one that the lower court misapplied the appropriate burden of proof to prove or to show good faith dispute as to whether the keogh is a private club we believe that  be borne by yukio in the lower court found that that burden should have been borne by reimer too that the lower court misapplied the standard for motion for summary judgment and appears to have weighed the evidence rather than determining if good faith material issues that should be tried which there were and which there in so doing the lower court misapplied the analysis for the factors to determine public versus private and lastly we have raised the issue as the lower court did not rule on the rule fifty six d motion for additional discovery bearing in mind of course that the motion for summary judgment on bike q was done very very early in the case and immediately prior to  and to take this to a settlement conference not only was the motion for summary judgment brought by keogh but it was brought on the literal eye on the steps of the mediation and an order shortening time and we made those objections to the lower court in the lower court simply went past them and wanted these issues to be heard and they were done or heard on short notice so there was no agreement no indication in fact if you look at the history of this case your honor there had been a dispute brewing at the very beginning of this case about which of these claims may be subject to arbitration are not subject to or of attrition and we have those distributes and we're trying to settle that out before our mediation and fact rymer filed a motion for summary judgment on those so that we would have the scope of the case which were federal claims which were state killings so no summary judgment motion was an anticipated wasn't something we expected and frankly had it been we may have acted differently in that case you had asked the district court for an opportunity to conduct discovery we were discovery that we would seek it is to determine those facts that bear upon the private exemption to the otherwise public accommodation of the keel and that would be who uses the club when to they use the club how do they use the club how the club is advertised what the club actually does how is it man each what are those management issues all of the eight factors that go into determining private versus public none of those facts have ever been or seen the light of day and one of our six substantial objections is of course that mr mehlman zz declaration is a summary is very  short conclusory and doesn't in our view rise to the level of showing that kiyo is indeed a private club and that's one of the issues that we would have and we also believe that  court saw that discovery employer applied the appropriate burden of proof and we believe that the court made a reversible error in determining that the burden was on r show that there was not a public or not a private club we believe the better rule and the rule that was not seated in martin versus p g a tour and citing to both the fourth and fifth circuit is sense that is an exception to the general rule that exception is a burden to be borne by the party claiming the benefit of that exception and that is to kioto and there are no facts in the record in our view akin argument to the district court we did we did and was not addressed she had a contrary opinion and she noted it in her ruling that no rhyme or has to prove the a claim at trial and i think we got a little off line with the lower court on what the trial evidentiary burden is versus the burden on a motion for summary judgment and the court took the position that reimer had to prove an a t m violation so i had to prove it was in a public accommodation well it's in the statute that a golf course or recreational facility health club by statute is a public accommodation and nobody disputes that coquille is in fact all of those so it is a public accommodation what there isn't is a private club that we believe is the burden to be borne b affidavit that attested that the club was private you did not advertise that you not be selective membership criteria in order to become a member of the club as the membership rules she concluded that we did prove that you know it was a private club and when she scrutinized the opposing papers she did not get ca affidavit any contrary material competent evidence she did not feel that opposing counsel is affidavit that if the mediation is not successful we plan to conduct intens discovery the rules require that the opposing party with specificity not just a generic we will conduct discovery on certain issues that it has to show the plaintiff must show that the discovery flew from reno and he posed several witnesses at the cookie or resort he post salespersons he depos my client melanie iona who was the victim of verbal abuse so he had conduct a discovery also any earlier motion for partial summary judgment or summary judgment judge leslie higher she ruled the mr i conferred counsel's declaration submitted in connection with i think the opposition to the motion for summary judgment and she represented in that declaration that at all times counsel for the parties had agreed and represented to the court that discovery would be withheld until after mediation are you saying to us right now that that's accurate judge your honor that was for the crane that had to be  distress and the discovery on those claims was a state or it was we didn't proceed on that because we were flying to reno to do the mediation but the count one which was not  that could have been should have been done before the settlement mediation well it could have been done before the mediation because they had the pows are person  ourselves an immediate if you attempt a settlement and we realize that hong won yesterday a claim was the primary claim on the break and that we wouldn't be able can i have you go back to your burden of proof issues are you arguing that the district court properly placed the burden of showing big sanctions on the defendants or are you so are you are you arguing that she place first but appropriately so regarding the hearing on the motion she did she said she wrote the plaintiff must a deuce contrary evidence which creates a genuine issue of material dispute a fact and again she started she she noted that ultimately plaintive would have to burn in a trial but her decision she emphasizes that  move on and we did show that we were a private club and that the evidence of use by point it was not sufficient to withstand some judgment addressing the similar elements of what is a private club where public accommodation and figured to some reject them very similar to this case it was it's a two thousand and fifteen case after we had finished grieving so i have a copy of the court would like it you can fill out a form and bring it to our attention if you afterwards let me ask you one question at a minor sort of on technical question but you know when the appeal was launched with us we the court offers mediation services generally you know encourage parties to settle we tried after our court notified you to answer your question sure reimers always stood ready willing and able to engage in good faith mediation to resolve this case well you know the ninth circuit has a wonderful mediation program was not elected by it takes two sides it wasn't weimer that's the short story we've tried to settle this case on a number of key on a number of occasions and we've not been able to do so for various reasons but i think to go back to judge noons question about discovery mr oshima is a long note discovery was taken prior to the motion for summary judgment that was all after if you look at the timeline in this case the complaint was filed on july twentieth it wasn't until two months later on september fourteenth coquille filed an answer that is flat wrong it would make no sense the point of staying discovery was not to go to the expense of discovery having a good faith settlement mediation and i will tell you that that mediation was held in reno because that was the suggestion of mr oshima and his client we were going to mean a bill for that mr rymer is an extremely disabled person it is extremely hard for that man to travel so rather than put it to the expense of going to hawaii which would take a huge effort on his part he is severely disabled with traumatic brain injury we held it but if you look at the timeline there is no time to conduct discovery no discovery was in fact conducted the discovery that he related to us minute ago yes when was that conducted after the mediation was unsuccessful that's when it occurred because otherwise we would be contrary to what our agreement was and that was to well when when was the summary judgment motion filed the summary judgment motion was filed on march eleventh so we have  mediation the motion for summary judgment was filed just prior to the mediation you know one was the discovery conducted before the court considered the statement the facts there were no there was no discovery prior to the motion for summary judgment of that's the motion my question is it was filed and then after the motion was after the motion was decided but prior to there being any discovery conducted after that when it went way way you just said something there that so the motion is filed on march twelfth the motion is filed march eleventh eleventh and the district court ruled on that motion on april eleventh the day prior to the mediation then mediation is is the next day and then it failed and we went back into preparing this case for trial and we conducted the discovery at that time that's correct and person that's for certain to this you say the right convert the russian birth so it was because there was an agreement to stay all discovery pending motion for summary judgment because we had a dispute between counsel between the parties whether some claims were are not under an arbitration agreement or one of the governing documents rymer filed a motion for summary judgment to determine which were state claims which were federal claims which were appropriately brought in federal court and that was what we had done to narrow in that what that was before you guys  mediation or was that that afterwards or is this the motion we're talking about two different motions this was done prior to that ok thank you did you want to get at the point and we sort of wanted clarification there is you give you just