the judgment was a sanction judgment in essence i call it a failure to prosecute the judgment of the district court below was considering the application of this court's decision in the community dental versus tiny percentage of this court's remained order and that matter was briefed and decided by the magistrate judge magistrate judge cook against us therefore we took this appeal on this appeal the question of the attorney's gross negligence as exceptional circumstances under rule sixty six for setting aside a default is not an issue the district court found in our favor on that issue found that there was gross negligence and there's been no cross appeal on that issue therefore the only issue as i see it appears to be the culpability of the client issue or the culpability of the plaintiff issue and that's where i'd like to turn now unless the court has some questions about the gross negligence issue tony says and it really says nothing more than the culpability of the client may be an appropriate consideration to deny a rule sixty six motion but tony does not set forth any factors or criteria or bright lines if you will to consider in making that determination at one point in the proceedings leading to the  default judgment and mr madsen was sanctioned for dilatory tactics or something i mean he was not and or the attorney that he was personally sanctioned correct correct case there was an effort to make him co counsel but that's not possible and under our local rules the magistrate judge denied that request and made mr sherman counsel of record mr sherman was therefore the only person  i don't know what you really filed papers saying that he was co counsel i don't believe so your honor i could be mistaken on that but i have scoured the record i'm not familiar with what you're talking about but the last thing that i know about where there was a co counsel thing was where he was a captain of the ship there's no question about his gross negligence on this appeal again the question is moving forward in time from the point we've just talked about in terms of well is he co counsel or not that's a factor that the that the court below considered in terms of well he it appears from that or the district court apparently assumed or presumed from that fact alone that he intended to take the laboring or on the case but there's nothing in the record to indicate that he took dispute that they had notice no dispute in no dispute that both of them failed to appear that that's that's fair your honor i believe at that hearing if i understand correctly mr spencer made a motion for a motion to dismiss the case you're going to any substantial evidence in the record to support that factional fighting for instance the factual finding i just spoke about is there anything any substantial evidence in the record to support the finding that he was somehow unknowledgeable that again that he somehow was taking the laboring or judge she saw that these signals that he himself was involved with somehow triggering an obligation on his part to do something more like that what more that is we don't know we know he tried to retain another attorney unsuccessful we know that the tween that time before that time and after that time he received assurances from orally from mr sherman that the case was proceeding smoothly that everything was under control how can you fault him with respect to the not being served there's no indication that that ever became a serious issue i mean as far as the client is concerned perhaps mr sherman has more knowledge about that being an issue but the client there's no evidence the client had any inkling that that was a problem he thought it was taken care of plus oral sure it's just like insanity from the attorney that says everything is under control don't worry about it so the question that this court is presented with is where do we go with this this language  find out the status of the case and to answer your question this did happen during that period of time it was a year after after the letter that was written by dr masterson magistrate judge atkins when he says in his affidavit that mr sherman statements that he was not getting satisfactory answers from paul sherman again and again over a period of two years he took no action to protect his interest and the magistrate judge phyllis hall's reacting stated before tony came out that he had a needs to fashion a standard that says that so has to be reasonable diligence on behalf of the client to protect his interests otherwise he should not allow a rule sixty six motion to be granted and other words we have to go beyond townie or do you think this is covered by tani i think this is covered by charlie your honor we're talk we're talking about here and i think opposing counsel stated we're talking about what level of culpable conduct what this culpable conduct entirely mean and we breach the issue with citing from the cases relied on entirely to talk about and knowing client and innocent client a client that doesn't have any role or any understanding of what the case is entirely as it went into the spectrum heelers about it just  dismissal on the day when he gets that he learns that the case is gone he had no weakling other him no information except what his counselor told him that everything's going fine thoughts are for a client in the future under your theory of the case to protect himself or herself from this kind of them the best thing to do with me to tell the attorney theone said don't tell me anything is going on in the case i don't want to have any involvement in this case whatsoever just tell me wh assistant she asked paul sherman to refer him to another attorney your honor at some point in there because reasonable for the client to pick up his own interest and protect yourself because failure to do that in this case has now set as with a claim for to communicate with a client you could have gone to if you didn't go to another attorney but he did not pick up his duty at that point to say what do i do i need another attorney he said he went to paul or to mark miles or rich and he's a civil rights attorney in reno himself at some point a reasonable person goes in status and if i understand your list of these things that he did the client it's number one and filed a complaint process a that's on the list right there sure are and that when he comes in and says i have a constant gotten any satisfactory result for my client for the last year and a half for my charity for the last year and a half think that would have been a state bar complaint that on our list is failure to file a complaint with the state i would say that was one i guess one way of looking at it is this couple conduct requires the plaintiff to be an ostrich or a gorilla when it comes to his lawyer stick your head in the sand and let the lawyer take care of everything and therefore you're not culpable because you don't know what's going on or if you exercised some motive of diligence in trying to ascertain what's going on i've supplied you with the very answers what's going on well those weren't properly served in a timely fashion but in that very conversation he assures them that everything's ok and then he says in a few months later he says what's going on here you refer me to another county everything's ok in december he gets another assurance that everything's ok april there's another conversation in the in the summer of ninety ninety nine he tries to hire mr mouser mr mouser it won't take the case he writes to the magistrate of his own initiative in november of that that was it never got amended by the work of the lawyer it will when i get back out and guarantee that i think that the that's one of the things i point out of my brief that if if if the filing of the complaint is an important fact for the district court to consider