underlying case involved widespread pesticide contamination at marine corps base why it was played as a class action and was ultimately settled on an individualized basis that's important because there's no there's never any doubt that there are other claims essentially waiting in the wings that would have been filed if class was denied or of class all told he was not granted following the settlement a settlement agreement was reached and as is the normal course you would submit that as part of a stipulated dismissal what makes this different is that stipulated dismissal the original one was denied by the district court he sent back a letter and said under the supreme court precedent of coke can and this court's precedent of a raga there is no and does not want to have ongoing jurisdiction over settlements in this case and so asked and this is important for precise date when jurisdiction of the district court would expire and so the parties came back together we drafted a new stipulated dismissal and that's exactly what a precise date when jurisdiction of the district court would expire that date was august twenty fifth two thousand and sixteen it was roughly six months after the execution of the settlement a few months after the summit was executed that's when the and it doesn't make sense at that point to engage and sort of extended proceedings the contemplation certainly of the parties typically with respect to enforcement of a settlement agreement and once i've personally been aware of the ones as well as me the case law enforcement is along the lines of payment of the settlement proceeds someone doesn't sign the settlement then you might need some kind of motion to enforce some specific term that you have to do this is quite a bit different this is where  y for city the defendants were using the settlement to try to police barber speech after the settlement well there was a confidentiality provision there was your honor but there's also within the settlement agreements paragraph seven w protected her first amendment rights to work on this issue of widespread contamination on the base with other families as well as with the state and if you look at the specific terms or the specific kind of speech in comments that were being made by barbour yes with respect to the settlement of an undisclosed amount that's the primary basis the court said is a breach could argue did you as a favor just explain to me the proceedings in the district court once they begin to initiate this foreman or when they begin to initiate this request for relief yes your time and so when did they filed the motion for a pulmonary injunction the motion was file it would have been fifteen to twenty days i don't have the precise date and then the district court schedule the hearing or the district were then scheduled several hearings five days of hearings they were half days in the morning ok and when did she finish with the hearing what was the last date your honor i don't have the exact days of the hearings well let me ask you this to be precise was it before august twenty five it was only sixty six she finished the hearings well frankly wanted to say that she finished what happened as they were partial hearings in the court make clear that what she wanted to rule on first was the confidentiality issue this issue of breach for defamation present will still have future hearings at some point although there was a lot of testimony that came in a ruling and the district court took the view that the deadline meant the window of time within which the defendants can bring a motion and so she clearly thought that she had authority beyond at that time  to rule what's wrong with that interpretation so i agree that she did clearly believe that was wrong with that interpretation is well i mean she said that august third which is a good twenty plus days prior to the expiration p view articulated august third what is wrong with that interpretation clearly violates sprinkler precedent of coke and which is jurisdiction over settlement agreement does not mean jurisdiction over the underlying proceedings they are separate court you just say you're going to need to have jurisdiction for ever essentially or certainly for a long period oversee the settlement settlements are written like that all the time in many of the cases frankly all of the cases cited in the answer in brief are those kind of cases on the other to the court having jurisdiction until august twenty sixth so the district court says ok i recognize under coconut that i don't have jurisdiction without the party stipulation here i do have it i do have it i'm exercising jurisdiction i'm just not going to rule until whatever time i'm ready to move because apparently the district didn't think that there was any binding authority to say that once she  she would lose it on a date certain so is there any authority for the proposition that once the court has jurisdiction pursuant to the parties dismissed or stipulation like in this case it would lose jurisdiction by that date certain high and we participate it you don't have confidence in being able to tell the judge politely by the way just to remind you judge you're going to lose jurisdiction over resolution and what we specifically said is what makes sense again for that six month is to enforce the signature pain of a settlement check that kind of thing but an underlying breach action is an animal and under state law why and it's clear interstate law why that the breach of a settlement agreement breach of contract is an issue for the jury in particular issues that concern breach of material nature those kinds of breaches should go to the jury and that's why it makes sense frankly within that six month i trying to enforce the breach absolutely not and i think that's the most important thing here and even if we don't talk about anything else at the prejudice of this on defendants is not instead what it does is it follows the court's precedents of coke in iran and it also legitimizes and recognizes the jurisdiction of the state court of her breaches of contract and absolutely they can they can go and pursue a breach for defamation of breach for confidentiality in the state court against our client where by the way we will have a jury have the ability to assert counterclaims an affirmative defenses such as materiality and also have really to challenge witnesses through discovery and bring in witnesses rather than an expedited evidentiary hearing that only involve testimony from miss parker and a hired contractor by four city and that really gets to later in the briefing irreparable harm arguments of a mediation to man the argument that that's the irreparable harm simply doesn't cut it irreparable harm is when you don't have some adequate remedy here where families are exercising their legitimate contractual rights under the lease for mediation i just only problem here is she didn't file her order until the day after so you know that's how it's phrased well that's what it is really disagree your honor with respect to that on one hand well for example it had that order the jurisdictional pieces based upon that day and certainly the court stated intention that these hearings will not be repeated and essentially she's going to march forward without injury to a permanent injunction