send out a warning yes actually under a lever they are but in this case the the deadline was monday august seventh to file the the amended complaint  amend it didn't say you must file an amendment or an amendment or a notice of intent not to amend or motion for reconsideration our request for entry a final judgment it simply says we construe forty one it as a dismissal as a shut sanction and it sounds to me like we have to tell the district courts they have to use the magic words they have to say you shall file within thirty days or you dismissed we have to tell them to say that i think that would be excellent guidance because if the court mandated back you you know all you asked for was time and the court gave you the time you didn't do it and he dismisses the case you say you had to come back and say you didn't do it in time i'm going to dismiss the case unless unless you come in tell me something different so all the burden then falls on the district court to take care of your problem when you didn't amanda in time you had time you could come back to the court right away and said your honor we messed up we want to file a new complaint give us a few more days all counts so what happened after you got the first notice the dismissal before the clarification you just appealed rights of the time to to file an amended complaint past we had concluded it's not part of the record since file an amended complaint is not the disobedience of a court order dismissing a complaint with leave to amend where the original dismissal was erroneous but also under your ish the this court has a review my court basically it's your position that this court without sending it back to the district court can in effect issue it will be six orders ruling on the merits of the case based upon the facts leave to amend into a judgment by a matter of right the language applied used in their notice of appeal made clear that they understood that the order they were appealing from was not a dismissal of the twelve b six order and that a twelve year six order with leave to him and is interlock atory yet they filed an opening brief that went straight to the merits forcing my client to address issues that are properly before the court and to raise in intice a patient the only two issues that are properly before the court and that is whether the district court committed abuse of discretion in dismissing the case and whether or not applied forfeited the right to claim otherwise by remaining silent in their opening brief on the waiver issue this isn't a case where applied read some of the issues that were raised below and not all this is a case where they knew that august tenth order dismissed soon for failure to amend pursuant to the underlying order was the elephant in the room and they chose to ignore it  or so if the court is going to set aside an abuse of discretion that we still have a twelve b six order with leave two men with below where there was complete silence that permits us to rule on this case so i do think there is a jurisdictional issue that hasn't been fleshed out in the briefs we had to kind of anticipate what those arguments were going to be but what remains if the court were to set aside and since two thousand and four a litigant would have known that they have to say something if they want to stand on a twelve precepts order with leave an imagined that into that so that the court entered an order  dismissing the case for failure to leave for for failure to amend as required by the underlying order so that an order or just permission to do so well the underlying order was  dream basically i think what i think judge smith is getting at is that we look at this record and assuming that we find that the dismissal under forty one b is not appropriate it's too punitive given the short time between the issuance of the order the failure time and then the final dismissal a sanction now what we're left with is the district court's analysis with analysis to determine whether the district court correctly ruled that it was fair use so there is a tricky jurisdictional issue there that hasn't been fleshed out in the case all that i know and we haven't really new order that says i hereby dismiss on basis of twenty six and then we go and then we come back so i wouldn't call that you at all i call it a like a lot of wasted time but it might be necessary waste of time so i guess the question to you is is that necessary waste of time well given that we've got all the analysis here but they've responded you've brief the correctness or incorrectness of the district court ruling the analysis right we have everything here so if you were to go down and come back up what would change you know terms of the parties argument nothing other than you would have a final appealable order which i'm not sure right now you do if you  motion to nominated a particular way we say we're going to treat that like water in this case where you have forty one decision by the district court would we have liberty to i still think there is a jurisdictional issue and it's contrary to my client's best interest because they would like this resolved expeditiously and presently we're quite confident on the fair nominate a fair use factor but i do think there's a jurisdiction treating it as if it were a twelve motion because that's what the district court appeared to have done and it was final would we then have jurisdiction i don't think the the courts twelve years six order was final and contemplated allowing for amendment it's clear that marching into this court they didn't intend to amend never did intend to it is with regard to the underlying claims it may be efficient in this case but it would not be efficient in every case if just for lack of doing anything every twelve years six order with leave to amend automatically became a final an appeal case it would create piecemeal litigation it would not the near to the benefit of the overarching policy of expeditious resolution of cases on their merits a factor that is part of the five factor and the warning the obligation to warn is one factor right the court may have said before you enter this dismissal i'll give you a warning but it's been since two thousand and four that if you sit silent the court has a right to enter a dismissal the harris case involved for motions on twelve years six with leave to amend each one was a forty one b a dismissal for sheer lack of doing nothing and that's a prisoner pro per case there's no reason to come to a different conclusion it has been clear since the edwards marine parks case that you can't do anything you can't sit  know and our if we treat this as a final judgment on the court's analysis and determined that the district court correctly dismissed the case what do we do then do we then send it back for leave a is opposing counsel correct that your intent was to stand on the original complaint and not amend that all yet i believe our intent was to stand on the original complaint so if this court believes that fair use was correct then i think this court would simply affirm the judgment for obviously for the reasons asserted in our briefs we would hope you would reach the contrary conclusion but you would have jurisdiction to reach that conclusion to decide