represent appellants we simply tried to dismiss this case with prejudice and found ourselves getting sanctioned rule four thousand one hundred and eighty two does not allow a restrictive condition on non parties judgment just can't be bound binding on parties both class members future class members as well as attorneys are non parties the both sides both sides of this case advise judge  is his purported order was not supported by the law but he perceived it anyway dismissal with prejudice is pretty simple and there is a provided limited simple option of attorney's fees with prejudice context was not an exceptional condition warranting attorney's fees this court has also found in the voluntary or in the in the dismissal without prejudice situation th filing a nd suit even if your intent is to try to obtain a tactical advantage is not sufficient to constitute legal prejudice invoking conditions be placed on that plaintiff judge spontaneous those are his words not mine he provided his own rewrite rule forty wanting those conditions not only on myself but any future proof plaintiffs that i may represent against on the merits to gain class serve occasions so class certification is a little bit of both so there would have been some discovery that would have been useful as to the merits later on it would not have been completed placer ation but there was no motions for summary judgment or anything of that nature that this court filled in the church mutual insurance company versus salt lake city west wing church that there is no trial preparation just k now influence my train of thought because you went beyond i'm sorry that's it you're not challenging the nd provision of the court's order saying that the discovery should not be repeated if claim of counsel brings another action is that correct that's correct your honor and that would be true because that discoveries available to the defendant and hopefully would be available to the pla anyway because discovery is not lost the man who got it clear please why do we have to decide this now you haven't come forward with any thing to suggest that you've got another class representative and that you're about to file an action and that you have some imminent injury that you're facing well we have present injury because we won't be able to represent crawley royalty owners not with this pending order sitting out there that says one you've got to come back in front of judge wire it was also divinia i mean what you say we won't be able to i mean have you tried to have people turned you down have they gone to different lawyers i mean what is the evidence are that you've put forward to show that you have standing now to bring this case yes the the standing now would be that there is a sanction against my my firm so that i can proceed there's also an order that says in the event that we do the plaintive would be subject to protein surely a one million dollars in attorney's fees that really closes the courthouse door and is present interest as to my per seeking any kind of ability to go forward with the crawly royalty owner of course we couldn't present evidence book or the order came down or before the order became final we would only be able to some submit that type of evidence your honor is mentioning after this order came down and yes i have spoken with crawley royalty owners and they are not willing to go forward in this context the reason i would speak with croyle probably royalty owners is i already have substantial information about the wrongdoing that probably has been engaged in probably is not concerned about the waste of their time or the will discovery they're concerned about being sued begin by literally by me because i tend to sue some of the smaller defendants that other class action lawyers were not will not pursue and so having them approach me and i have to advise them i really can't represent you because you're taking on a significant risk of attorneys these issues because of this order as the sanction i would suggest that they look elsewhere they have been unable at least as far as i know to find any other counsel because no other cases have been filed against probably to my knowledge probably would probably know that better than hiring with respect when i ask a different question if we were to dismissal or to impose other conditions or maybe to postpone the decision until the court rules on class action or other pending motions so my question is if we review that this was wrong what is our remedy and what you think we are precluded from considering going to remedy well i don't know that the court is precluded necessarily from considering very many remedies the one i would suggest is the one that you followed in the overlander case which was simply to rule and not remand the case and this case that would be a dismissal with prejudice in the case there's no further remained necessary in the event that you were to remand this case we would ask that you remand it to a case that hasn't already shown that he's going to be against the plaintiff and against in particular my firm as to how the outcome might come out so either way that would be options of the remedy that we would suggest you take and the rd remedy would be a remand of this judge and say you've got to act reason we probably on the on the request to dismiss but if there's other pending motions that from a judicial efficiency point of view are ready to be disposed of we're not going to preclude that would you challenge that is an inappropriate remand well after the length of time that has gone this  by discord in two thousand and nineteen now shows the way for class certification we had