and forty eight which provides relevant information on the standard of review now the fund had argued in their papers that the district relaxed subject matter jurisdiction if that were the case than any this missile on that basis would be reviewed de novo the salad case employer of a can and concluded non signatory like the funds in fact one covers trust agreements and in this matter the c v a as we allege in paragraph twenty eight see being incorporated the funds trust agreement by reference and the trust agreement is between the realty advisory board of which still the member the union a the funds and the name trustee mr for growth is actually a signatory to the trust agreement so in seeking contributions for the employer issue the fund violated not just the provisions of the c v a pertaining to contributions eligible employees but also the trust agreement specifically article five and in terms of challenging jurisdiction  when the allegation is that the fund inflicted the engine or a then there's no issue in bringing a real one action against them and that's exactly what we allege in this complaint your honor is that the fun is the one to breach the c v a and the trust agreement not not the union funds and the only arbitration that must be arbitrated with respect to an employer like dylan in the funds as it's fun is one that the fun chooses to bring but like as we note in our papers dylan filed this action for declaratory judgment st so therefore that you know they have priority here and that is that is that really true if the if there's an arbitration clause that provides that a dispute is subject to arbitration and that's in when a party is asking to have a court to stay an action that has been brought on the grounds that this belongs in or betray shouldn't that that's there doesn't always happen or be arbitrated is it to be arbitrated not not by the employee but by the funds or by the union who are the parties that have have a dispute with you but the but but but that would go to the issue of covered by the mandatory arbitration clause your honor and what's covered by mandatory average ration is any disputes between the employer and the union and anything that the are that the fun chooses to bring in arbitration and yeah well that sounds like it covers this dispute doesn't it it doesn't say anything about but if on the merits they're not really entitled to win because the employee on whose behalf they are seeking benefits is not covered employee or a member of the bargaining unit and the arbitration clause becomes invalid the arbitration clause says that very dispute on the merits is something for arbitration at the behest of the funds no well well no your honor because the respectfully we don't dispute the fact that there would be mandatory arbitration and dillon would go to arbitration in order to determine and where do you get that in the language of the c b a is that just the word the use of the word initiated in article six well that's  list new york city management and the ad and that address on the signature page of the c b a i mean even if even if any of this is relevant which it may well not be but it was listed as the point of contact so i understand that but that doesn't necessarily establish that that n y c management is the authorized agent for a legal process for dylan and in fact even if that were the case which we're not saying it is your honor the fund didn't even provide any proof that n y c management received a notice so as far as we can see how would how would they have proof that somebody received that they what they know is they mailed it and then there's a presumption of regularity that it gets delivered do they have to somehow depose before the case begins somebody at your agent to find out whether that person received the thing that was sent to him well i mean i would assume your honor that the fund would have shown a like i assigned return receipt or some type of proof i mean we've had other cases with this and they're usually fairly diligent about showing proof of service when necessary and they haven't haven't shown that there's nothing there's nothing in the record to indicate that and what's imagine it was or of that again dylan's not even mentioned and the alleged notice to n y c management how how  could bill and how could that even constitute valid notice to dylan about this arbitration so i think i think you know there's a lot of issues with that alleged service and again since we don't do that ballot service this complaint was filed cases where people race to different courthouses or something of that sort but is there such a case where a party is barred from arbitration because the counter party in a contract with an arbitra function of the law of labor arbitration and i'm suggesting to you that that's a novel idea well i get that you know the notion is that there are two different forms your honor life like that employers versus faucets and and and whichever action was for it was filed st the subject of the st fall but one of those forums has the federal arbitration act behind it and the national labor relations act behind it and we are constantly being told that there is a policy in favor of arbitration when there's not necessarily a policy in favor of litigation in the southern district of new york person at the central district of california for example it isn't it's significant that there is a policy that favors arbitration of this kind of dispute well i did i while arbitration is generally favored your honor i mean arbitration is a matter of contract and if there's no mandatory arbitration be with regard to an ability employer on the funds that you would need clear evidence your honor that to and we just like case law with regard to that there has to be clear evidence and a contract the parties  appellant made certain factual assertions which are not substantiated by the record there is nothing in the record to indicate whatsoever that new york city management was served before this action was commenced and there is no there new arguments which should have been in there is why it is the court's opinion that these issues should be addressed i'd like to address them now  you know it's a question let me let me let me ask a question let's say i understand your subject matter jurisdiction an argument that let's say we disagree with us to terrorist action under the tap tartly act if we determine that the district court had jurisdiction under it we've said that the f a a doesn't apply to cases brought under section three hundred and one of the ak and it may be that you get to the same results that the magistrate judge got to but the magistrate judge didn't look forty no and that is only because in the collective bargaining agreement with the language written on a standing to bring the case to arbitration and or to court but you could have brought the suit under if absolutely yes you could have been and let me let me ask a different a different question i always thought and maybe i'm i've been mistaken for forty years that in looking at the clar ty judgement actions to determine whether there is federal jurisdiction you essentially flipped the lawsuit and you ask whether if the lawsuit if the party that would have naturally brought the lawsuit would have federal jurisdiction then the other party has drifted action to bring a declaratory judgment to act in anticipation of that lawsuit and that that's where you look for federal jurisdiction but what the court was was not advised that the smith courts deceptively did not address the question at hand the court held there and this is a quote in response does not argue here and we need not consider the question a they have the option of going to court or going to arbitration which seems to me like the same thing that you're saying yes yes that's true your honor saw a live on so this was also addressing the issue of subject matter jurisdiction on an under issue was involved in the ledge breach of a trust agreement and that's what we're alleging here your honor like i said before and paragraph twenty eight of the complaint we we know that the c p a incorporates by reference the trust agreement and by the and by the