your honor i'd like to reserve three minutes good morning routers my name is michael jacobs i'm appearing on behalf of the plaintiff appellant bay corrugated container i am back before you on a second appeal from the district court's order dismissing my client's petition to enforce a consent judgment and granting the defendants rule twelve b six motion to dismiss without first affording my client the opportunity to brief the issue i'm not going to regurgitate the facts i think they're all set forth in the breeze but i like to make three comments one is our enforcement efforts as long as arduous as they have been has now been delayed by an additional five years because we've been consumed in a five year period of two appeals  secondly lost somewhere and all of the finger pointing among everyone in this case is a very serious case here gold inc made an agreement to remediate contaminated property in the state of michigan they entered into a settlement agreement the settlement agreement was approved by the district court a consent judgment was entered by the consent that this pre court and the district court retain jurisdiction to enforce that reading the many of the cases under rule forty one b this is a and abandonment of the complaint in the middle of the case this is a case all about getting the defendant to live up to its obligations and remediate contaminated property implement the remediate plan in one thousand nine hundred nine the the goshi ations broke down over what the scope of that obligation was and they filed a petition to enforce its consent judgment that district court referred the parties to dean james barnes of the indiana university it environmental school of law i believe it was an outline of settlement was in or into in two thousand the parties continue to negotiate after the battery business of the defendant was sold technologies they went into bankruptcy in two thousand and two the parties in the go shaded in two thousand up to two thousand and six both parties filed proof of claims in the bankruptcy court i believe it was in georgia and in two thousand  nine it was the bankruptcy court wanted to pursue the proof of claim and they contacted the court and said we have to proceed with the petition for the consent judgment the rest is history the last five years we've been back and forth to the six because the district court somehow feels they went to sleep the court thing go to sleep and the defendant's going to go to sleep but they went to sleep so we came that came here to cincinnati three or two years ago two thousand  and this court remained in this case back to the district court to make a factual record and of course the district court did not do that they called for briefing we brief the issue we could not take any discovery also said that  we didn't say briefing we said and we didn't have enough of a determination to rule on the aisle to firm on the alternative ground that was relied upon by the district court correct and that that at least facially permitted the district court to provide that record in the alternative to doing what you suggest but you just laid out well i think this court also remain in two questions one was the rule forty one b and secondly was issue an ovation because that was key there one is sufficient if it's properly supported i would agree both counts could result in a dismissal either either or i mean you can't have another lower court relied on the other one just because it did it that way doesn't mean it was wrong i mean you can say it made a mistake when it did it well but we didn't say you had to rule on the first one we just basically said you either had to rule on the first one or provide a sufficient record rule and  so that's a fair reading as i wasn't on that now i understand it's a fair reading to the extent though it's a little bit critical to say that the district court just ignored our instructions our instructions barely read said you can go way down one of two routes and i was denied that opportunity for example i wanted to take the deposition of the attorneys who are working to file between two thousand and two thousand and six to see what everyone was doing the district court so they could not do that the key issue here that the defendant keeps pounding the plaintiff with and that this record made of specific point in its opinion was the fact that my client made a strategic position after the settlement discussions stalled and i prefer to use the word stall they weren't cut off nobody said we're leaving or left the table they stalled ok and then my client made a decision just means nothing happened i understand that i'm i don't know what this fear well i mean lawyers stop on the other lawyers the draft is record shows the documents were being exchanged between the lawyers it was about i was not in the case at that time and petered out of it i mean the lack of responses to each other suggested that they there were some critical issues at any point along the way did you send a little note to the district court to say by the way we're still working on this no your honor and that's an excellent point because it's a really kind of critical point because as i read what's going on here there seems to be some kind of an assumption that somehow the district court should have been out there monitoring or demanding status reports or bugging you to find out what was going on and i'm not sure i know any basis for that but what i'm suggesting your honor is this is not a model case this is not a model instance of case management yes the plaintiff had a petition to enforce its consent judgment and the to mediation it was sent to mediation with the answer and did the results of the mediation whatever they were get relayed back to the district court there is nothing in the record to suggest that in the february two thousand transcript  record specifically said which was a triggering event for the briefing of the defendants rule twelve b six motion that the district court was going to await a report back from dean burns that's on the last page of the transcript and put it