adjudication of a settlement agreement in which the district court found in two thousand and sixteen and enforceable settlement agreement between the parties that on the one hand appellants had agreed to change the name of their school and in exchange plaintive had appreciated if you early on addressed matt and clarify that for sure i will start at that issue because that seems to be plaintiff's predominate defense here the procedural issue of appellate jurisdiction and whether the exception to the merger torrie order applies in this case normally the exception precludes merger into the final order where a plaintive has found his case dismissed for an unreasonable delay and failure to prosecute their case as we addressed in the briefs on the motion to dismiss and again in the briefs before the merits panel this exception to the murder doctrine does not apply in a case where the defendants are accepting a dismissal for prejudice not only of their counter claims but also plaintiff's claims as a means of seeking immediate appellate review of a prior unlock a tory order the supreme court know if they desired to have the case reopened and go forward i don't because quite frankly i would i would liken that to essentially a voluntary dismissal it is asking the parties would you like to proceed with your case and so if for example the plaintive or defendants for example had said your honor we'd like to voluntarily dismiss the court said very pointedly well i'd like to dismiss this with prejudice but but you know if you're not going to move this case forward  and took instead of giving the voluntary dismissal simply dismissed it for lack of prosecution usually you see that in a case where there is some reasonable delay the plaintiff has done something where it merits dismissing the case because plaintiffs or even defendants for that matter if it in this case were not moving their case forward not in a case where they elected specifically to dismiss their case and independence case in particular dismiss it so a plaintiff in this case has not cited any case in which you have this circumstance where a party is actually seeking dismissal and that's what the parties were doing and that's what the court at poignantly asked are you essentially seeking to in this case which they were because defendants wanted to go ahead an appeal and the issue is really it puts defendants in a very awkward position and we were in an awkward position where if we were to we did not want plaintiff's claims to go forward in fact we believe there was a settlement and given the settlement we simply wanted a determination in appellate review of whether there was a meeting of the minds the legal decision that effectively ended this case i'm i'm having some trouble figuring out what this case is about now because you have a dismissal of the plaintiff's claims with prejudice i would thought that's the number one thing you wanted at the outset of this case and would want it now and yet you're the one appealing and asking to go back to the settlement what's what's the difference how are you better off i don't understand what you're trying to get that you don't have your reason the twenty five thousand dollars it's the twenty five thousand dollars and that's it thats it this case there was an agreement to change the name of the school they did they didn't just change the name in a sort of you know ephemeral we're going to change the name they don't change they just come town trying to understand this these two schools have between them undoubtedly spent more than twenty five thousand dollars on this appeal and you're telling me the whole appeal is about twenty five thousand dollars they haven't spent don't combine that may be true but it's about enforcement of the settlement agreement and the terms of the agreement and that the parties and quite frankly it's about whether an agreement can simply be avoided whether in fact what was going on was defendant or i'm sorry plain to wanted that the name changed they agreed to pay a certain amount it doesn't really matter the specific amount once the name was changed then they refused to pay it and the suggestion is that that's ok this is not  this is not a school that has a lot of money so this is a school that largely is providing scholarships and opportunities to inner city youth every dollar counts twenty five thousand dollars is a lot of money to this school and in fact if we're talking about the cost of the appeal part of this has done been done pro bono because this is an institution that serves a community that simply has been under resourced and that this is twenty five thousand dollars that would substantially the typical case where i think we would want to the park on the day that it's just the pure state law contract dispute none the less of you resolve in federal court would be if the federal district court had something dire to ensure that her full force and power weapon being undermined and then we would take the appeal from that but every indication here in this report want to get a far away from the student possible so just say that there's no jurisdiction for that reason i think for the same reasons as we had discussed that certainly the court and i think had agreed at a certain point that to the extent the parties wanted to litigate an issue of breach of contract that that would be litigated in state court and i think we would agree with that proposition but here we are talking about the authority of the court when it has entered a settlement agreement inforced that settlement agreement and required full performance over the course of three years so much so in fact that even at the final hearing how it will for plaintive stated on the record that he agreed it looks like and i'm quoting it looks like they have complied with the ports order to change their name to springfield commonwealth academy that was the end essential e of this order the only thing then was for the court to require the payment of the settle amount that plaintiffs had agreed to so showing who you were sensually concerned not only upon the parties but but really binding upon the state court and yes there is the very serious potential and likelihood that race judicata would apply and that this appeal is the only avenue for the parties you need to resolve otherwise you face a binding judgment but you can't review it but that's not true the reason we don't review it because we say there's no appellate jurisdiction unless massachusetts