which we also think is to the m parties of what they've agreed to again the o'connor versus colon and highest that this court basically recognizes in august that is where the court said i'm going to be the czar over this settlement i'm going to oversee it and make sure i enforce it what they do later on should be relevant i think in this case that what takes it away from that analogy is that there is not an equal bargaining position at the table i cannot walk away from the district court compelling my client to fly from florida to attend hearing jury that disagreed with the way the proceedings were going repeatedly made that objection to the point where frankly in these kind of proceedings there's a point at which when you continue to challenge the court you lose or risk your client's best interest and so it's not an equal bargaining position frankly or on here specifically there is if you wanted to look outside the plain language of that stipulation we have a letter from the court if that were relevant which  i don't particularly think it is but the court says she wanted her side a state when jurisdiction would expire so i don't think a the stipulated dismissal is a big u s and if you look at the actual the opposition i the morning hours may please a court my name is randy one of i'm here with lisa monger we're counsel for defendant a pelleas the trial court's order should be affirmed because the court had jurisdiction under kukkonen vs guardian life and because the court your honor under flanagan b r nase the ninth circuit has ruled that where a court retains jurisdiction like the court did here that that's exclusive jurisdiction and i can quote from flanagan it says the reason why  exclusivity isn't for is that it would make no sense for the district court to retain jurisdiction to interpret and apply its own judgment to the future conduct contemplated by the judgment you have a state court construing what the federal court meant in that judgment by which the court's jurisdiction would expire and so did the district court when the district court sent that letter out to the parties it specifically said that give me a precise date upon which the courts retain jurisdiction over this matter would expire and the stipulation tracked that language to say that by this date the court stipulation would expire and the district court signed that so it seemed pretty clear up until the point that you brought the enforcement action that everybody contemplated that by august twenty five twenty six whatever that date was of twenty sixteen the court would no longer have jurisdiction so given that record the birch the court to rule before the expiration of  august third if you search the court wait a minute just to be safe can you read a ruling before the expiration of the date and if you didn't do that why not we didn't do that your honor i think this goes to judge fisher's point we didn't do that because none of the parties believed that that was the case judge gilmore made it very clear that her interpretation of the order and her intent in inserting that language into the order was to create a window and a district court is provided broad discretion and interpret her own orders when she made that point in june that's how the parties operated under and i think that respectfully your honor i would disagree that the plain language of the done recently we've resolved within by my august twenty fifth well your honor it uses the term result but it says it doesn't say to resolve and to file any actions but your honor it doesn't say that the the term resolve comes after the six months and after the date the court what the court said it intended by having the parties add this language was that it would create a window within which to resolve so if you bring the dispute or action within the six month window the court then has jurisdiction to resolve the matter well what's the limit there because the district court essentially said six months is the window with which i can reopen the case but once i do that there is now no longer any limit at all whether there is any limit the court has discretion to manage its calendar that is a firmly established idea in our jurisprudence it has to have that discretion to manage its calendar whether there is some outside limit here the court was i think plainly acting within that discretion when it opened up the proceedings in the way that it did here and if i can i think it is helpful to kind of walk through the procedural process that occurred here because it shows why the court must have that ability to reopen up its proceedings we filed our motion for preliminary injunction initially on june sixth two thousand and sixteen over two and a half months before the date and that stipulation in order the court had the first conference on june twenty ninth two thousand and sixteen at that conference defendants sought an expedited process to resolve the situation plaintiffs requested a because their attorneys were traveling at the time the court ultimately set a briefing schedule with a hearing on july twenty fifth which would still be one month before the date in the stipulation in order but in the july twenty fifth hearing the court determined for the first time that it would like to conduct an evidentiary hearing the court also ruled out that hearing that if the case was reopened with no limit on the amount of time the court would keep the case open the court there that's what ever concerned with and i'm trying to pin you down there there isn't any suggestion on this particular factual record that you didn't act diligently or anything like that i think the series of facebook post was made then i think defendants acted fairly promptly after that i'm trying to by stipulation and the court says well ok well you moved a couple of days before so i'm going to now we open a case and i'm not going to set any time limits on that i don't see how that comports with the parties expectation when they negotiated at that point so so that's why i'm asking about limiting principles because then the court would essentially reassert jurisdiction preside over the settlement for so long as the court wants to essentially unfortunately i don't think this is the area of law where we can have a clear bright line time limit type rules this is a situation where the trial judge who's overseeing the particular proceeding has to have discretion to shape that proceeding in shipshape time limits for instance here we have this evidentiary hearing it begins on august fifth day three is aug tenth and the court announced that august twelfth would be the final day of hearing then on august twelfth plaintiffs failed to produce the expert witness saying they were unavailable so the court reluctantly granted an extra day of hearing the aug fifteenth then on aug fifteenth plaintiff was unable to complete their examination of their expert witness in that situation the court determined that the best approach was to grant these extra days given the previous sittings that were occurring before it if it hadn't done that i think we'd likely be hearing a different argument from plating we'd be hearing that they were denied due process they were permitted to put on their expert witness the court has to have that power within reasonable limits to control its calendar and