good morning your honor smith pleased the court for brevity purposes although the brief addresses more than two issues i'm going to focus on two the first deals with the award of attorney's fees under federal rule fifty four being the supreme court the u s supreme court has instructed us that unless the rule is ambiguous it's to be followed as written know order for judge phillips award of attorneys to be to be sustained on appeal this court is going to have to find that the rule is ambiguous because the rule does added and the committee's notes at the time of that amendment do not discuss any implied exception for the filing of post trial motions since it is clear that in this case the judgment was entered on july two of two thousand and three and the motion for attorney's fees was not filed until august thirteenth of two thousand and three the motion was untimely and cannot be sustained on appeal and i assume you made that argument in the district court we did and the district court said it followed a case out of the first circuit  followed a case out of the eleventh circuit and it followed and a trial court opinion out of the central district of california and held what it held that there was an implied exception in the rule for the delay in filing the motion until after post trial motions have been heard and ruled upon which is precisely what the supreme court says you cannot do unless you find that the rule is and figure as judge phillips did not find rule fifty four b to be ambiguous she simply found there was an implied exception which i don't think the supreme court permits and that the supreme court has indicated that if you if you don't agree with what the rule says the trial court's job is not to rewrite the rule but to leave it up to others to deal with it you're simply supposed to follow the rule as it's written she did not and i don't think the award can be sustained on appeal the second issue is  the respondent in this case can in effect obtain a double recovery record allowed over objection the case to go to the jury on both the one nine hundred eighty three excessive force standard and on a california common law negligence standard well i don't see that you or your position ever was that that's not possible you could have both  you look at the instructions in the special verdict and you didn't seem to object to the idea that there could be a recovery for excessive force and for negligence quite to quite the contrary to the special verdict i  the court to the court allowing the jury to be instructed on negligence at all i made a rule fifty motion on the ground that there wasn't any that's correct because there's no evidence of any negligent conduct in order for there to be a recovery under california common law negligence theory there would have to be evidence that would indicate there was some conduct that would have been a failure to act appropriately that would not also constitute the use of excessive force because the california state law on battery by a peace officer in the section one thousand nine hundred three standard for excessive force by a peace officer it the witness who purportedly said it made if you didn't see any striking of the head on the door he didn't see any contact with the door the two deputies denied the allegation was made but there's no proof of that and certainly no substantial evidence of the respondent testified he doesn't remember going through the door he obviously went through the door through the deputies indicated he went through the door  by contacting his shoulder there was no evidence that even if this had struck the door that it produced any injury much less an injury that would justify the amount of emotional distress damages that were awarded for that particular act the acts the plaintiffs that dr bailey indicated potentially could have formed the basis of the negligence either did not happen or there's no evidence that it happened or did not involve deputies colbert and to personnel or with either be privileged under federal and if there's evidence to support the instructions this structures are fine the court provided the jury with model instructional levon point four with respect to excessive force it also instructed the jury it to the jury and i did not discussed negligence because i didn't believe there was any and if you look at the final argument i make sure i knew what you said when you finally got your opportunity to talk to the jury you didn't discuss micros and not because we never took the position there was negligent you never even said there was no nicholas and i argued it to the court but not to the church if you look at and i also got slammed you know if you look at counsel's respondents final argument is not an issue that was really addressed in final argument the jury came up with two hundred twenty thousand dollars or yes but they came up with it in a very peculiar way if you look at how they assessed damages they were the economic damages on the federal civil rights claim only there were no non economic damages you know of the seven and one thousand and i know i understand where the nineteen thousand dollar component of it can be sixty thousand but it's counsel asked for there was no proof of that but economic damage award comes in on the negligence claim much less how the conduct that that has never been explained to be negligent could not support an award of almost one hundred seventy five thousand dollars so you're making two arguments first of all there was no insufficient evidence of negligence for that theory to grind of the jury in the first place and secondly if it did it was double recovery that's right well question five clearly segregates out civil rights violation and then question twelve he says in addition to any damages you worded the question number five to it seems that the special verdict separates the two answers five involves a civil rights to the negligence involved twelve b so that that would seem to eliminate double recovery if in fact there's evidence to support so it goes back your first position or it isn't it was a period right when when judge phillips indicated she was going to instruct the jury on negligence and was in fact going to craft a verdict form that included a negligence question because of my concern that i would face the exact argument i'm having to deal with now that there would be double recover there was the necessity to try and segregate out which was which five in twelve that's correct i couldn't at that moment in time just simply lay back and have it all lumped in it was always my position and i argued to the judge phillips as part of my rule fifty motion that whatever my client's did they did it intentionally during the detention and subsequent  sk to anyone going through the door i think there's there's no substantial evidence that any damage was caused to the plaintiff in that context they also talk about the various  california state law standard and the federal standard on excessive force are centrally the same and i believe that they are whether the force was objectively reasonable under the circumstances how can you gov pailin a negligence claim unless that and not have it means double recovery unless you have some demonstrably evidence of other conduct that