[00:00:22] Speaker 04:
We will hear argument next in Keith manufacturing against Butterfield case number 19 1136 and College Yes, sir Good morning your honors.

[00:00:43] Speaker 02:
Thank you May it please the court my name is Shawn college here on behalf of appellant Larry Butterfield and

[00:00:51] Speaker 02:
This appeal presents the question of whether a stipulation of dismissal under Rule 41 can function as a Rule 54 judgment for purposes of an attorney fee motion.

[00:01:04] Speaker 02:
Alternatively, the district court found that such a holding was precluded by the Supreme Court in Microsoft v. Baker, and an appellant believes that that conclusion was in error.

[00:01:19] Speaker 02:
I'd like to focus on three points, three reasons why we believe the district court erred.

[00:01:27] Speaker 02:
First, that a ruling in appellant's favor here, namely that a stipulation of dismissal is a rule 54 judgment, would not be inconsistent with Microsoft v. Baker.

[00:01:41] Speaker 02:
Secondly, that a ruling in appellant's favor would not be inconsistent with the law on prevailing party determination, specifically the catalyst theory that the Supreme Court rejected in Buchanan Board.

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And third, that a ruling against appellant

[00:02:03] Speaker 02:
upholding the district court would create inconsistencies and competing incentives with state law as well as the circuit split.

[00:02:13] Speaker 04:
Can I ask you a question?

[00:02:14] Speaker 04:
Yes.

[00:02:15] Speaker 04:
It certainly is about 54D and maybe is a kind of threshold to your contention that a rule 54, a rule 41A1A2

[00:02:33] Speaker 04:
stipulated dismissal without a judicial order is a judgment.

[00:02:39] Speaker 04:
What do you make, if anything, of a contention that Rule 54D is merely a timing rule, that it doesn't actually require there to be a judgment for

[00:02:56] Speaker 04:
the filing of an attorney's fees request.

[00:03:00] Speaker 04:
It simply says, if there's a judgment, then you have 14 days to seek fees, an idea perhaps supported by the reference in the advisory committee notes to the permissibility and the committee's intent to not disturb the practice of filing fees motions before there is a judgment.

[00:03:25] Speaker 02:
Yes, Your Honor.

[00:03:25] Speaker 02:
I agree with you.

[00:03:27] Speaker 02:
Certainly, it's the case that such a motion can be filed before a judgment.

[00:03:32] Speaker 02:
I think the plaintiff in this case, the appellee, has argued that the stipulated dismissal is too final, in a sense, and divests the court of jurisdiction.

[00:03:48] Speaker 02:
I think the district court disagreed with that.

[00:03:53] Speaker 02:
So I think the contention here is that a stipulated dismissal is a sufficient judgment.

[00:04:01] Speaker 02:
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.

[00:04:14] Speaker 03:
How would you satisfy the rules requirement that you'd have to name the judgment in the motion?

[00:04:22] Speaker 02:
Well, a judgment is defined as, I guess that's the question, Your Honor, is what is a judgment?

[00:04:33] Speaker 02:
That's precisely the subject of this appeal, whether a stipulated dismissal is a judgment.

[00:04:41] Speaker 03:
And so my answer- Well, yeah, you have it in your favor.

[00:04:42] Speaker 03:
The 10th Circuit has ruled that it is.

[00:04:45] Speaker 03:
Correct.

[00:04:45] Speaker 03:
In the actuarial decision?

[00:04:47] Speaker 02:
That's correct.

[00:04:47] Speaker 03:
And you have a solid precedent in your favor.

[00:04:51] Speaker 03:
The rule defines judgment as judgment includes a decree, so that picks up all the old equity notions, or an appealable order, right?

[00:05:04] Speaker 03:
But it uses the words includes.

[00:05:07] Speaker 02:
That's correct, Your Honor.

[00:05:08] Speaker 02:
I don't see anything in Rule 54 that excludes a stipulation of dismissal from the definition of judgment.

[00:05:15] Speaker 02:
And I believe that's what the Tenth Circuit determined.

[00:05:17] Speaker 03:
And it would be a judgment because it decides something.

[00:05:21] Speaker 02:
That's correct.

[00:05:22] Speaker 02:
A stipulated dismissal, certainly with prejudice.

[00:05:25] Speaker 03:
If you look at definition of judgment in Black's law dictionary and legal dictionaries, it talks about something a judge does, right?

[00:05:34] Speaker 03:
But with a stip dismissal with prejudice, the judge doesn't do anything.

[00:05:40] Speaker 02:
You're correct, Your Honor.

[00:05:41] Speaker 02:
And our position is that a stipulated dismissal serves as a judgment because of its preclusive effects on the plaintiff.