in our brief to our knowledge and is devoid of this and there was another deposition i want to go take a see why dean barnes if he did not report back to the court why he didn't report back to the court and why the court perhaps in managing its own zagat didn't contact its own court appointed mediator to the whole house is coming one hundred percent down on my client and that's why i'm here because i don't think that's why and who wanted the enforcement correct but we also had a dispositive motion pending against us which the district court  then bring for hearing because the district court the furred that twelve b six motion until the matter went to mediation so i would think i'm just surmising the defense counsel when settlement discussions for whatever in two thousand and twelve which is this bill and they would allow us to bridge found the opposition papers to it and mind you i think another important factor your honor is that the defendant filed a proof a claim in the exide bankruptcy for the very same claim they were making so they're following the bankruptcy so why are the lawyers sitting on the sidelines going monitoring the proof of claim in the bankruptcy court of x i technologies and nobody is calling the court i agree with  argument of unfairness it does seem kind of nobody tipped off the court that this thing it exactly right so why should one party bear the brunt or the brunt of that rather than the other party seems to be the nature thrust of my input i guess the answer is that if the judge needs to be tipped off in order to grant relief and one side grants relief doesn't the practicalities suggest that the party that wants relief is the one that needs to tip off record nobody else would agree but you get two parties one really sure you get the plaintiff who wants to force the consent judgment and you've got the defendant who has a dispositive motion pending so you get two parties that want relief and neither one of them are calling the court case just dies i guess and the friend likes it doesn't he doesn't have to do it the powers that do in the courts order him do it so so when you have a sit just seems like a logical i can't cite rules but it seems logical that if you have something that's just stalled as you say everybody's forgotten about it the lawyers have been replaced in the know but i don't really know why i'm just hypothesizing where something just stalls out somebody should tell the court you would think the logic would be the people whose who want relief in the case would be the ones who bring it to the court's attention and that's it for those of the people who benefit from having it stall out on our balancing who's in get the better benefit but i think both parties have an obligation to knock on the door of the court and that's fair but if the like you know you could say even if you wait fifty years it's both sides fault so we now have to litigate it or you could say we waited interminably it's both sides fault of course not going to do any well at some point i guess pox on everyone's houses but i'm focusing on the time period with the parties were at least to the lawyers we're talking the lawyers we're talking to the court but they were talking to each other so by direction of the district court so from two thousand to two thousand  anything at this point i can't take discovery but i'll accept that for the sake of argument this is a three year hiatus it's not ten years it's not twenty years it's not fifteen years because nobody is being kept in the dark except obviously the court because the dean burns then call the court the plaintiff than call the court the defendant in call the court i can't fault that that's part of the record is a theorized in my brief this is the case dates back before pacer because now with pacer you know courts are generating orders to show cause if you don't file proof of service you don't so i mean technology would have been a wonderful thing in this case but it did not exist in one thousand nine hundred nine it didn't happen in the eastern district machine to june of two thousand and four so i'd like to think that we had this problem from june two thousand and four and afterwards i would be standing here today because someone would have rung a bell so i stand before you today because under the four factor test which has been well briefed by everyone nobody has pointed to any confirmation conduct to my client other than inattention or in exhibit some of the cases that you have suggested as alternatives sanctions are dismissal without prejudice but i say i don't know what happens because it gets the case back at issue which is what this case should be so however we get there my client certainly going to be happy but i don't think my client should bear one hundred percent of the fall for the intake to vittie when it was contributed to by more than one person when my client the not engage in any kind to misha's conduct or with what so it stubbornly disobedient my client was never told to do anything by the court and it absolutely i mean that seems to be prosecute the case but we were prosecuting with the lawyers up until two thousand and six i agree with you your honor i mean we were told to go chop go to mediate and try to settle and i think that was following the court's direction that obviously was following the court's direction the concern that i have is the sort of the underlying assumption here that because the district court didn't have enough to do it should have on its own been following what you were doing or that the plaintiff or that the defendant who really wanted this almost to go away anyway ought to have alerted the court that this case needed to be pursued and that just that there's a logical gap here to me well i guess i'm advocating  in this post judgment vironment that we have in this case where both sides are seeking affirmative belief both sides have some obligation to you know take care of their own matters and there's a reason nobody did and i don't i can't explain that to you because i know the opportunity really drill into it it's unusual i've