good morning may please the court my name is william cohen k o h and i represent the plaintiffs dr bamma saami and his professional corporation in this appeal we are asking this court to determine that the district court of used its discretion by essentially failing to require that the defendant's counsel demonstrate that they under took appropriate subject matter jurisdiction inquiry at the outset of the case so it's a it's a high barrier for you because you agree and i think correctly that sanctions under nine hundred twenty seven are a matter of discretion and the district court doesn't think that there was any misbehavior in this circumstance that she finds it understandable that maybe this got delayed and so you could when i think only if there were some absolutely a high burden and i think the case law we have cited does demonstrate that it is always a even a defense counsels and especially a defense counsel's burden to enquire of the subjective that's something that has in this case a plaintiff can never know but the defendant inquiring of his client especially as in this case when mr mendelsohn admirably admitted in his affidavit that he knew the defendant dr perak had retained his illinois residence that seattle have residences all over the country i mean it seems that dr bun you saw me was in a couple of different places you've got him in illinois you've got in indiana he's working out of texas for a while you mean dr parade i'm sorry dr berry is he's in texas for a while and the fact that you own property in the state doesn't necessarily mean you're domus sile there no but it additionally raises the possibility that someone who moves out of state for work when his counsel knows he retains his residence may intend to move back to his original home state and therefore he said district judge fin this is kind of a messy situation that there is an initial conversation in that there's no bad faith in this and just doesn't think it's sanction of lee bad it doesn't mean that she's trying to keep the case over this it's just  i don't think the district court found or could have reasonably reasonably found based on the affidavit that there was that sort of inquiry i think if you look at mr mandelson's affidavit he says mr marks and i advised the doctor of the basis for suing in federal court if you tell a medical doctor they sued you in federal federal court because you lived in indiana the doctor's not going to know if that means previously currently when that and when that begins they are clear they did not ask him at the time of the filing of suit where do you currently reside or where you intend to return there was none of that discussion and i am submitting under the case law we cited first of all johnson versus wattenberg or that it's a litigant spur stood in every case to determine subject matter jurisdiction and then i think crucially the cases that we actually cited in our rule such a rule twenty eight the latter where they talk about defendants cannot assume jurisdiction they must investigated as well especially that bellevue catering case when you put all that together and you realize that the defendant is the or defense counsel is the only gate keeper of the defendant's domicile arete intent a plaintiff can never know that until they get to court and yes a plaintiff can be wrong and when defense counsel realizes that he can send me a rule eleven letter or call me up with some of the cases suggest and say cohen i think you got it wrong because my client tells me he's sold his indiana house and he's in the process of closing and he intends to move back to illinois and all of that maybe so first of all it's the burden of it's the maybe that's the wrong standard procedure but she points out the georgia priests attorneys represent for years in the state court he's doma silden indiana for a long time they communicate largely by e mail which could be you know from the everest as far as i know and so whether he comes back to illinois with the intent to stay forever or not isn't something that's front and center you know and she's a little discouraged she wasted all this time on preparing a res judicata memorandum too but just doesn't see this and sanctionable i can answer your question i don't take issue with the recitation of that portion of the standard that the district court quoted i think that's an incomplete recitation of the panoply of standards but i do respectfully take issue with the district court's inquiry because the district court ends up saying in this era of electronic communication it's not surprising the council's attention wasn't drawn to dr perricone return that i think is the wrong inquiry i think if your case is that this court's cases mean anything you can't wait to be drawn to something you have to make an affirmative inquiry where do you live because they just suit you in federal court rather than in peoria where we were where we used to litigate this case and no longer litigated that so i'm saying that's a threshold inquiry and i think the case law that we've cited it contains ample discussion about procedural gaps can sometimes lead to section one hundred twenty seven seven every time the defense lawyer fails to uncover jurors flaw no let me in let me qualify that i think in this case the failure to ask and the district courts failure to focus on that demonstrates and you know rony it's legal conclusion which allows this court to review that but i think i would argue for a per se rule if you don't bother to ask you open yourself up to  sanctions and i don't think the district court properly analyzed the inquiry here and i'd like to reserve some time for a bottle with the gravity of the  reduce them in but i think if we're to take this court's jurisprudence at its word that that is a threshold inquiry the failure to undertake that inquiry is also always has a additional work you had to do i think the all the work that was done which was briefing on the substantive race judicata motion was unnecessary but i mean have you have you priced that out we get we engaged in a court mandated settlement conference in this court and we've discussed but you independently but i haven't had an opportunity to engage opposing counsel directly in that respect ok thank you good morning may please the court my name is alex marks and mr mendelsohn is also sitting at counsel table as your honour's correctly point out counsel has a very high standard here because it is a bit like aggression both because there's  on the seventh circuit has interpreted one nine hundred twenty seven to require vexation of some reasonable conduct on the part of an attorney normally it's aimed at plaintiff's attorneys who are dilatory or have some sort of intentional heightening misconduct which delays a case the court has some a circuit is later interpreted that word vexatious to be conduct that goes beyond what is considered on reasonable and requires that a party act and it was beyond what isn't reasonable beyond sound reasonable squared or something you know well it's a very asking about the standard certainly with a lawyer hundred rules up and imposes costs on the other side why shouldn't why should why shouldn't sanctions be him because under section one of all this subjective subjective harm to people with negligent misconduct and then there should be no sanction this sounds to me is sacrosanct about lawyers now that even when they're negligent they don't pay any price for the seven searches explicitly found in multiple cases that for that well i'll tell address in three parts on number one again i understand this is not what you're getting at with your question but again i take issue with any implication that somehow there was misconduct or negligence on our part because there wasn't we had and we had extensive so we shouldn't have live billing for negligence this is just the sort of thing that happens in driving and practicing law and doing everything