a chance to supplement that briefing somewhat but we don't have the full updated discovery that would be necessary for class certification there has been no ruling on class certification we would need to get any additional leases gas contracts implant statements that crawley has now granted that would not be substantial because they've already produced most of that information and it doesn't change greatly over time but there may be also nuances that would want to we would want to explore with respect to for instance the sunoco case that recently came out of that allow punitive damages under the energy litigation reform act that case went to trial over one hundred million dollars was the verdict and i think that case is now coming up to the th circuit as well so i think it both sides would probably so  and you could say just take the case whole and and you should we say you need to rule on the motion to dismiss immediately before you do anything else and if there is still record issues open you can't pursue them to resolve other motions before you go with a motion to dismiss or it could be remanded say if you are far busy down the road with these other motions you can bestow new ruling on the motion to dismiss until you take additional evidence and rule on other motions that have been pending for you for a long a your honor i would suggest the former approach should just simply rule on the motion to dismiss there's been no evidence that the court or anyone else was far down the road on class certification plus that briefing is getting somewhat stale you know addition you have at this point a plane that if you were going to go forward with class certification the property some issues with respect to his health that was not what it was offered in camera but was not accepted so as a result he may not be an appropriate class representative go forward on behalf of the class or class action that may go for another two or three years up to the new class representative then without  a you certainly could assuming you had a class represented that was willing to go forward under all of those circumstances royalty owners generally are in the seventy to eighty years old range they're obviously going to be wanting to know what's the prospect whether you're going to be certified as a class and get through to the merits and and i should address the question i'm not suggesting that judgement wiring is biased i'm suggesting this may indicate in an appearance of impropriety that you should move the case on to someone else i think it's a much harder burden to prove bias and the fact that senator whitehouse may have suggested that and that may be in the public domain does not necessarily make it true what's with respect to the issues of legal prejudice or as the court has said substantial or clear legal prejudice this court could look at the four overlander factors judge wire it certainly did and i will address those internal though it's not crystal clear to me that they apply with respect to a dismissal with prejudice the st one being crawley's effort and expense preparing for trial as i indicated and maybe overstated my over overstayed my welcome on that question this court has ruled previously in the church mutual insurance case the trial preparation of discovery and even a motion for summary judgment is not sufficient to trigger clearly go prejudice and really the crawly here is not concerned about that it is it's got effort and expense in preparing for the trial or even preparing for class certification what it's really concerned is there that that will not be wasted time and that there will actually be another case file  discovery that's not going to be wasted it's stored electronically and can be reproduced at the push of a button legal briefings the same way what probably fears as the merits there's been more than a one billion dollars recovered by royalty owners quote home alone so these cases are not frivolous these are not a nuisance value settlement type cases they are real cases plaintiffs lack of diligence in this case there's been no evidence of that really not even allege with respect to the insufficient explanation for dismissing well legally but the issue is whether the dismissal explanation legally prejudices crawly certainly that doesn't happen here as i indicated there was issues with respect to health which is usually something with respect to the court is not acquired to be publicly stated just wire it instead of going down that path decided to jump the tracks and go to this issue on forum shopping and i do want to address this briefly because i think it is definition is quite frankly wrong legally i think the th circuit in predator international versus outdoor established that improper forum shopping as opposed to proper forum selection improper forum shopping is when quote a party attempts to avail itself of a forum it perceive to be more favorable without any legal or factual basis for doing so thereby causing unnecessary delay or needlessly increasing the cost of litigation unquote that case i think sets forth the proper standard for what is improper forum shopping versus form selection form selection was used so your rep this is your time is expired i'm sorry your hon i will wrap up and ask that the court consider the remedy in overlander and simply just dismiss this case with prejudice thank you your hon and that baggage is already declared and already decided to step in hypothetical or future about it that they could just been put on that jury shoulders and i don't know how you could say i've heard if i have to travel my professional career with an extra load that you put on my