been practicing forty three years i've not seen this type of scenario where nothing happens on a case by the judge a mediator defense counsel plaintiff counsel i mean it hasn't ever four that's one of the forefront of lesser sanctions lesser saying yes in the less the less and less or sanction you're suggesting is dismissal without prejudice to avoid having the burden of this fall hundred percent on you but wouldn't that make the burden of a for percent on the other party because you say well we'll just come back and so all of that all of that delays is forgiven well that that would be the penelope lesser sanction i think the more appropriate lesser on such a such a date you have to appear in court to show cause why you have found the proof of service or your case will be dismissed you have to show cause why your case will be dismissed i mean there's a reason stated and that gives everybody relates some figuring out if after the order to show cause we get all the arguments that you're making today which is presumably what would be argued and i would add that that's not a lesser is that a lesser sanction is that well what i can what the listener if there's and if there's an identifiable lesser sanction i think i have trouble i don't argument but i'm not i'm i'm not seeing how how how dismissal without prejudice in this context is not a lesser sanction it's a nonsense well when you have already have a judgment and you're trying to enforce it within the period of limitations and it becomes an active and get them just ask and i can't really articulate one that on the only lesser sanctions that you're identifying are dismissal of them without prejudice or show or show cause all it comes to my mind is i stand here today because the case effectively it is over with the consent judge but no one party  of the party seeking relief nothing for big count nothing that counsel for big corrugated has said yet changes any of the dispositive facts in this case which is that first big corrugated be the strategic choice to allow its one thousand nine hundred nine petition to lay dormant for at least seven years and arguably longer and secondly something he hasn't that was lying dormant as well i'm sorry you had a motion that was lying dormant as well no i had no motion i should i should have clarified i'm sorry i'm here representing interven appeal two thousand and ten i believe and the reason for that is we were a good electronics is in the nature of a party being hounded by a bill collector who says you're liable for this debt that you don't think  you owe but if you don't pay up we're going to take you to court big organised been threatening to take my client to court since two thousand and two and in two thousand and nine when big corrugated finally popped up in district court they were the only party left i believe mooted this case but exide who settled the case in two thousand had gone into bankruptcy in two thousand and two that's why bake or get it was filing proof of claim so as of two thousand and two there was no defendant in the case to respond to anything big corrugated was saying but we were being hounded informally by big corrugated council saying when you should step into exide shoes you should agree to take on this liability and we said no in two thousand and two and two thousand three and two thousand and four in two thousand and five and finally in two thousand and six they corrugated realized that we were never going to voluntarily take over this liability and what did they do at that point absolutely nothing  a party an entity that's never been a party in the case i don't want to predict how that would occur but it would seem to me that all of the arguments we're talking about today would be just as true if  to you know doesn't have any liability because of the g and b well there are all of the intricacies of that that would be one of the issues we would raise we would start there that would be that would be an issue that would be developed factually judge friedman jumped to that point in his original original decision based on not a very complete record and and decided not to go that far in the second in his second decision but i also want to emphasize because you intervene you didn't intervene until two thousand and ten yet we intervene for purposes of of defending judge freedman's order on appeal that you intervene in the district court well yes the rules allow you to move the district court for leave to intervene for purposes of appeal and my recollection is the standard for granting such a motion is a little less stringent at the district court level than if you look at the district court had dismissed the head had issued a dismissal order big corrugated move for reconsideration again counsel for google inc an ex side had filed had notified the court that he no longer had a client and that he was not going to participate so the notion again that the main point here is there was nobody but big corrugated to notify the court of anything after two thousand and two no one was defending the claim after two thousand and two because exide had reorganized under chapter eleven had said file your proof of claim collect your money on the settlement and that was it the other point that concern if the plaintiff got a judgment there was nobody to get a judgment against what you're saying well there there certainly was no live party in the case at that time there were and i would argue there was no pending dispositive motion at that time because that dispositive motion was filed by google inc g n b on behalf of gold inc and they were gone so the note and i should point out that this is not a this is not a ruling on twelve b six b the matter that's before this court is under rule forty one for failure to prosecute the court did not rule on the merits of the thousand nine hundred positions it ruled that big corrugated had slept on its rights for you know very very long time and that constituted a failure to prosecute if this if we were to say there is a marginally lesser sanction which would be a dismissal but without prejudice what