[00:00:04] Speaker 02:
Mr. Lawson.

[00:00:08] Speaker 02:
Good morning, Your Honors.

[00:00:29] Speaker 00:
I'm Robert Lawson on behalf of Appellant Place International.

[00:00:34] Speaker 00:
And with me is co-appellant David Grover.

[00:00:37] Speaker 05:
Mr. Grover is the inventor of the Academy Award-winning... In a wood-break at 25, you cite the FedRCF P37A5A, but you don't quote the final sentence which states that the court must not order this payment if inter alia.

[00:00:56] Speaker 05:
I'm interjecting then.

[00:00:57] Speaker 05:
This closing party's non-declosure response or objection was substantially justified.

[00:01:03] Speaker 05:
Why'd you leave out that last sentence?

[00:01:11] Speaker 00:
Page 25 of the blue brief.

[00:01:12] Speaker 00:
So that's documented 82.

[00:01:14] Speaker 00:
So is that correct?

[00:01:16] Speaker 00:
Document 82.

[00:01:17] Speaker 00:
Are you giving me a blue brief?

[00:01:20] Speaker 05:
Pardon me?

[00:01:21] Speaker 05:
You have your blue brief.

[00:01:23] Speaker 05:
Your opening brief.

[00:01:24] Speaker 05:
My opening brief, sure.

[00:01:31] Speaker ?:
Page 25.

[00:01:36] Speaker 00:
And again, I'm sorry, the question is?

[00:01:39] Speaker 05:
I'd like to leave off the last sentence of 3785A.

[00:01:44] Speaker 05:
Court must not order the payment if, and then on ellipsis, the opposing party's nondisclosure response or objection was substantially justified.

[00:01:54] Speaker 00:
But why was that the substantially justified part left off?

[00:02:01] Speaker 00:
Well, Your Honor, I wasn't the author of the brief, but... You signed it, did you not?

[00:02:06] Speaker 00:
Actually, I did not.

[00:02:07] Speaker 05:
Did you sign on to it?

[00:02:10] Speaker 00:
I personally didn't sign on to it either.

[00:02:13] Speaker 00:
Did you affirm?

[00:02:14] Speaker 00:
They did not.

[00:02:16] Speaker 00:
Why don't you just recall you're adopting this brief, did you not?

[00:02:20] Speaker 00:
I did not.

[00:02:21] Speaker 02:
Actually, a different... It says you are joining.

[00:02:25] Speaker 02:
Notice it joined her, right?

[00:02:28] Speaker 00:
Correct.

[00:02:30] Speaker 00:
That notice of Joinder was, on behalf of Voice International, was filed by John Hockenson, who's another appellate letter who's not here today.

[00:02:42] Speaker 00:
Are you affiliated with him?

[00:02:46] Speaker 00:
I'm not affiliated, other than for a time each of us has represented Voice International.

[00:02:51] Speaker 02:
So did you do a notice of appearance here?

[00:02:55] Speaker 00:
Certainly, yes.

[00:03:00] Speaker 05:
not sign on to the brief?

[00:03:05] Speaker 05:
You're not joining it?

[00:03:07] Speaker 00:
No, I'm here for Voice International today, and Voice International is joining the brief.

[00:03:13] Speaker 00:
Okay.

[00:03:15] Speaker 05:
Okay, let me take you to 37A5A.

[00:03:17] Speaker 05:
It applies that the motion is granted, but 37A5C applies that the motion is granted in part and denied in part.

[00:03:28] Speaker 05:
The magistrate judge appears to have only granted in part and denied and denied in part those motions, but it didn't outright grant any motion.

[00:03:40] Speaker 05:
Did the magistrate judge outright grant any of your discovery motions?

[00:03:47] Speaker 00:
It was my understanding that, oh, did he outright grant and not deny portions of it?

[00:03:53] Speaker 00:
I think the reason that portions were denied was.

[00:03:57] Speaker 00:
That's a yes or no question.

[00:04:00] Speaker 00:
Did he outright grant anything?

[00:04:04] Speaker 00:
Perhaps not.

[00:04:05] Speaker 00:
And the reason was is because of the erroneous non-infringement ruling that came down and it kind of changed everything midstream.

[00:04:13] Speaker 00:
And that was all the subject of the prior... I take that as a no, but perhaps not.

[00:04:20] Speaker 05:
Correct.

[00:04:20] Speaker 05:
Correct.

[00:04:21] Speaker 05:
Okay.

[00:04:22] Speaker 05:
Then if he didn't grant any of them, he's partial, right?