law we treat the district reviewable judgment on that as something that gets raised which i don't know that's true and that's kind of the point i don't think we know that there's certainly a risk that's pretty substantial to the parties that a massachusetts court may not or may defer to the judgment of the district court which is equally as problematic for purposes of this case where we're simply not given the opportunity to address issues because at the outset we're facing a  sorry of a question of whether there's race judicata or any type of preclusion or simply whether there should be some deference given to any factual findings that were made in the proceeding at this point what we're where we appealing then is a determination that would have ended this matter and in that cause comes up in any case where you're appealing a determination that was reversed that would have ended the matter but didn't and so there's a bit of open ended ness to whether flight and if that's ultimately the finding then that she had no jurisdiction to even entertain a settlement agreement i think we would disagree respectfully with that proposition that i think gets to the question of the settlement agreement and whether the district court can both address the question of whether the parties had reached a settlement inter and in terms of enforcing a dismissal in this case which effectively it entered in the beginning that that would be sufficient for jurisdiction in this case and like i said it the court may rule timidly it didn't have that those problems that doesn't necessarily benefit the parties i think it only continues this litigation necessarily for an amount as as judge payout of pointed out we just simply like to conclude but more than that i do believe in a case here where you have ultimately a settlement and that there is an foresman of that settlement that it would lead to appellate jurisdiction on the question of the propriety of the judge's entertainment and findings with respect to some of the parties otherwise it really undermines the settlement process that undermines the mediation we go in with absolute uncertainty as to whether anything can be settled it it's uncertain as to whether any party can trust the district court if after three years of adjudication well simply the court may reverse of finding and then there is no jurisdiction for appellate review there then is no jurisdiction to consider any relief from that determination simply why would parties mediate in federal court if in fact there there's this sort of potential that you enter into a settlement it's put on the record it's in force fully and at this point the school certainly can change back and encourage all the cost that it did but it has no relief in getting to the finale that it agreed to it's sort of then in trenches parties as to whether they even want to mediate or try to settle cases in the federal courts to find a lack of jurisdiction over a case that originally the and attorney all of aereo if you could your device introduce yourself on the record twenty five thousand dollars to mr read and i can imagine that's that's no real to ramses their agent he's spending time on behalf of them instead of them having to pay him the money goes directly to them i'm still trying to figure out how to intelligent lawyers would end up in the st circuit arguing over twenty five thousand dollars well the reason we're here your honor is because let me address this that that was going to happen and let me tell you why my client spends nine months before this it was filed trying to get some kind of line of communication with mr rose quiet toget rather than looking back to hear there's a section in the transcript where you seem to acknowledge that not the other side has substantially performed the quote know it at the time of that hearing but at the time of the hearing they were using the exact terminology and phrases that they had been ordered not to using how about today one of the to do you have a bone to pick with them today yes we do in fact right now today as we sit here the st period of their website if you go to springfield commonwealth dot org on the front page it says commonwealth academy in springfield that is precisely the term that they promised not to use and that the judge ordered them not to use so then why are you appealing because you lost your claim your claim has been dismissed with there is an ongoing infringement which my client will make a decision about whether or not to pursue either in a separate trademark infringement suit or by settlement let me say this if this is i put i believe before twelve suit it believes today that this dispute can be resolved apart from litigation as you all know litigation is the absolute last resort for anybody and everybody it's expensive it's time consuming it bad you know it's just bad karma for everybody and that's what my quiet desperately wants to avoid michael i believes right initially resisted eventually they agreed to it after the judge indicated she was going to order them to comply with her orders so they felt they got the feeling that they were losing and so they decided to go to make sense for after this argument not today in a short period of time for the two parties to get on the line with a mediator and see if they can resolve this thing because it doesn't sound like you had four years of  them have to go back and correct myself we were contacted by a can't remember you're talking about the mediator that's associated with the st circuit that can't process yes we were contacted by him and the process failed so in other words you've had the mediation or because not succeeded that is correct the st circuit level district court has jurisdiction let me say something else about the we had the agreement we the district court was initially at the st hearing that we had before d the district court back in two thousand and sixteen  that was based on a motion we brought for an injunction and that was after mediation had failed the judge was winning towards issuing an injunction what she proposed as an alternative that the parties stipulate to the agreement that she created basically on the record so that's into her order that we're agreed to pay them twenty five thousand dollars on three conditions that they provide proof that they were complying with the piece of the agreement and the drop in the plane the relationship from our end and as stated by the district court was that the twenty five