is gould electronics situation with regard to being sued now and the statute of limitations honestly ana we haven't researched that because the issue of dismissal without prejudice was never raised by big corrugated and i know it isn't but i'm just trying to figure that out so well old electronics wasn't a named party to begin with right just trying to figure out how big corrugated would be able to proceed against a like good electronics at this point in any of that well the last five years have taught me that  the district court i'm sorry the part of your opponent big corrugated just argued that the district court should think up some lesser sanction it did not suggest any lesser sanction it merely said you should have thought something courts said i did think something up because there isn't one that would do any good and i'm sure you think that's exactly true but on the other hand  in your mind is there some lesser sanction here no there is not your honor and that that's the issue that big corrugated has danced around here that we need to talk about which is prejudice that is the second of the four factors and in this case the prejudice prejudice that the district court corrugated property and at that point there was a dispute over whether all of the gold related contamination had been cleaned up because you see big corrugated continued to conduct industrial operations on that site of its own so by one nine hundred ninety nine the lead issues from hundred seventy three or big corrugated operations which had continued from seventy four through ninety nine that would have been a difficult factual determination for a court to make in one thousand nine hundred nine because at that point the allegations would have been twenty thirty years old the district court reasonably found that big corrugated failure to press its action had made that determination prejudicially more difficult for example in two thousand counsel for b corrugated identified seven living witnesses who had knowledge of big corrugated as use of the solvents in question had a list of eight but one had already died by by night by two thousand well during the time period from two thousand to two thousand and nine at least two of those seven witnesses passed away we know that from comparing social security death records to the names on the list there may be more because names are often common and you can't tell but we know that always to  security is huge numbers of people who are at least one hundred twelve years old so so so that's that's a reversible prejudice you don't bring people back from the dead to give you their testimony but secondly the court found that with respect to those witnesses who were still kicking their memories invariably about offensive if it hurt the fifty's sixty's seventy's eighty's their memories had invariably faded over that ten year period as well and thirdly the court found that since big corrugated had continued to conduct its own industrial operations from one nine hundred ninety nine onward the court's ability to figure out who is responsible for conditions that existed in one nine hundred ninety nine was probably going to be more difficult because now the conditions in two thousand and nine might not be the same as they were in one thousand nine hundred ninety so the court specifically found on the record that you're reversible significant prejudice that can't be remedied by a dismissal without prejudice because as soon as that case gets refiled the exact same prejudice is going to be presented the witnesses aren't going to be back the conditions of the site aren't going to be the same and memories aren't going to have gotten any better willfulness bad faith or fault that's the only standard that has been universally universally applied but all of the panels of this court that of her rule forty one be actions now different courts have suggested different formulations in sort of a variation on that with those generally reflect the very fact intensive nature of this issue and the varying fact patterns of those cases with those courts have also talked about is a clear record of delay you don't get much clearer than a strategic decision to suspend your claim for nine years or they've talked about reckless disregard for the effect of conduct on proceedings again a strategic decision to suspend your claim is showing reckless disregard for the effects of that delay is going to have the court has never required that it must be confirmation this conduct is indicated that that's one one example of the kind of behavior that would would support  a reckless disregard for the effect of the conduct and the and clearly would be corrugated engaged in here was reckless they they knew they were the only party still around they knew that the district court did know what had happened and they allowed the case to this is going to get thrown out unless something happens in this case which might be good practice for district courts to do every by well wishers you know let's say we didn't get that let's say that the court had done that would say that the court had done that the court had sent them off to mediation and rather than expecting big corrugated to let the court know if it still needed the courts involvement let's say the court had said no i'm just going to be proactive here i'm going to i'm going to check to see if if you have actually complied with my orders what he would have told what he would have been told is your honor the case is settled we reached an agreement we have a binding agreement the case has been settled the district judge would have had no reason to issue any kind of notice or warning because they corrugated went off and settled their claim in two thousand mediator would have said that's what the mediator would have said to in fact he was the party who was going to enforce the settlement that big corrugated exide agreed to that's why i believe that even before you talk the law with respect to that yes and i should also point out that there was no argument below by big corrugated on the notice prong they affirmatively conceded