i think that that's viewed into the abuse of discretion standard and i think  and there's no way we're going to finish a jury trial by august twenty fifth two thousand and sixteen and i think that's the manner in which it was raised it wasn't raised and you know we have to have a final order by august twenty fifth it was raised and hey i think because under due process i get resections it did not ask for any specific damages i believe we asked for attorney's fees as sanctions for bringing the motion so we were asking for an order to show cause re saying sions but what's important on that issue your honor is  is grant injunctive relief and no court has ever held that in that situation plaintiff or a party thought to be enjoying is entitled to a jury trial i think that you know on the due process argument that was raised by played if they say due process was violated and we should how to jury trial because the district court stated it intends to grant permanent relief against miss barbour it intends to grant damages in the future those assertions are based on a few paragraphs of colloquy between the district court and between plaintiff's counsel but in appeal cannot be based on color but when there's not yet been a final order what the district court may or may not do in the future cannot be the basis for think you could your honor should have violation of a court order at that point and then she would have been the sort of ancillary jurisdiction i guess i think the result of any contempt proceedings that's jurisdiction of the complaint or did she just miss i think she may have misspoke i understood what she meant and she addressed this issue on two different days in late june and then on  august third i believe august fifth and i think the first time what she was saying is she was saying look my order creates a window not a cut off that's how this language was intended that's how this language should be interpreted and on the second day when she addresses she w say look even if even if you believe that the order was interpreted be interpreted differently i'm going to reopen that particular deadline i don't know what she meant by reopen jurisdiction i think she merely meant that she was going to take out that deadline to let the parties could appropriately address these claims to have been brought before them in appropriate allowed appropriately allow the parties to put on their respective positions you talk a little bit about  harm what was the evidence of irreparable harm i think your honor there was significant evidence of irreparable harm in this case first there's a substantial body of law that holds that it is irreparable honor there were certainly those statements in addition there's plaintiff's old agreement in the settlement agreement that this conduct would constitute irreparable harm what's really interesting about this case is because it is on social media you can show irreparable harm in a way that's sometimes not available to a defendant here what we can do is we can look at the actual responses of the people following plaintive to the statements that she was making so for instance on may fourteenth two thousand and sixteen she that's correct your honor but it's important the way that she put both of those statements together because what she does would you put those two statements together if she's implying that there was merit to the claims that she brought so she says i brought a claim for hazardous contamination all across marine corps base hawaii hawaii and i got this monetary settlement when she puts those two statements together it implies that there are these hazardous conditions across marine corps base so why when they're absolutely or not that i incredibly damaging to defendants goodwill and to its reputation and what we can we don't just have to rely on the judgments as she shall not include the for an undisclosed first off your honor there's been no appeal of the issue of whether miss barbour likely breached the settlement agreement that's something that's not on appeal before you today so that issue was a stablished at the lower court  what she did when she made those statements is it wasn't just that she said undisclosed amount she said that at the same time roberson referencing what's known as basic allowance for housing which is the stipend that military service members are provided to purchase housing on the island and for many service members that is a very substantial amount ranges from twenty five hundred dollars a month to forty five hundred dollars about the pentagon your rank so when you pair those two things up it implies to folks that they're going to get all of that basic allowance for housing back and that's actually what the individuals following miss barbara's blog read in response to that may fourteenth statement i read we can look at what her followers said tashi stated i'm definitely looking into this wayne walter then stated just email the attorney missy law then replied i emailed him to then jackie davis dated two hours later i'm sorry an hour and a half later that's a lot of money so clearly this message was being conveyed to plaintiff followers that they should contact the attorneys and that this was the type of settlement they too would be able to obtain i see that i'm running out of time your honor but as of the time of this hearing we had received one hundred over one hundred demands from different families across marine corps base why encouraging that type and that extent of litigation is exactly the type of irreparable this confidentiality provision was designed to prevent ok thank you counsel court should retain jurisdiction for six months and print the season until august twenty fifth two thousand and sixteen to resolve disputes or actions related to the agreement for cities motion however seeks to enjoin mr barber speech in advance of bringing claims against miss barbour for breach of the agreement and or for disparagement such a lawsuit would require a new complaint extensive discovery to resolve the disputed fact related claims for negligence and defamation and cannot be accomplished within the one month that remains under this court's jurisdiction further this court's original exercise of jurisdiction was predicated on class action fairness act paraphrasing now checking out according plaintiffs respectfully suggest this mandatory injunction for an order against miss barbour in advance of litigation would be a more appropriately brought in state court where such an action must be maintained we clearly brought up that's when  district court judge stated that she wanted to she had the authority to reopen the underlying litigation again that clearly is not the case under under the precedent and so i just wanted to make that clear with respect to more the  on the remedy section as far as what the relief is there is a comment made that this isn't the place for a bright line rule i respectfully disagree i think in terms of subject matter jurisdiction of the district court it's absolutely the place for a bright line rule and it's one that already exist it's if it's granted in the stipulate dismissal and it's there and if it's not then it's not and that's essentially the rule that we were operating under already and so this idea that by granting jurisdiction for six months and it sha