won't like the way i'm about to put this but mr eaton i'm worried that you may be right at an earlier stage of this case you questioned the existence of federal subject matter jurisdiction this case was removed on the theory that some claims at least were completely preempted that is they were disguised section three i want yes and you said that was wrong last in the district court and the cases state in federal court court of appeals no one has org you'd subject matter jurisdiction but mr eaton suppose you were right and there is no complete preemption then this case doesn't belong in federal  court it is the first duty of every court to make sure there is subject matter jurisdiction so the parties have ignored this both sides have ignored the jurisdictional question even though it was a contested question in this case so your honor your right it was not addressed secondly it had to be addressed not all rules require it to be addressed the fact that both sides ignored their obligations doesn't mean we will ignore  have to think about this i don't mean to be arguing with you i'm just saying it's not which is true and we perhaps said we had an obligation to do so the way we saw it is that the district court had decided that the claims and the m l r a or preempted because they dealt with the collective bargaining between the two parties and so what we did was amend the complaint so that we had state law claims and then the court exercised supplemental jurisdiction in its final act there is no supplemental jurisdiction unless there is at least one claim within a regional federal jurisdiction that's the question i'm asking was there are you confessing error on your prior position and if so why fact that under the rule seventeenth be three as to who can bring the lawsuit is that the district court heard it first doing it and the erie type analysis before he did the hand analysis which we believe he would have found then had he done the right test that there was capacity here and that under the would have looked to eleanore a law under seventeen b three and a person represented would have been adequate to proceed with this lawsuit let me skip ahead and ask you a question about relation back let's assume that we disagree with you and we think it had to be a trustee yes what would you do couldn't we do you have to go back to minnesota and what a minnesota court at that point even be willing to appoint a trustee under minnesota law if we were in state court they would say no nuclear test case but what we would ask the had the test been applied properly we believe that this relation back was certainly something that could be rationally classified as procedural and you don't look to say law to determine the issue under seventeen the three argument that in the federal court in appliance seventeen a three can determine the test first of all is are federal on point and yes there is since seventy three second it can be rational rationally be classified as procedural and we believe the answer is yes it candy and third is a constitutional that is serious and even been raised so under that test under seventeen eighty three the district court could have said i will allowed you to seek a trustee he did not because he determined under the area analysis that the provision in point blander stand that but i just on am not seeing how you could even pursue getting a trustee at that point what we would be if that actually there's a similar provision under the rules in minnesota what there is to back to cases that are brought in state court there it's rule seventeen they modeled the federal so procedure and we would ask for a substitution relation ship back and i think this would have been determined under the federal rules and it would be allowed and i think that they would respect that i don't believe i don't know whether the district court could himself a point at rusty and still being within the realm of the menace of statute we would look at that but were asking that it be sent back for that that we would have been allowed to have a trustee pursue it and going back briefly either because i know your question was premised on if you didn't agree with us on the seventeen b three but i'd just like for that briefly we well there's another federal rule directly on point it's seventeen a want which neither side is mentioned seventeen a one says that a suit will be brought in the name of the real party in interest and as a matter of minnesota law trustee is the real party in interest for a wrongful death action even though the state is the real party in interest for other purposes why isn't this case governed by rule seventeen a one  respect to who can bring the suit we would argue that the real party in interest has you look to the law the form and that would be element law which would allow the person or what percentage what basis do you have for that that's actually a big difference between is seventeen a one and seventeen b b seventeen it be requires a reference to foreign law for capacity to suit us seventeen a one just real party and interest and that sounds like a reference to the substantive law governing the action when you're looking at the conflicts of law issue the question is whether or not minnesota or illinois law would apply with when it got isn't that's a question independent of seventeen a one well it may be that if illinois law supplies the substance this whole trusteeship business goes away and then seventeen a one and seventeen a three and relation back the irrelevant you have to address the seventeen a one question independently on the assumption that minnesota law governs who owns the claim what i was assume for purposes of my question that minnesota law governs substance my question is why isn't this a problem under seven hundred eighty want seventeen a one about who is the real party in interest it may not be which is why we look to seventeen eighty three do you have any reason under those circumstances and i believe seventeen one would apply and i also believe that we would have had the opportunity to substitute the trustee as a real party in interest under  seventeen that's a through but i think in either event the whole argument about rule seventeen b just drop so we are in the domain of rule seventeen a for subsection one and maybe subsection subsection b just doesn't matter then i was asked will seventeen