stipulation of dismissal under rule forty one can function as a rule fifty four judgment for purposes of an attorney for the motion alternatively the district court found that  holding was precluded by the supreme court in microsoft v baker and appellant believes that that conclusion was in error i'd like to focus on three points three reasons why microsoft v baker secondly that a ruling in appellants favor would not be inconsistent with the law on per prevailing party determination specifically the  catalyst theory that the supreme court rejected in but can a board and rd that and ruling against appellant upholding the district court would create inconsistency is and competing incentives with state law as well as the circuits let me ask you a question yes it certainly is about fifty four dollars and maybe as a kind of threshold what do you make if anything of a contention that fifty four d is merely a timing rule that it doesn't actually require there to be a judgment  for the filing of an attorney's fees request it simply says if there is a judgment then you have fourteen dollars days to see trees and idea perhaps supported by the reference in the advisory committee notes to the permissibility and the committees intent to not disturb the practice of filing fees motions before there  honor i agree with you certainly it's the carries that such a motion can be filed before a judgment i think the plaintiff in this case the telly has argued that the stipulated dismissal is two final in a sense and divest the court of jurisdiction i think the court the district court disagreed with that so i think the contention here is that a stipulated dismissal is a sufficient judgment but if it's not a sufficient judgment then i agree with you that there would be no bar to filing such a motion anyway well a judgment is defined as i guess that's the question your honor is what is a judgment that's that's precisely that that the subject of this appeal that's correct your honor i don't see anything in rule fifty four dollars that excludes a stipulation of dismissal from the definition of judgment and i believe that's what the th circuit determine it would be a judge limited and decide something that's circuit decided that a stipulated dismissal is a judgment and so the question of whether judgment is required or not opinion says states it says it's a requirement   whether it's required or not it's sufficient and so it's being all come sort of a common man in the street definition of judgment not a legal definition brewing party for the state well your honor i can give you my understanding but st let me say that be prevailing party issue was not appealed and that is why we didn't address it in detail in our briefing the only issue that was appealed is whether a stipulated dismissal is sufficient rapidly others the other side says in response to your appeal you say the district court has to really only the contract lame that's the only live your claim because all the others the judge said even if i could reach it i wouldn't give it yes so just the contract claim of the judge says i would find prevailing party but i can't because there is this fifty four d problem and you appeal and say there really isn't a fifty four d problem and the other side comes back and says st yes there is but in any event you really are not a prevailing part and they're entitled to do that  so and they note aspects that they make interesting criticisms of the district judges ruling that you are a prevailing party including by pointing fifty four the oddity because prevailing party status for a state law claim is a matter of state law which suggests it's a matter of oregon law which hasn't really and he didn't file a reply brief to respond to the other side's criticism of the district court on that point your honor my belief is that the district court did reach substantives state contract law to decide that prevailing party question and under the substantive law were again a dismissed party to a contract claim even without prejudice is a prevailing party and that is what the district court held if the court remains that question i believe that's what the district court will find again but i believe the court found that already substantive which is to say that would apply in a federal court diversity or other action your honor that the case stands for the proposition that it dismissed defendant to a contract claim is a prevailing party as to whether the prevailing party is entitled to fees that question is also reached by the court which concluded that if the contract has a fee shifting provision then the prevailing party is always entitled to fees and in this case the contract did have a fee shifting provision and that is why the court concluded that the defendant would be entitled to fees other than this microsoft be bigger problem so the