[00:05:55] Speaker 03:
Getting back to my... If we agree with you, Matt, the stiffness missile with prejudice is sufficient as a judgment, can't we elide the question of whether it's required and say, assuming for purposes of argument it is required, there is...

[00:06:17] Speaker 03:
I sit by designation in the 11th Circuit every year, and the 11th Circuit elides issues all the time by saying we don't need to decide the question of whether or not a judgment is a requirement, because if it is, there is one here.

[00:06:32] Speaker 02:
Certainly.

[00:06:32] Speaker 02:
That would satisfy our opinion.

[00:06:34] Speaker 03:
But if we were to decide that there is no requirement of a judgment, we would then be in conflict with the 10th Circuit, would we not?

[00:06:43] Speaker 02:
I think that's the case, Your Honor.

[00:06:45] Speaker 02:
I don't believe our appeal requires this court to decide whether a judgment is required for a Rule 54 motion.

[00:06:55] Speaker 02:
You're correct.

[00:06:56] Speaker 03:
Well, do you read XLR as saying that the 10th Circuit believes that a judgment is required for 54 purposes?

[00:07:06] Speaker 02:
I didn't read that from XLR.

[00:07:08] Speaker 03:
What I read... How did they, having said that it was and then having proceeded to the merits, how could they have got to the merits?

[00:07:15] Speaker 02:
I think that court, the Tenth Circuit, decided that a stipulated dismissal is a judgment.

[00:07:22] Speaker 02:
And so the question of whether a judgment is required or not... The opinion states it says it's a requirement.

[00:07:29] Speaker 03:
Okay.

[00:07:30] Speaker 02:
Right?

[00:07:32] Speaker 02:
In the XLR opinion?

[00:07:33] Speaker 03:
Yeah, and then I can read it to you if you want me to read it.

[00:07:37] Speaker 02:
It says in it.

[00:07:37] Speaker 02:
Take your word for it, Your Honor.

[00:07:41] Speaker 02:
I don't believe that this court must decide that a judgment is required to file a Rule 54 motion.

[00:07:48] Speaker 02:
Whether it's required or not, it's sufficient.

[00:07:52] Speaker 03:
And so it's being on a kind of sort of a common man in the street definition of judgment, not a legal definition.

[00:08:02] Speaker 02:
That's correct.

[00:08:03] Speaker 03:
I make judgments every day in my family life.

[00:08:07] Speaker 03:
Judgment decides something, right?

[00:08:09] Speaker 02:
It's a resolution of the action.

[00:08:12] Speaker 02:
I believe that that's an adequate definition of judgment for purposes of Rule 54.

[00:08:18] Speaker 02:
Yes.

[00:08:19] Speaker 03:
So if we were to decide that your motion was sufficient on its grounds, the motion's got some federal parts and some state parts.

[00:08:28] Speaker 03:
Correct.

[00:08:28] Speaker 03:
And as to your state law,

[00:08:31] Speaker 03:
claim for a prevailing party.

[00:08:33] Speaker 03:
The other side comes in and argues, well, there are lots of bits and pieces of Oregon law that you haven't taken account of, and that when we take account of the whole picture, we'll see that your argument fails as a prevailing party under Oregon law on your contract claim.

[00:08:53] Speaker 03:
But you didn't file a reply brief, so I didn't quite know what

[00:08:58] Speaker 03:
I'm a little confused in my own mind about exactly what Oregon law is with regard to your prevailing party for the state law claim.

[00:09:07] Speaker 02:
Well, Your Honor, I can give you my understanding, but first let me say that the prevailing party issue was not appealed, and that is why we didn't address it

[00:09:16] Speaker 02:
in detail in our briefing.

[00:09:18] Speaker 02:
The only issue that was appealed is whether a stipulated dismissal is sufficient.

[00:09:23] Speaker 04:
Right, but the other side says in response to your appeal, you say the district court has to really only the contract claim.

[00:09:34] Speaker 04:
That's the only live claim because all the others, the judge said even if I could reach it, I wouldn't give it.

[00:09:39] Speaker 02:
Yes.

[00:09:40] Speaker 04:
So just the contract claim and the judge says I would find prevailing party

[00:09:45] Speaker 04:
But I can't because there's this 54-D problem.

[00:09:48] Speaker 04:
And you appeal and say there really isn't a 54-D problem.

[00:09:52] Speaker 04:
And the other side comes back and says, first, yes, there is.

[00:09:55] Speaker 04:
But in any event, you really are not a prevailing party.

[00:10:00] Speaker 04:
And they're entitled to do that.

[00:10:03] Speaker 04:
And they note aspects that they make interesting criticisms of the district judges

[00:10:13] Speaker 04:
ruling that you are a prevailing party, including by pointing to Oregon statutory provisions, including by pointing out the oddity of relying on the state court procedural rule 54, the oddity because prevailing party status

[00:10:39] Speaker 04:
for a state law claim is a matter of state law, which suggests it's a matter of state substantive law.