that there was no notice objection on their part they only decided on appeal that they were going to a certain new argument which is that they should have gotten notice so applying this court's this court standard for waiver none of none of the factors are satisfied here where do we find in the record  big corrugated to provide both briefing and evidentiary evidentiary support the court has sure any deficiency of notice in the case that's i believe in their principle brief on remand and it wasn't until it wasn't until they got to this court that they decided that was not a good argument not a good position to take but beyond that to if i could answer judge rogers question regarding the notice issue if you allow them to avoid the waiver rule in this case and argue de novo to this court you still uphold the district court's judgment because notice has never been an absolute takes into account at least with that that they are not and you can say it's their fault without saying there was factors start to balance a little bit well nothing about balances the prejudice that occurred here that's irreversible that can't be cured and i would argue that i'm not just arguing fault i'm arguing clear record of delay and con and reckless disregard for the effect of its conduct but keep in mind what the supreme court said in link about notice there was no notice provided in that case and what the court said is notice is a can text or will issue you have to look at the facts and you have to make a determination of the extent to which the party could have appreciated the circumstances and could have appreciated  whether its conduct was acceptable or unacceptable and that's the that's the test that would be applied if you allow big corrugated to argue de novo on the notice issue and i would argue that this is not a pro se unsophisticated pla is experience litigators saying you know what we're not going back to the court because we want to see how the exide bankruptcy turns out and while they waited to see how they excite bankruptcy turned out witnesses died memories faded conditions changed they haven't given you a compelling reason for why the district court district court abused its discretion i mean i have yet to find a case in this circuit where this court has excuse seven years of will for i respectfully request that this court affirm the judgment of the district court either on grounds for failing to prosecute or article three mutinous since the claim was settled in two thousand thank you others let me just talk about the notice issue because it's just keeps coming up in two thousand and nine yes we did say we had notice of an opportunity to file briefs with the district court prior to the first appeal on the issue of rule forty one the record is what it is and we said what we said we didn't say we received notice that litters there was a sanction of this missile the record is abundantly clear that the first noticed the ba that is the very first time the district court threatened the same ssion of this missile two thousand i am the court as the defective notice condition but not afford to stressful for an opportunity to respond the rule forty one we said that in our briefing papers the threat of dismissal didn't come until after the first remit that is the record and we say that in our brief i mean i could argue it further but but that's the way we presented it literally says is that by setting a briefing schedule including the issue of whether this case should be dismissed pursuit of forty one b the court has cured the defective notice condition present at the time of its pre prior decision clarify what we said in two thousand and what we say in two thousand and twelve but my recollection is the word dismissal in the us is from the court did not come until after the first remit secondly the issue of gould no question gold inc has reorganize itself out of existence that is an issue that we want to pursue if we get the opportunity for remit in fact when gould inc was dissolved in in that in one thousand nine hundred ninety four gold inc still signed the consent judgment even though they didn't exist that's part of the record good electronics signed the consent judgment in one nine hundred ninety nine when they filed their rule twelve b six motion gold inc appeared by mr or they're still holding themselves out as being somewhat in existence when they're appearing under that name they never made any effort to substitute their name or substitute another entity in the case so that's the shell game which is the mood issue which is the they want to take the position that there's been an ovation and therefore if you made a settlement with x it's over but you can't have moved this until the court decides the issue of the ation and that's something that this court has panel remained to back on the first time the district court elected not to do with respect to the witnesses that are unfortunately no longer available what's not identified here is the fact that the testimony or the information that they would want from those witnesses they don't  they would get those witnesses would offer that is no longer available to them if there is witnesses around that still remember if their business records and documents are still around that would corroborate this isn't a criminal case where a key prosecution witness passes away and then there's no case or some degree of prejudice but the point is google does not offer what how they're prejudiced and what they're not going to be able to defend against the case agreed that our scope of review of the evaluation of these four factors is abuse of discretion yes and lastly in response to defense counsel's theory of what the team bars might have reported to the quarter might not have reported the court i think that is conjecture i think it's speculative i'd certainly like to know what he would have reported but it also cautioned the court that the outline a settlement that was signed in two thousand required the consent judgment to be amended and it never was thank you thank you counsel case will be submitted