lane verses eleven ninety nine sci you morning secondary to this employment discrimination action and it's the simpler one is is it an abuse of discretion to holds that the federal court has diversity jurisdiction in a case which commenced in the bronx in which all of the defendants were located in the bronx was it an abuse of discretion for the lower court to hold that a fifty five year old african american female is not in a protected class and we believe that the union did not help her in her employment discrimination  case because she was expensive tuition reimbursement for fifty five year old and also age related health concerns as a female reaches the age of fifty five we also believe that the lower court abused its discretion in claiming that we do not have a conceivable cause of action against the union and were not in possession of facts to clear the defects all of those facts were contained in the application for a preliminary injunction construe in your complaint liberally sought to include that what you would originally sued for was wage draft after constructive dismissal right correct base of the district judge gave you the benefit of a liberal reading to see the three zero one claim the other claims you're not challenging but concluded that you had not pleaded enough on the second element the unions for each of the duty of unfair representation claim against you but were dismissed were dismissed were appealing the part that says that we have no conceivable cause of action against the union that don't lay in a fifty five year old african american female is not in a protected class and that there can was what the court understood to be your claim against the union if you're not if you're not appealing the dismissal against the union i agree with judge chen i'm not sure what we've got here well what we have is that the judge took it one step that the federal court has diversity jurisdiction all of our cases are in state law claims i don't know what you can find but you have knowledge diversity jurisdiction below that's in the record of page one hundred nine hour you're arguing that it urge in concluding that it had diversity as well as federal question jurisdiction but you're not disputing federal question jurisdiction which is all we care about right now we're not interested in whether or not there was or was not diversity jurisdiction here  the issue against the union is that we believe that there is a conceivable cause of action which we don't want to see an order saying that there isn't and we did not assert the cause of action that the union said we asserted they were moved into federal court and said we think they could  me ask my question there's case law that the preemptive force of section three zero one is so powerful that it displaces all clients substantially depending on a collective bargaining agreement so to that extent i don't understand what your argument here yes well we're saying that she paid union dues for twelve years she was actively paying union dues she was a union card carrying member of the time that the union said we're not going to represent you in your i person playing that situation against montefiore and they didn't was that not preempted well in that we're not we're not saying that on that potential case that the that the federal courts should have jurisdiction were saying that the federal court couldn't say that we don't have a can see because of action against them she paid her dues she was paying your dues at the time she asked them for help they said oh we we're seeing that we believe that there is a can see photos of action breach of contract against the union because they didn't represent her at all they refused to represent her and they did it for erbitux in bad faith grounds because of her age they didn't want to pay for her college tuition reimbursement never decided on our application of the opportunity to amend your pleading and that wasn't taken advantage of it was my understanding that we were still in discussions with the union with regards to them taking over their defense we did not get  an automatic order that came in at the time that they filed it as opposed to on our motion to dismiss you're telling me facts you're not telling me why the court was wrong to conclude that you had been granted leave to amend and you declined to do so you never there after sought leave to amend we did not believe that the court could say in a hypothetical that you're enjoined from suing the union on theories of liability that you never even raised if you want to  the way to do it is to go to the district court and say we'd like to amend the complaint you never did that and you will grant you had been urged to amend before so to come to us and say you were somehow unfairly treated by not being granted leave to him and is something i'm having difficulty understanding what i'm what i'm i'm missing here we believe that the court went too far in saying not only are we going to dismiss the case we didn't state a case against the union we would have been fine with that but it went further and said that you don't have any conceivable cause of action against the union they didn't do that they didn't do that they didn't say that you have a conceivable cause of action against the union they said you have ht you have represented to the court consistent with the federal rules that you have a good faith basis to see that part yes we did if they don't know it and before the court and tell us you were not filing a claim against the union you named no i i apologize for him spoke i meant that if the court dismissed the cause of action that we did file against the union is one thing but the court dismissed that conceivable cause of action which the defendant the attorney for the union came up with and said that well this is what i think that they should sue us on and this is why i think it should be dismissed let us make the claims that the court were irgun to say that is dismissed or not that's you so in the union i don't know that i have much to say assuming that she's suing the union on basis on the claim of discrimination there is nothing in the complaint that would warrant such a claim wallet's in the complaint is that ms lane is over the age of forty and she's multicultural there is nothing that states that the union did anything or didn't do anything relating to our age or race in the court below who she sued was so into the wage theft prevention apparently now ms lane has abandoned those claims because she doesn't state anything about them in her papers to this court so the only claims that she could possibly have low she really have been set forth such claims in the court below are either the discrimination claim which is barred by the fact that this is going never filed a complaint against the union either at the the duty of fair representation which she didn't say anything about in the lower court until she submitted an affirmation in opposition to the union's motion to dismiss and judge firman noted if you if you're going to want to add new or additional claims the proper procedure is to move through amend the complaint and the plate of in the court below you never moved never took advantage of the opportunity which judge firman gave to amend the complaint there is nothing in the complaint that sets forth any arbitrary discriminatory or bad faith conduct by the union provides a lot more information but there guards to our potential conceivable cause of action against the union it shows her paychecks in which the union were taking money from her paychecks for twelve years and it shows her preferences which were stellar and it also shows that she was asking the union for representation of or asking them for help and they were willing to take her money but they were not willing to help her when she was told that if she did not give up her tenure her benefits  action reimbursements and apply for purdy in position that she would be terminated she went to the union she asked the uni did everything she could with the union the union let her on they said that we can go to arbitration we can do this we'll work with you richard dorn spoke with me personally we'll work with you but it never happened instead they removed the case to federal court on the basis of speculative theories which we may have against the union and then move to dismiss that on the basis that we couldn't state a cause  so my concern here is the lower court order we are proceeding against montefiore in the bronx our concern is that the lower court order sets a negative pre sentence saying that there is diversity jurisdiction in a case in which all the defendants are located in the form state court which i believe is country to statute regardless of what i may believe or not upon looking at statute you don't have to bursty jurisdiction if all of the defendants are located in the form state  and i also believe that miss lane was in a protected class as a fifty five year old african american female she's seated here in the court room to the left and i further believe that it is an abuse of discretion to say that we don't have any conceivable cause of action when the court never even addressed her primary injunction which has momentous records showing that we do have a can see full cause of action against the union they can't take money from people for twelve years and then try to woman like an old boot just because she's approaching men a pause or just because she's she was going through a divorce at the time or just because they didn't want to pay for tuition reimbursement for somebody who doesn't have a long career path ahead of her  to a twenty five year old again i'm not here to appeal the fact that we didn't state a cause of action against the union we were hoodwinked by the union i'm stating that the court went a little bit too far in saying that we don't have in that they do have diversity jurisdiction in a case in which all of the defendants are located in the bronx the form state and i'm saying that it went too far in saying that a fifty five year old african american female all in the preliminary injunction application that we filed which was never