[00:04:26] Speaker 05:
Why doesn't 35A5C apply?

[00:04:30] Speaker 00:
rather than A. Your Honor, as I stand here, I don't know the answer to that question, but I'd be happy to try and raise it.

[00:04:40] Speaker 05:
No, you should know your rules.

[00:04:42] Speaker 05:
35A5C says the court may, after getting an opportunity to be heard, apportion the reasonable expenses for the motion.

[00:04:52] Speaker 05:
In your reply brief, you can tend to or deny an opportunity to be heard.

[00:04:59] Speaker 05:
But you were given the opportunity to brief the issue of whether sanctions were appropriate, weren't you?

[00:05:07] Speaker 00:
Are you speaking at the district court or here at the... The district court.

[00:05:17] Speaker 00:
Yes, we did brief that and I believe... So why doesn't that briefing constitute an opportunity to be heard?

[00:05:25] Speaker 00:
That would seem to constitute an opportunity to be heard.

[00:05:28] Speaker 00:
Okay.

[00:05:29] Speaker 05:
Given the discretionary wording then of 37A5C, what authority supports your position that the District Court was required to award sanctions?

[00:05:44] Speaker 00:
Your Honor, the District Court is required to

[00:05:53] Speaker 00:
award sanctions unless they lose authority.

[00:05:56] Speaker 00:
Give me authority.

[00:05:57] Speaker 00:
Per rule 37, the district court is required... What part of rule 37?

[00:06:09] Speaker 00:
I don't have the rule in front of me right now, but... Let me move on.

[00:06:15] Speaker 05:
In the rule break of 34, if you'll turn there,

[00:06:24] Speaker 05:
You argue that the V&W firm made up the allegations regarding the defamation lawsuit.

[00:06:31] Speaker 05:
You cite a declaration from a person named Matthew O'Connor, who supposedly denied that Mr. Grover made any defamatory statements.

[00:06:44] Speaker 05:
And you cite me to affidavit 1168.

[00:06:52] Speaker 05:
I have a question here, which is, how do we know that's the same Matthew O'Connor discussed in the defamation lawsuit?

[00:06:58] Speaker 05:
But the reason I have that question is, I don't know who drafted the affidavit, but whoever did apparently didn't know anything about foundation or how to provide a basis for

[00:07:20] Speaker 05:
for something other than conclusory statements.

[00:07:22] Speaker 05:
Mr. O'Connor says things about defamatory statements.

[00:07:26] Speaker 05:
He doesn't say what they are.

[00:07:27] Speaker 05:
How can we draw any value out of that affidavit?

[00:07:31] Speaker 05:
And if we can't, then how do we get back to your argument at page 34?

[00:07:37] Speaker 00:
Well, Your Honor, through the course of this Fortuner case, just due to

[00:07:47] Speaker 00:
various financial challenges.

[00:07:49] Speaker 00:
Mr. Berber has had to do a lot of the legal work himself.

[00:07:53] Speaker 00:
And so I think that explains the declaration being incompetent.

[00:08:01] Speaker 00:
Well, the declaration being not as good as might be desirable.

[00:08:07] Speaker 05:
Well, but without competent evidence in the record to support you, how can you make that argument?

[00:08:14] Speaker 05:
I think the

[00:08:20] Speaker 00:
I think the better argument... So you can't?

[00:08:27] Speaker 00:
Perhaps not on that point, but I think the better argument is the 5,000 emails that... I'll get to that if we have time.

[00:08:36] Speaker 05:
Throughout the gray brief, you appear to question the district court's motivations.

[00:08:43] Speaker 05:
For example, at page 30, you state that the district court had in a quote,

[00:08:50] Speaker 05:
apparent desire to make this case go away.

[00:08:53] Speaker 05:
Now, did a lawyer write that or did your client?

[00:09:01] Speaker 05:
Similarly, on page 32, you criticize the district court as having, quote, ignored the facts before it.

[00:09:08] Speaker 05:
The lies have been told and submitted as truth in the Rule 11 motion.

[00:09:12] Speaker 05:
Those are serious accusations against the district court.

[00:09:16] Speaker 05:
What evidence do you have that the district court acted with improper motivation?

[00:09:22] Speaker 00:
Mr. Gerber was the author of those statements.

[00:09:26] Speaker 00:
And at the district court, the opponents... You joined on to the brief.

[00:09:28] Speaker 00:
You joined the brief.

[00:09:31] Speaker 00:
First International joined the brief through another attorney.