[00:10:46] Speaker 04:
Indeed, Exler says it is a matter of state substantive law.

[00:10:50] Speaker 04:
And the rules of the Oregon state courts, whatever else they are about Rule 54D, would not meaningfully be part of Oregon substantive law.

[00:11:01] Speaker 04:
Why shouldn't, if we agree with you about 54D, we remand the question

[00:11:07] Speaker 04:
uh... for reconsideration of whether uh... you actually are a prevailing party on uh... under the relevant the relevant oregon law which uh... 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 substantive state contract law to decide that prevailing party question and under the substantive

[00:11:37] Speaker 02:
law of Oregon, a dismissed party to a contract claim, even without prejudice, is a prevailing party.

[00:11:45] Speaker 02:
And that is what the district court held.

[00:11:48] Speaker 02:
If the court remands that question, I believe that's what the district court will find again.

[00:11:53] Speaker 02:
But I believe the court found that already.

[00:11:59] Speaker 02:
I don't believe it matters.

[00:12:00] Speaker 03:
And that's as a matter of decisional law?

[00:12:02] Speaker 02:
Yes, I believe that's the case.

[00:12:06] Speaker 03:
I remember that from the brief.

[00:12:12] Speaker 01:
Well, it's what he said, but it certainly wasn't necessary to his conclusion because he found it wasn't possible for him to award those fees.

[00:12:31] Speaker 02:
Yes, the court on page 14 of the opinion in Oregon... Citing Attaway v. Safer, is that it?

[00:12:37] Speaker 02:
Correct.

[00:12:38] Speaker 04:
Cited Attaway v. Safer for the conclusion that a dismissed... As a state court case relying on Oregon procedural rule 54A3, which can't possibly govern the answer to the substantive attorney's fees question under Oregon law,

[00:13:00] Speaker 04:
that is substantive, which is to say that would apply in a federal court, diversity, or other action.

[00:13:08] Speaker 02:
Your Honor, that case stands for the proposition that a dismissed defendant to a contract claim is a prevailing party.

[00:13:16] Speaker 02:
As to whether the prevailing party is entitled to fees, that question is also reached by the court, which concluded

[00:13:26] Speaker 02:
that if the contract has a fee-shifting provision, then the prevailing party is always entitled to fees.

[00:13:33] Speaker 02:
And in this case, the contract did have a fee-shifting provision.

[00:13:35] Speaker 02:
And that is why the court concluded that the defendant would be entitled to fees other than this Microsoft v. Baker problem.

[00:13:44] Speaker 01:
So the fees here aren't based upon any kind of underlying state substantive law about who is a prevailing party and the like.

[00:13:51] Speaker 01:
It's based specifically on the fee-shifting provision in the contract.

[00:13:57] Speaker 02:
Substantively correct.

[00:13:58] Speaker 01:
Substantively.

[00:13:59] Speaker 01:
Yes.

[00:14:03] Speaker 04:
You are well into your rebuttal time.

[00:14:05] Speaker 04:
I'll reserve that.

[00:14:13] Speaker 00:
Thank you very much.

[00:14:15] Speaker 00:
Bruce Kaser here for Keith Manufacturing.

[00:14:18] Speaker 00:
If the panel has no questions, I'll stand on our briefs.

[00:14:23] Speaker 04:
Even if you're going to lose on what you said in your briefs?

[00:14:27] Speaker 00:
I'm sorry, sir.

[00:14:27] Speaker 04:
Even if you're going to lose on what you said in your briefs?

[00:14:31] Speaker 00:
We'll stand on what we have to say on our briefs, your honor.

[00:14:39] Speaker 04:
Not much to rebut.

[00:14:40] Speaker 02:
Not much to rebut.

[00:14:41] Speaker 02:
Does the panel have any further questions for the appellant?

[00:14:44] Speaker 02:
I have one, if you don't mind.

[00:14:45] Speaker 01:
I noted in that district court decision, it said he didn't pass on the actual proof of the fees.

[00:14:54] Speaker 01:
And if he was going to work on them, he'd have to look at that.

[00:14:56] Speaker 01:
So at least we'd have to send that back.

[00:14:58] Speaker 02:
That's correct, Your Honor.

[00:14:59] Speaker 02:
We didn't submit a detailed bill of cost because we were denied the fees.

[00:15:06] Speaker 04:
OK, thank you.

[00:15:07] Speaker 04:
Thank you.

[00:15:07] Speaker 04:
The case is submitted.

[00:15:16] Speaker 03:
The court is adjourned until tomorrow morning at 6 o'clock a.m.