shoulders right now yes or not or so let me address that in kind of two faces one i want to start with this idea that what that the conditions that judge wir sanction that hasn't happened here and so without the sanction to rely upon we're back to win or rule forty one a conditions of dismissal appeal and this in courts can with there and be continued discovery because the rules deal with those that just just deal with the restriction on the attorney that if the attorney is going to file you telling us that while in this particular district would be in the northern district of georgia the th circuit in that case dismissed the case and said that that mean you restriction just preserve the status quo and requiring a case that was properly in the northern district of georgia to be refiled in the northern district of georgia was not the kind of legal prejudice that gave the party a right to appeal right then so to hear the case was originally and properly removed they sought dismissal race counsel after subjecting call it a substantial expense wants to run out of court and go bring another lawsuit in another form i agree with mister sharp that if that subsequent lawsuit if there is no basis for subject matter jurisdiction in that subsequent lawsuit the judge wire explorer can't supply subject matter jurisdiction for that subject was the judge were the district court's order limited his conditions to lawsuits that were substantially same as the duncan franks lawsuit that was brought that would include lawsuits within federal courts calif a jurisdiction and so yes there is a a restriction that if mister sharp and his colleagues are going to file substantially similar class action against crawley that that be done in the western district of oklahoma but that is not the type of legal prejudice prejudice i mean frankly we have no idea how judge why rick is going to rule on any of these issues he's a newly appointed judge he's a blank slate well he w the blank slate but but there's been some prejudice and if if the concern is that well the plaintiff is not going to get a fair shake in some other court i mean murder isn't going to get a fair shake in the in the western district i just don't think that there's anything to support that actually let me let me get to the heart of the order what was the purpose of the or why impose any restrictions at all on the right of mister frank to have worthy of a right mister frank to dismiss his case with prejudice what would what harm to quality what unfair things happening to crawley requires these no it does mean you're seriously reliving gating it's just that the winner i guess you would want the later judge to agree with the st judge's ruling but district judges in the same division disagree with one another there's no legal you haven't suffered any legal injury by having this proceed so i don't see any need for i don't see what the purpose of this these can restrictions are you're you're not worse off than if you had one on certification i disagree with  worse off and how how would you be worse off than if you had proceeded to litigate certification and you won't you would be worse off because the judge why rick's decision might be  was filing early motion to dismiss based on the prior dismissal and of course it's kind of speculative to hand on what i think let me back up i think the presence of comedy moat issue could be did just as a matter of comedy yes that these issues have already but i don't think that's a legal right i  that strikes me is as  not very substantial given how often at least it seems to me district judges in the same district disagree on important matters all the time i see my colleague smiling maybe i'm wrong about this  you're worse off then you could be if it's proceeded to a decision so i think the nd component of this is we're four and a half years dan and the the in the supreme court's ruling that if you lose on certification you can start all over again with another plate of go to another court or go to another district perhaps that's just that may be problematic but it's the law and it's not clear how you're worse off in fact you're better off because there might be a statue of limitations defenses that arise the longer the longer the st case is taken the more likely you've got statute limitations problems if you if you file a new case i i disagree with with the court's characterization that where we're not worse off or that we are party that may be unfair but that the supreme court's decision has been given that i just don't see any need for you to be protected by this order and i am beating myself so i want to point missal similar to two of the conditions here to seize issue and the discovery carrying over and subsequently files case even though the court permitted dismissal there decision and we're going to have to redo the discovery we did in this case and to do additional discovery in the next case and that larry and i have to redo it i thought the order does they're not challenging the part of the orders say new discovery should be we'll have to retool all of our legal arguments to address the new named claims and that's not just a matter of pushing a button as mister sharp said that's significant merits based work that we will have to do when you say need to address the new name plaintiffs that's is that any different from when ever they substitute plaintiffs in the same proceeding is that is this discovery an argument related to the mister sharp in his law firm he hasn't been sanctioned and the venue restriction that is imposed is not the kind of thing that gives rise to legal credulous giving him a right to appeal and there's