[00:09:38] Speaker 00:
The appellants were frustrated at the district court because these rulings came down in... I'm not asking about their frustration level.

[00:09:45] Speaker 05:
I'm asking about the allegations of improper conduct by the district court.

[00:09:51] Speaker 00:
Is that any evidence?

[00:09:53] Speaker 00:
I think that other than the fact that orders were issued and motions were denied and reasons and sanctions weren't awarded and reasons weren't stated, as far as that's the

[00:10:09] Speaker 00:
You know, the frustration.

[00:10:10] Speaker 00:
So the basis for those statements is that the Court was doing its job.

[00:10:15] Speaker 00:
I think the basis is the Court wasn't doing its job because it wasn't stating the reasons and it wasn't providing opinions that could be reviewed by this Court.

[00:10:25] Speaker 00:
It wasn't explaining why it did things.

[00:10:28] Speaker 05:
You, in the blue brief, argued that district court improperly denied a court reporter pursuant to 28 U.S.C.

[00:10:36] Speaker 05:
753b.

[00:10:39] Speaker 05:
Do you have any case law in the civil context to support that position as opposed to criminal cases?

[00:10:45] Speaker 05:
The Ninth Circuit is held in criminal context that to succeed on a 753B claim, a party has to demonstrate specific prejudice resulting therefrom.

[00:10:56] Speaker 05:
I don't see anything in the civil, and I don't see anything where there are supporting allegations that your client was specifically prejudiced.

[00:11:09] Speaker 05:
by not having a free reporter.

[00:11:11] Speaker 05:
And while I'm throwing questions at you, if your client wanted a court reporter, why didn't your client get a court reporter?

[00:11:23] Speaker 00:
Let me try and address those questions.

[00:11:29] Speaker 00:
I don't believe we're aware of any case law that supports that argument in the civil context.

[00:11:36] Speaker 00:
We could certainly make another effort to try and find it

[00:11:39] Speaker 00:
provide that to the court.

[00:11:42] Speaker 00:
You get the shot in your briefs.

[00:11:47] Speaker 00:
And again, as mentioned before, the parents were just kind of caught by surprise that these hearings were being held and the court reporter, there was a court reporter and then all of a sudden the court said, well, let's go off the record.

[00:12:04] Speaker 00:
And then that was the end of the court reporter.

[00:12:07] Speaker 00:
And

[00:12:15] Speaker 00:
For example, the delay in filing the motion for sanctions, what caused a large part of that was that when the magistrate's ruling came down, no district judge was assigned to the case.

[00:12:34] Speaker 00:
And then when the district judge was assigned,

[00:12:38] Speaker 00:
we were instructed that the Rule 11 motion was to be resolved first and that no other motions were to be filed.

[00:12:44] Speaker 00:
But unfortunately, that was an oral directive given by the court, and so there's no record of that.

[00:12:49] Speaker 00:
So that's just an example of how we were harmed by the lack of a court reporter.

[00:12:57] Speaker 00:
And Your Honor, if I could, since I don't have too much more time, I'd like to make one... You're always able to make a record.

[00:13:07] Speaker 05:
court reporter or not.

[00:13:10] Speaker 00:
Or if I could, I'd like to just make one direct call to a mistake in Appellee's corrected brief.

[00:13:19] Speaker 00:
And that's in document 59 page 17 where the Kang v. Barnhart case is cited as a Federal Circuit case, although it actually comes from the Seventh Circuit.

[00:13:31] Speaker 00:
Are you looking at the red brief?

[00:13:34] Speaker 00:
Yeah, I'm looking at

[00:13:36] Speaker 00:
Appellee's corrected reply briefs.

[00:13:38] Speaker 00:
That's document 59 of page 17.

[00:13:40] Speaker 00:
The Kenzie Barnhart case, along with all those other Seventh Circuit cases, is actually a Seventh Circuit case.

[00:13:47] Speaker 00:
It's not a Fed Circuit case.

[00:13:49] Speaker 00:
So did you, Ray, you had the opportunity to file a great brief.

[00:13:52] Speaker 00:
So is this meant that... This was just something that, in preparing for the hearing today, that we became aware of.

[00:13:59] Speaker 05:
And it's better off... You'd be better off, counsel, on dealing with the...

[00:14:06] Speaker 05:
problems in your briefs, because you have a lot of them, and I haven't addressed a lot of them.