would not violate state and federal law with respect to the use of force you would have to have some conduct that would not violate the state and federal standard but yet be negligent because of harm to the place so that way but when you look at the record there's nothing that supports it because when you asked responded to explain what those items of negligence were they said i'm fourth in their brief there are five and when you look carefully at the record several of them are either totally unsupported by the record or didn't happen that involved my clients or are intentional conduct and again without any proof that those items even occur but you didn't argue that  the opponents premises is a false promise a straw man device they state it's the same exact use of force they keep repeating this this was a string of completely incompetent police conduct  contending that having not done so contending that his hands in his waist were a threat to them never inquiring as to who he was then the supplying wristlock and running him through a heavy door somebody's quote hitting the door real hard and it flying open close quote that's lines twenty three twenty four yeah nobody said he had is it on the door door described quote i'm going to get that you're on your described very quote very have you so heavy that i've had to replace the hinges on the top of the door two different doors while i work there because it keeps pulling it out of the door jamb close quote that's pages are lies seventeen through nineteen on page five sixty four plus we have the fact that dr bailey received a sub arachnoid hemorrhage to the back of his head plus dr bailey testified that when the wrist lock was applied he went up on his toes because of the pain experienced plus the fact that he doesn't recall hitting the door going through the door and that's consistent because that's a b caused by the blow all of those things directly and circumstantially a stablished that that he has had he was he was so it lifted up and bent over from the pain that he of the injury sustained a very modest recovery considering we have a sub arachnoid hemorrhage which is a life threatening condition an orbital blow out fracture of the right eye a permanent condition of of terminations of a relationship of at the merino valley hospital this is very modest recovery in light of those serious injuries and there were obviously intentional acts of violence first witness reports transcript fifty eight line twenty three he describes his punch of dr bailey in the right eye which is a serious permanent injury as it was a reaction in other words he didn't intend he was saying he was bitten he negligently applied across the restraint ended up getting his arm in dr bailey's mouth then perceived he was being bitten and then as a reaction he said i characterize it as reflective in my grief but when i was challenged in the final comments closing brief that there was no evidence of that i went back because i remembered it and there it is it was a reaction that was the structure in the of the of the skull and has caused the permanent injury that's what the jury saw is that and that's why they didn't in some cases they didn't get us into a punitive damages situation they stayed off what the officer said that they didn't intend to strike in that and i want to say that mr these in house didn't argue negligence but he wanted to have his cake and eat it too he said we don't think anything here was negligent trying to think of the court of the court yes i get it i get argued that i did argue that there should be punitive as i argued that overall i was seeking a one nine hundred eighty three judgement but that i said there was also evidence to support a negligence holding and if they found that i would appreciate  testing my memory your honor i asked for a million dollars i remember that i did that and i think i asked for more than i got  like wiccan in california i think it there are two two circuits that have followed it the ninth haven't expressed itself and i've followed the advice of the of that federal and thinking that if the court has it in or chambers i think is good enough for me and it's written by two federal judges and so that and i think she saw it my way in that regard to that line was told by defense filing a motion per that but certainly as a negligence action that was negligent everyone testified that that's not how you put on handcuffs you put them on double locked and they were not double locked and if they didn't double lock the fact that dr bailey was kept for seven and a half hours in handcuffs wouldn't have injured him he would have had to have a carpal tunnel operation so that's that's an oversight that's negligence perhaps the officer the quit and made a mistake but who are making the arrest they're responsible for checking that type of thing they failed to do it they failed to do their duty and that's negligence so there's lots of negligence that corresponds to the injury and there was no miscarriage of justice in this for the support mr jose has provided this court perhaps with some other examples of why negligent conduct could be found unfortunately for him none of them are found in the record the  bailey being kept in handcuffs for seven and a half hours because they did not transport him to the hospital there was another deputy hernandez who testified who indicated he was the one who was responsible for the transport because culvert into as you know were removed from the scene in my back to the station which is contained in the record i understand judge phillips is effective determination that there is some implied tolling provision in roll fifty four the problem is the rule is clear and it doesn't provide it and when the fourteen day requirement was added it didn't add it either there are she she held it's look there's a motion for attorney's fees before you figure out whether the judgment evaporate how do you even know the prevailing party yes well i mean your role you have to decide all these things prior to the time when you had a real you had a judgment that was that was flying the the rule are going to determine who the prevailing party was requirement was added presumably the committee had your thought process of mind and still imposed the fourteen day requirement it's just the motion has to be filed it doesn't say all of the supporting documentation and everything else that might entail attorney's fees for having to deal with post trial motions can't be filed at some later time it simply says that motion has to be filed within fourteen days of the judge and just suspended until we finally decide whether  s absolutely because when the rules provide exceptions they make it very clear under what circumstances those exceptions are being apply or they find that dr bailey was thirty percent negligent i have no idea that you argue that no i have no idea how they came up with their their i assume they looked at it and they decided given what took place each of them was essentially equally responsible for what occurred and because my clients wore badges they got five percent more than dr bailey did how they arrived at it is as much a mystery to me as how they arrived at their their their the court i'm dennis martin i'm with will more