a high and we believe that under seventeen say that there would have been no prohibition in allowing substitution of the trustee as a real party in interest to go forward with this lawsuit even though sacha limitations had run it was not brought to our attention till two thousand and fourteen after we had filed our mint complaint addressed we have it's not simply a jurisdictional issue hidden in the record it's a jurisdictional issue that was actually contested in the district court and then it just vanishes on appeal notwithstanding the rule that we must decide it you know we don't entirely like deciding issues without the parties hope we will if we must but both sides are supposed to address touristic i i i understand that your honor i would just say that we did not brief  one issue because they were not raised on appeal and we were it doesn't matter whether it jurisdictional issue was not raised it must be addressed raised or not that's what it that's what it means to call an issue one of subject matter i i i understand that judge and i would say that there hasn't been a serious dispute and i don't think that there can be a serious dispute as to the existence of subject matter jurisdiction there was a serious dispute in the district district court didn't treat this as a frivolous subject the district court devoted time and energy to it well in its very first decision addressing the issue it was the decision that denied the motion to  and judge feinerman actually i think found it very straightforward that there was federal jurisdiction because two of the counts and they were the first two counts that the judge addressed substantively in the case where the claims that obligations under the substance abuse and behavioral health program and the judge found and ultimately there really wasn't a dispute that the two referred to as the s a b age that the  was collectively bargained and i think judge my yes but if a collective bargaining agreement establishes say health insurance as a benefit and a dispute about the health insurance arises under state law unless of course it's a risk then where in the world of the rest but things to which collective bargaining agreements refer are not automatically disputes about the meaning of the collective bargaining agreement anyway this needs to be addressed by the  parties otherwise you know if we must we will do it on our own but we will invite the parties to file supplemental memos within fourteen days of argument we'd be happy to do that your honor may i proceed on the matters that address judge easterbrook which is that seventeen a one is the applicable rule governing real party and interest the real party in interest is the party who owns the legal right in this case  as already been discussed a legal right was owned by or would be owned by a trustee if a trustee were appointed so seventeen b three has nothing at all to do with the issue of who can bring it wasit here with respect to a personal representative versus a trustee with respect to the issue of trustee in the absence of a trustee i'd make the following points as we've briefed and as the minnesota supreme court has indicated on multiple occasions that the absence of a trustee is is dispositive i think in one of the cases the court referred to the plaintiff was in fact subsequently appointed as a trustee and that there's no evidence that that ever happened here i even when there really was a trustee that was appointed after the fact  future because all of this if they forfeited the arguments if they failed to stay claimed on the merits and they didn't contest that in the twelve b six motion districts and the claims of a forfeit right correct and and there were a number of claims that were not addressed below that the plaintiff did not seek leave to repeat did not indicate that there was a trustee waiting in the wings we had actually raised the trustee issue as far back recited was a failure to respond to the argument that regardless of which state's law applied that the complaint failed to stay correct wayne because it wasn't plausible it was in the bar argument  second amended complaint based on any ground other than preemption which we had ruled on at that point and and and we did and they didn't respond and trying to mend devoted i think two full pages in the subs sense of his opinion and came back to it again in his conclusion and i think it's evident from your trying to mince discussion and treatment of the issue that this was an alternative holding he treated to failure to respond to it as in judge fine and therefore found you know turn it into basis for dismissing the case on that basis unless there are other issues that your honour's would like to discuss including judge easter i do want to respond to a couple questions that were asked and correct the record if i misspoke in one question you had asked judge barrett was related to whether or not the district court could appoint a trustee in the answer is yes under section sub division three the minnesota wrongful death action it says where the case is pending now it soon means that star stiction in the district or the district court would be able to appoint a trustee and that's covered in the minnesota statute time limit answer that question number two with respect to your question on forfeiture i just want to correct the record in a couple instances first of all there was a motion for leave to file a second amended complaint which was fully brief in our memo to the court with respect to that issue and there was in the reply brief we said placed plaintiffs motion to amend is not futile addressing the issues have been raised in the national hockey league least by us the court used the word viability i admit not possibility but at that point since the issue of who could bring the lawsuit was going to be at that point outcome determinative we did not address  it we could not ask for leave after he'd entered the order because at that point it would have been futile because he had already said the lawsuit couldn't be brought in the first place so getting into issues a possibility when he said that there was no trustee would made that request futile so for those reasons we've been to two to happily that was forfeited because it was not raised possibility with respect to the amended complaint after it was removed it was raised with respect to the second