[00:14:15] Speaker 00:
Well, I think it's important to point out this problem, and the reason is that regional circuit law covers these issues, and so the Ninth Circuit has actually declined to adopt any rule that the failure to object to the magistrate's ruling waives the right to appeal, and I have a Ninth Circuit

[00:14:35] Speaker 00:
case directly on the point for that that's not in the papers.

[00:14:38] Speaker 00:
So do I. The Brook v. Simi Valley Unified Square District, 708, Fed 2nd, 452, 454, Ninth Circuit, 1983.

[00:14:49] Speaker 02:
Okay, you understand the gray group as the opportunity to respond to what Red says.

[00:14:56] Speaker 02:
That's the point.

[00:14:58] Speaker 02:
Yes, I understand that.

[00:15:04] Speaker 01:
We have things to court.

[00:15:22] Speaker 04:
David Leeds for Appellee's Mako Products Inc.

[00:15:25] Speaker 04:
and Varnell and Warwick.

[00:15:26] Speaker 05:
Let me go right to the waiver question, okay.

[00:15:32] Speaker 05:
In the red brief at 11, you argued that the parents waived their opportunity to challenge the magistrate judges ordered dying sanctions by not objecting within 14 days.

[00:15:44] Speaker 05:
But the District Court didn't rely on waiver when it addressed the issue of sanctions and instead addressed the merits of the sanctions issues.

[00:15:52] Speaker 05:
Did you argue waiver to the District Court?

[00:15:56] Speaker 04:
We didn't argue waiver to the District Court, Your Honor, but... Didn't you waive waiver?

[00:16:01] Speaker 04:
Uh, we may have your honor, but even if we did none of this appeal as to maker products and our own work is timely.

[00:16:09] Speaker 04:
The notice of appeal was filed on January 21st, 2017.

[00:16:11] Speaker 04:
The operative date when this case had a final judgment for purposes of appeal was August 9th, 2016.

[00:16:18] Speaker 04:
Did you raise that in the red group?

[00:16:21] Speaker 04:
We raised timeliness, your honor, but in the red group, we did not sort of go through the timeliness argument in the way that I'd like to today.

[00:16:29] Speaker 04:
And I'm here to assist the court with that.

[00:16:31] Speaker 03:
I'd like to ask you a couple of questions.

[00:16:34] Speaker 03:
It was suggested that Rule 37A5A may not have been the appropriate portion of the payment of expenses rule that's applicable today.

[00:16:44] Speaker 03:
It was suggested that 37A5C, which deals with granted and denied in part, may have been the more appropriate rule.

[00:16:52] Speaker 03:
Did you raise that argument anywhere in your brief?

[00:16:57] Speaker 04:
We did, Your Honor.

[00:16:58] Speaker 04:
Where?

[00:16:59] Speaker 04:
I don't have the specific page site, but we did say... I'll wait.

[00:17:04] Speaker 03:
Your brief is very short.

[00:17:05] Speaker 03:
It shouldn't take too long.

[00:17:07] Speaker 04:
I don't have the brief at my fingertips, Your Honor.

[00:17:10] Speaker 03:
You came to court today without your brief?

[00:17:13] Speaker 04:
I just don't have it at my fingertips, Your Honor.

[00:17:15] Speaker 03:
Did you bring it to court with you today?

[00:17:18] Speaker 04:
No, Your Honor, I did not.

[00:17:22] Speaker 03:
Your brief is 20 pages long.

[00:17:23] Speaker 03:
Here, you can borrow mine.

[00:17:25] Speaker 04:
Go get it.

[00:17:25] Speaker 04:
Thank you, Your Honor.

[00:17:33] Speaker 03:
Where did you raise this argument that it was 37A5C, not 37A5A, which applies?

[00:17:46] Speaker 03:
You can see the page I'm on shows you making the argument about substantially justified under 37A5A, and I understand that, but I was looking for the argument about 37A5C.

[00:17:56] Speaker 04:
There's no specific site to 35A5C, however, on page — Yes, Your Honor.

[00:18:03] Speaker 04:
However, on page —

[00:18:04] Speaker 04:
10, we raise the argument that the motions were granted in part and denied in part.

[00:18:10] Speaker 04:
And this is the middle of page 10.

[00:18:13] Speaker 04:
Of course, Mr. Grover ignores that two of the motions were granted in part and denied in part.

[00:18:17] Speaker 04:
So this is the rule 34A for C analysis.

[00:18:21] Speaker 04:
And also says this assumes that the fees are mandatory.

[00:18:25] Speaker 04:
Yes, and they are not.