right well i suppose when you do your your honour's hypothetical the difference would be nevertheless that's actionable that's a tour damaging someone's property and i think your honor what you're getting at is there's also a tort for attorney malpractise if a party has been harmed but separately this is a rule a sanction shiftily to the word unreasonably if the only word there were unreasonably you might be going down a negligent space path exactly on and that's what the court in this is the cuts realist case the sudden circuit precedent has said is interpreted something where you go out of your way to cause a party to be delayed or mislead the court or something along those lines i think the case that is probably closest in and in analogous fashion is the i tell containers case which is as district in new jersey case in the subject of an object to a dichotomy then further breaks that out in the courts have said if the parties action here it's an alleged omission not bringing a motion sooner but if the parties action had at least a colorable basis to it you have to have some sort of objective or sees me subjective bad faith if you don't have that there is no colorable basis for some sort of action which here the district court found that there was that there was it was no surprise we were not alerted the fact is there were internal animal called objective fact which implies that you're not not intentional right now i think would have i think what the courts have said there is you take some sense you take some sort of action if there was a good faith basis for taking that action then you have to have some sort of subjective bad faith meaning i think what they know is there is objectively or subjective bad understood so when you tell me what objectively sure objective bad faith is you don't need malice you need some sort of reckless indifference to the law you pursue a path that you knew was never going to be success and anybody would think it's bad faith it doesn't matter if you thought it was bad faith anybody would that is correct maybe if you could spend one second elaborating on why you don't think your activity here warrants sanctions certainly your honor there were several facts at the time the suit was filed where we we had no basis to have any understand our client move had moved back and then we took further asked in investigating that still had no understanding or climb to move back in as the court district court found and in her discretion it was no surprise we were not alerted the fact of his return to illinois here were the facts he had been living in illinois or she's been in indiana for five years at the time the suit was filed the district court found he was clearly domiciled in indiana at the time he had an indiana phone number he had his e mail it changed his bills were still being sent to the indiana address we had no communications at the time that he had not moved back because he was living out of state we obviously were not meeting in person with him and had any notion that he somehow had moved back further more importantly in this is what counsel consistently nors i think he's misrepresented the court that we somehow did not have in it some sort of a conversation with our client and i think he is implying that you have some sort of per se standard if you somehow missed a jurisdictional our going off the bat but when we had when we received no shit or a notice of the federal lawsuit and i was on the spawn call we contacted the client we alerted him to the fact there was a new lawsuit filed in federal court we alerted him we explained the basis for suit federal jurisdiction you're living in now ana the plaintiff is living in illinois they're alleging more than seventy five thousand dollars on the cop on the cop breach of contract which would provide for diversity jurisdiction we explain the nature of diversity jurisdiction in general and why that allowed him to file suit in federal court even though been litigating for almost a decade purity county and more importantly we then said counsel has requested that we accept service on your behalf and wait formal service of some of you and if you don't do this a sheriffs going to show up in indiana you're going to be served in indiana for whatever reason inexplicably or otherwise i think largely in part because our client has some english as a second language to him we covered this ad nauseum on this call and he agreed to accept service for us to accept service on his behalf he didn't mention oh by the way i'm not living in indiana anymore and move back to illinois none of this was alerted to us until almost a year later and in fact he didn't even contact our firm until six months after this lawsuit had been filed to change the billing address we were notified of that he contacted a legal assistant who didn't pass it up along but alerted the illegal assistant by the way i moved could you change the billing address so we had no reason to know what it is you had no contact with now we had contact with him but we had the initial conversation with him about living in indiana that i contacted indicated as well the way the notion the way the bills are mil mailed out in our firm i don't hand write out a bill and mail it to him address in the address that's the counting department as we certainly had contact about the lawsuit more was going on and again that it was until six months later that the bill goes out to illinois address not in indiana drag correct and otherwise you're in contact with them by email email or phone and i was on multiple the conversations and i can assure you it was no negligence alerted to us and that's what the district court found she's entitled that discretion i would like to know i say i'm out of time i just want to know can finish you i just do want to know because i think this is important mr mandelson i've been an attorney for twelve years mr manderson has served  as a mentor and a colleague to me nearly my entire legal career and i would be remiss if i did with this opportunity if i didn't know for the record that i think it's he's wholly undeserving of the allegations that counsel as bandied about both the district court and this court of some sort of malfeasance or misconduct there was nothing of the sort i was on those phone calls we did our job our client didn't tell us he'd move back to illinois the minute we found out we learned the district court there's simply nothing in the record to sanction him there's nothing in the record that further initially your honour's i think it's fair to say that mr marks goes beyond the bounds of the affidavit when he starts talking about the conversation he had with the client the affidavit speaks for itself and as your judge posner asked me earlier does it say that he m mendelsohn conducted any direct inquiry where do you live it doesn't there was assumption i understand that but if there is not a rule that defense counsel should directly enquire to confirm jurisdiction there is the danger that this can happen in many cases and i think this court wants to guard against that the cot silly heiress case i think there's a misrepresentation about what it holds it holds very clearly that if lawyers recklessly pursue a a reasonably careful attorney would have avoided that is considered objectively unreasonable and vexatious no malice or ill will is is required it's a heightened negligence standard yaps the case of say ordinary negligence typically suffice but extreme negligence or recklessness does in our position before this court is failing to inquire of your own client because you're the only one who has the opportunity to do that there were there were no depositions here there was no discovery there was a motion to dismiss you're the only one who has the opportunity to do that then it's reckless not to do that all right thank you very much mr pound thank your honour's we would ask that you reverse and remand for an appropriate