dismissal that sounds that sounds rather strange the court said it was an agreement that would result the court was clearly got a lot of agreement to resolve the whole case they would change their name you would pay some money correct and that implies i mean nobody mention of intellect that without an understanding that the case is being dismissed we would have dismissed the case if they had complied with the judge's order there's no question but that my client wants nothing to do with litigation we would have been glad to voluntarily dismiss this case and i will tell you that the fact is the reason we did not move to re open this case is again because my client believes that there is a realistic possibility of settling this case if they can get an audience with a rational person connected quiet except that mr ray has been telling us that the reason that you want out at this point is because you've already gotten most of what you wanted to now you're just trying to avoid the mystery's client right now as you said before all of the questions have been dismissed with prejudice so all of our claims in the past now in the past have been dismissed with prejudice but that doesn't under trademark law not not that doesn't even limit a a cause of action in the future if mr ray's client continues to infringe  how does that if they continue doing what they were doing right before the case was dismissed i'm not so sure about that well the case was dismissed for failure to prosecute yes again my name is john rein i represent the palin's and i think in this recent round the court is getting a little bit of a sense of what we've been dealing with that this is why we want to get finale with this settlement agreement now and the court asked a judge to asked well is there any record where mr olive verio stated that they were substantial compliance i quoted him where he said it looks like they have complied with the court's order to change their name that's in the record in the appendix at page six hundred and fourteen lines eight through twelve you can see as mr all of area later agreed in fact there was substantial mediation efforts by the camp the st circuit there is no need to necessarily go back but we tried our best to comply with whatever requests they had to get this thing settled we simply can't do it no matter how much we agree no matter how much we're willing to do we're still fighting this issue like to get some closure as to the issue of whether there was a written agreement that's also simply false the parties after the mediation engaged and sent back what they thought were the written portions of in writing i'm sorry an actual formal settlement agreement not on to ask you about that agreement you agreed to change your client would change its name to springfield commonwealth academy s c a that's correct and did the parties agree on the extent to which you could in print format or otherwise relatively diminish the prominence of the springfield who are heard relative to the commonwealth were no we did not do so how do you have a meeting and that's the whole fight right to acts so how do you have a meeting of the minds sure we had a meeting of the minds insofar as the court had adjudicated all of these issues with respect to every objection and made determinations as to every single one the issue with respect to meeting of the minds and whether we have to agree on inch sizes font sizes has been goes well beyond what's required for a meeting of the minds we have to have a meeting of of minds on the material terms the written exchanges between the parties can be d writing in that prominence relative to common law is not a material term under contract even when the disagreement is about an inch yes i think that that makes it not material but then on top of that point we said look we're going to concede at the final and we said look we're just going to concede the issue because we didn't want to continue to litigate about inches we said we'll get it if we have to say exactness if we have to say whatever the quirk wanted to be we're going to simply accept whatever they're suggesting was the agreement as the agreement at that point we eliminated the issue of materiality the suggestion that there were conditions one is rebutted again by the written agreements that the parties had exchanged but two it's rejected by the limitations on their agreement to pay which was contained in a written agreement and an oral breman the written agreement was not signed but the parties had exchanged all the material terms they submitted affidavits to the court as to the material terms they did not vary from the writing and the court adopted the exchange that you would change the name they would pay you twenty five thousand dollars there were no limitations and the court had repeatedly rejected this can be found in the court's order at four hundred and twenty nine dollars mr all of ariel's newfound suggestion that in fact well we only agreed to these things these things these things it was a wasn't found in the written agreements they provided it wasn't found in the material terms they submitted it wasn't found in the courts or what we're talking about at this point is three years of adjudication i think your time is offering this to an  entered the dream and she dismissed the underlying trademark litigation i think that the purport since this back that the difference was not material we had conceded the difference they're obligated to make the payment that would bring an end to this entire case and this would be over which is what they're expressing they want we are expressing we want we've said repeatedly we're we're we're we're willing to do and whatever you may find remotely somewhere on the internet we're willing to change which the school has substantially to simply bring this to an end instead of the just just endless years of plaintiff's objections as to why they should pay the twenty five thousand dollars they promised at the end of the day this is holding them accountable and holding the integrity of a settlement agreement to bring it into litigation rather than have this go on for another ten years really about a very small amount and to preclude the what seems to be now here of further threat of additional litigation on an underlying trademark action that the settlement that with all the next case yes sir that concludes the argument in this case attorney ray an attorney i love area you should just connect from airing at this time