[00:18:26] Speaker 03:
This is part of their... But then you go on to say and apply the substantially justified language, which is the language from 37

[00:18:34] Speaker 03:
A5A, it's not language which appears in 37A5C, correct?

[00:18:39] Speaker 04:
Correct.

[00:18:39] Speaker 04:
There are multiple arguments here.

[00:18:41] Speaker 03:
The first argument is... No, I don't see anywhere in your brief an argument that the wrong rule was applied.

[00:18:49] Speaker 03:
I note that you say from a factual matter they were granted in part and denied in part, but I don't see, in fact, then immediately thereafter you quote the language from 37A5A as though that is still

[00:19:01] Speaker 03:
applicable portion of the rule, despite the fact that they were granted in part and denied in part.

[00:19:06] Speaker 04:
The brief on page 9 talks about how the wrong rule is being applied here, and the wrong rule is being applied for many different reasons.

[00:19:15] Speaker 04:
Where does it say?

[00:19:16] Speaker 04:
It talks about rule 37E being the issue, being the rule that should apply.

[00:19:21] Speaker 03:
And indeed, the motion for sanctions itself in the first... 37E is, just make sure I'm not mistaken, is not the same rule as 37A5C, correct?

[00:19:30] Speaker 03:
Okay, so my only question to you was did you at any place in this brief make the argument that the appropriate rule to apply is 37A5C and you claimed yes you did and now you're pointing me to a section where you say 37A should have been the rule that applies.

[00:19:49] Speaker 03:
I don't see how that is a yes to my question and then you're pointing me to the place where you said factually they were granted in part and denied in part but then you go on to apply 37A5A so I don't see how

[00:19:59] Speaker 03:
That is an answer to yes.

[00:20:00] Speaker 03:
Give me a straight answer to my question.

[00:20:03] Speaker 03:
Did you at any place in this brief raise the argument that 37A5C is the appropriate rule that should have been applied in this case?

[00:20:14] Speaker 04:
Your Honor, I believe that I did give you the answer, which is no, that rule is not cited in this brief, quasi-cited.

[00:20:24] Speaker 04:
The rule is not in there.

[00:20:26] Speaker 04:
But however,

[00:20:27] Speaker 03:
The factual predicate for that rule is granted in part and denied in part, and so the substance... And so the fact that you mentioned somewhere in your brief that it was granted in part and denied in part is a preserved argument on appeal that the wrong rule was reviewed for this case?

[00:20:47] Speaker 04:
We're not preserving arguments for appeal.

[00:20:49] Speaker 04:
We're briefing our position here, and I'm here to help clarify for the Court.

[00:20:53] Speaker 03:
Now you're here to try to make a new argument.

[00:20:55] Speaker 03:
Bring me my brief back.

[00:20:56] Speaker 03:
Because I don't see that argument anywhere in your brief.

[00:21:00] Speaker 03:
And while it's a very good argument, I don't see you having made it.

[00:21:12] Speaker 04:
Similarly, Your Honor, the timeliness argument is not spelled out in the brief in the way that I'd like to spell it out now, which is that August 9, 2016 is the operative date.

[00:21:21] Speaker 03:
But just like their gray brief is the opportunity to respond to you,

[00:21:25] Speaker 03:
Your red brief is your opportunity to present your case.

[00:21:29] Speaker 03:
You don't get to stand up an oral argument just like we're not going to allow them to stand up an oral argument and make all new arguments on appeal.

[00:21:36] Speaker 04:
Well, we meet the timeliness argument, Your Honor, and we're making the timeliness argument again.

[00:21:41] Speaker 04:
Is that a jurisdictional argument?

[00:21:42] Speaker 04:
Yes, it is, Your Honor.

[00:21:44] Speaker 04:
This court in Concipi versus Morgan v. Concipi 76 Federal Appendix 939 says the timeliness rule for our jurisdictional

[00:21:54] Speaker 04:
and a party's failure to timely notice of appeal may not be waived.

[00:21:57] Speaker 04:
This court lacks jurisdiction to hear any of the issues relative to Varnell and Warwick and Mako products.

[00:22:04] Speaker 04:
And those are issues, items number three through seven on the notice of appeal.

[00:22:08] Speaker 04:
They're trying to bootstrap the timeliness of this entire appeal on the final order that was entered in December of 2016.

[00:22:15] Speaker 04:
However, that was a motion filed under rule 69A, federal rules of civil procedure 69A,

[00:22:22] Speaker 04:
which is not one of the rules under Appellate Rule 4A4A that extends the time for filing an appeal.

[00:22:28] Speaker 04:
It's not a Rule 50B motion, it's not a Rule 52B motion, 54, 59, or 60 motion.

[00:22:34] Speaker 04:
So what we're looking for is the date of the final judgment, and August 9th is the critical date, because on that date, we had make-up products being discharged in bankruptcy as of October 7th, 2014,

[00:22:47] Speaker 04:
in case number 312 bankruptcy 6572 in the middle district of Florida.

[00:22:53] Speaker 04:
And the claims of the appellants were in that bankruptcy listed as claims, listed as contingent claims.

[00:22:58] Speaker 04:
And so as of the date of the discharge, Maple Products is done.

[00:23:01] Speaker 04:
Also on that date, the case was dismissed with prejudice on April 27, 2016 by the district court judge.

[00:23:08] Speaker 04:
There was a final adjudication as to defendants Air Sealand Productions, Cinetech Video Inc.

[00:23:13] Speaker 04:
and Blue Sky Aerials honor about May 25, 2016

[00:23:17] Speaker 04:
when a consent judgment was entered as to all those defendants.

[00:23:21] Speaker 04:
And the final issues relating to defendant's spectrum effects and non-party Vernell and Warwick were disclosed out by the two orders on August 9th, 2016.

[00:23:31] Speaker 04:
All that came after was their Rule 69B motion to amend that default judgment to add this new party, Spectrum Effects New Orleans, no luck.

[00:23:41] Speaker 04:
And that doesn't extend the time for appeal.

[00:23:44] Speaker 04:
So this appeal is actually governed

[00:23:46] Speaker 04:
by rule 4A1A, and we looked 30 days past August 9th, 2016.

[00:23:52] Speaker 04:
There was no appeal filed as to makeup products in Vernal and Warwick as of that date.

[00:23:57] Speaker 04:
They were 134 days late in filing their notice of appeal in January 2017, and this court lacks jurisdiction to even consider the appeal.

[00:24:08] Speaker 05:
So item 367 can be raised at any time.

[00:24:10] Speaker 05:
I'll give you that.

[00:24:12] Speaker 05:
Or wouldn't it have been a lot more convenient if you had raised this

[00:24:16] Speaker 04:
when we could read it?

[00:24:18] Speaker 04:
It sure would have, Your Honor, and I apologize for the sparseness of the brief, and I was not on briefing in this case.

[00:24:25] Speaker 03:
We're not interested in the brief, because I have to, yes, Justice Wallach is certainly correct that you can raise a jurisdictional issue at any point in time, and you claim to me that you did raise this timing issue in the brief, although not as extensively as you would like.

[00:24:39] Speaker 03:
Can you tell me where it is in the brief?

[00:24:42] Speaker 04:
Again, Your Honor, there are timeliness issues in the brief.

[00:24:45] Speaker 04:
I don't have the brief in front of me, but the brief talks about, you know, this being substantial.

[00:24:50] Speaker 04:
I'm not going to give you mine.

[00:24:51] Speaker 04:
Thank you, Your Honor.

[00:24:53] Speaker 02:
This is all quite extraordinary, in my view.

[00:24:56] Speaker 02:
I've been on the bench for a long time.

[00:25:00] Speaker 02:
Granted, you might be able to preserve this jurisdiction for any time, but it seems to me that what you've done is you've allowed this court

[00:25:08] Speaker 02:
to spend numerous hours going through briefs.

[00:25:11] Speaker 02:
You even filed a motion for sanctions where you're seeking attorney's fees from the other side.

[00:25:18] Speaker 02:
Presumably, you're going to calculate in your sanctions.

[00:25:21] Speaker 02:
If you were to reveal on sanctions, you would be calculating the amount of time you spent on all of this, even though you're here now saying, that's all for now.

[00:25:32] Speaker 02:
All the time we spent on this case, all the time you spent on the case,

[00:25:35] Speaker 02:
That's all for not, because here we've come up with the winner of the jurisdictional argument.

[00:25:40] Speaker 02:
Is that correctly summarizing where we are today?

[00:25:45] Speaker 04:
There is a pending motion for sanctions.

[00:25:49] Speaker 02:
But the motion for sanctions would deal with the costs that you've put in to this appeal.

[00:25:54] Speaker 02:
And of course, it doesn't cover the costs we've put on to this appeal, which now, under your argument, appears to have been unnecessary

[00:26:04] Speaker 04:
Absolutely, Your Honor.

[00:26:05] Speaker 04:
And again, I wasn't on brief in this case, and I do apologize.

[00:26:08] Speaker 02:
Well, everybody seems to be getting away with that today, right?

[00:26:10] Speaker 02:
I mean, that's what we're hearing from the other side.

[00:26:12] Speaker 02:
But I guess I take issue with the extent to which you're coming to this Court and taking our time in making arguments.

[00:26:21] Speaker 02:
And that goes for both sides.

[00:26:23] Speaker 02:
So we spend a lot of time going through the briefs.

[00:26:25] Speaker 02:
This is only supposed to be a half hour.

[00:26:27] Speaker 02:
Yes, Your Honor.

[00:26:28] Speaker 02:
And then you both come here.

[00:26:30] Speaker 02:
Either disavowing everything you said, or saying it's unnecessary, or saying you're not sure what it says because you didn't write it.

[00:26:37] Speaker 04:
I'm not saying that, Your Honor.

[00:26:39] Speaker 04:
I'm not saying that, Your Honor.

[00:26:41] Speaker 04:
I'm here representing Maker Products and Varnell and Worrell.

[00:26:44] Speaker 03:
When did you become involved in this appeal?

[00:26:47] Speaker 04:
A couple of weeks ago, Your Honor.

[00:26:49] Speaker 03:
A couple of weeks ago.

[00:26:50] Speaker 03:
When did you figure out that there wasn't jurisdiction in your view in this case?

[00:26:56] Speaker 04:
In preparation for the oral argument.

[00:26:59] Speaker 04:
When?

[00:27:00] Speaker 04:
Thursday last week.

[00:27:01] Speaker 03:
Thursday last week.

[00:27:03] Speaker 03:
So on Friday, did you contemplate making the court aware of this determination by filing?

[00:27:09] Speaker 03:
We get stuff all the time.

[00:27:10] Speaker 03:
Even on the morning of argument, I've had our clerk's office run something up to my chambers saying, attorneys just figured this out, Judge, and they want to put it in front of you before you get out there.

[00:27:22] Speaker 03:
And I'm always appreciative when they do that.

[00:27:25] Speaker 03:
Because as you can imagine, I don't like having

[00:27:28] Speaker 03:
things sprung on me in oral argument, especially things that have to do with which date, which things were given notice of appeal.

[00:27:35] Speaker 03:
I have none of those documents in front of me.

[00:27:38] Speaker 03:
You don't, and you surely don't, because you didn't even bring your own brief.

[00:27:41] Speaker 03:
So you're spouting off a bunch of details that you became aware of four days ago.

[00:27:46] Speaker 03:
I mean,

[00:27:49] Speaker 03:
Were you isolated on an island without the ability to inform the court?

[00:27:53] Speaker 03:
Why would you choose not to inform the court that you believed last Thursday we had no jurisdiction over this case?

[00:28:01] Speaker 04:
Your Honor, I didn't think that there was a procedural mechanism to submit further briefing on this case.

[00:28:08] Speaker 04:
I thought that the case was briefed.

[00:28:10] Speaker 04:
that the parties were locked into the briefs that they had submitted.

[00:28:13] Speaker 02:
Well, obviously you're not locked in, because you're making an entirely different argument.

[00:28:17] Speaker 02:
So you didn't think you were locked in.

[00:28:18] Speaker 02:
They can't possibly be locked in, because they've got a right to respond, even if it's for two minutes of rebuttal, right?

[00:28:26] Speaker 02:
Again, Your Honor.

[00:28:27] Speaker 03:
How can they respond to your new argument about lacking jurisdiction, which is based on dates, particular notice of appeal information was filed, none of which we have in front of them.

[00:28:37] Speaker 03:
I couldn't blame them for not having it in front of it, because until you stood there and said it,

[00:28:40] Speaker 03:
They're not on notice of it.

[00:28:42] Speaker 03:
So how can they meaningfully respond today to this argument you're making about jurisdiction that you've possessed for four days?

[00:28:49] Speaker 03:
Gosh, I mean, it feels like the cabinet on hearings.

[00:28:51] Speaker 03:
Go ahead.

[00:28:52] Speaker 04:
Your honor, it actually was incumbent upon the appellants to determine whether or not the appeal was filed timely.

[00:28:59] Speaker 04:
And so that would actually be part of the frivolity of this appeal, that they should have done this assessment of whether or not... Let me say this, counsel.

[00:29:07] Speaker 04:
Yes.

[00:29:09] Speaker 05:
I think the Chief makes an awfully good point.

[00:29:12] Speaker 05:
And coming into this, given what I consider the frivolous nature of the appellant's break, I was leaning strongly towards attorney's fees.

[00:29:32] Speaker 05:
I am no longer.

[00:29:34] Speaker 05:
You've talked yourself out of that.

[00:29:37] Speaker 04:
I appreciate that, Your Honor, but we would still say that we should prevail on the merits of this.

[00:29:42] Speaker 04:
Number one, because the court lacks jurisdiction, and also because... I think you have a good argument there, but... Also because all of the grounds of appeal, if we were to get to the substance of it, lack merit.

[00:29:54] Speaker 04:
One of the orders, the show cause order, which is item five on the notice of appeal, doesn't even apply to these parties.

[00:30:02] Speaker 04:
It was a show cause order that was... I'm aware of that.

[00:30:06] Speaker 04:
And with regard to number six, this is the issue of granted, in part and denied, in part, there was discovery motion.

[00:30:12] Speaker 05:
You don't know how much time you wasted.

[00:30:17] Speaker 05:
I went deeply into the record, given the allegations, especially by the other side, trying to find anything that supported them.

[00:30:28] Speaker 05:
I just second everything the chief said.

[00:30:31] Speaker 04:
And again, on behalf of the appellants, I see my time is almost up.

[00:30:34] Speaker 04:
I apologize on behalf of appellees, Mako Products, International, and Barnell & Wilwick, and I will do better in the future in terms of filing a supplemental notice to this Court if I do find a jurisdictional issue.

[00:30:46] Speaker 04:
And I thank you, Judge Moore, for telling me that I should be doing that.

[00:30:51] Speaker 00:
Thank you, Your Honor.

[00:31:02] Speaker 00:
And certainly for my five minutes remaining, for my five minutes remaining, I'd like to address the primary issue on appeal.

[00:31:17] Speaker 00:
That is whether it was an abuse of discretion not to amend the judgment.

[00:31:22] Speaker 02:
Unless I've missed something with all this, and that wasn't an issue you raised initially in your argument 15 minutes ago, right?

[00:31:32] Speaker 00:
I certainly intended to raise it from the very beginning, you know, however, all the questions about the sanctions issue, which you may not even have jurisdiction over, preventing me from doing so.

[00:31:45] Speaker 00:
But I'd just like one minute to make one point.

[00:31:49] Speaker 03:
Your best bet is to sit down.

[00:31:55] Speaker 03:
I'm giving you really good advice right now.

[00:32:01] Speaker 02:
All right.

[00:32:02] Speaker 02:
What can I do?

[00:32:03] Speaker 03:
Okay.

[00:32:06] Speaker 03:
Whatever you want to do.

[00:32:09] Speaker 02:
Okay.

[00:32:09] Speaker 02:
What we're going to do is order additional briefing exclusively on this jurisdictional question that's been raised this morning.

[00:32:17] Speaker 02:
We'll give the other side, since you've already thought it out, we get till Wednesday close of business to file a five-page brief on this matter.

[00:32:27] Speaker 02:
And you'll get to the following Monday to file no more than a five-page response to this issue.

[00:32:33] Speaker 02:
And that will be the end of it on the other side.

[00:32:36] Speaker 02:
Take on the issues we've raised here this morning, the issues that were in your brief, and of course, deal with the jurisdiction issue.

[00:32:44] Speaker 04:
OK.

[00:32:45] Speaker 04:
In terms of formatting, Your Honor, would you like this as a found brief or a letter brief?

[00:32:48] Speaker 02:
No, I think a letter brief would be fine.

[00:32:50] Speaker 02:
Double-spaced or single-spaced files and single-spaced five pages.

[00:32:55] Speaker 02:
Thank you very much.

[00:32:56] Speaker 02:
And then again, gentlemen, are you hearing this?

[00:32:59] Speaker 02:
Five-page response due by close of business Monday.

[00:33:03] Speaker 02:
They are filing by close of business Wednesday, five-page letter briefs in the space.

[00:33:09] Speaker 02:
We will file in a response to that by close of business Monday.

[00:33:17] Speaker 01:
Thank you.

[00:33:19] Speaker 01:
Do you have two minutes?

[00:33:26] Speaker 02:
I'm sorry, you're not the counsel.

[00:33:27] Speaker 02:
Is there something you want to insert here?

[00:33:31] Speaker 02:
And I know, Your Honor, we're thankful for so.

[00:33:34] Speaker 02:
Thank you.

[00:33:36] Speaker 02:
We'll just submit the case for the time being.

[00:33:39] Speaker 02:
Thank you, Your Honor.