terms of an agreement made between the parties to a labor contract claim list either be treated as a section three on one claim or dismissed as preempted by federal labor contract law however not every dispute concerning employment or implicating collective bargaining agreement is preempted by section three zero one preemption should not be lightly inferred substantial dependence on the collective bargaining agreement is an inexact concept turning on the specific facts of each case and the distinction between looking to a collective bargaining agreement or interpret  collective bargaining agreement is not always clear here the court may eventually look to a collective bargaining agreement or union constitution or by was to look at a sees he makes a claim for race and national origin discrimination for one and that claim should be treated as from those comments at the hearing is that they were out of bankruptcy as of the date of the argument on the summary judgment now that's usually the first i mean according to the federal rules that's the first discovery you can engage in anyway you're not supposed to pound and you know rock authorities are schedule anybody's deposition until initial disclosures that mean they were not actually made documents were not actually produced as part of the initial disclosures until i looked my other day and my office september eleventh is when the international new union mailed me their documents i believe that  there was there was no time and there was no chance really to propound any discovery before they moved for summary judgment and given that posture of the case i think it was an abuse of discretion for the court international union did not like to see a hispanic person in such a high position and so i would like to come back to that race discrimination argument because the trend in the last specially with kramer seems to be that preemption is not going to easily be found and you know that stance look at what happens if you find preemption if you say just because mr merissa is the can discriminate on the basis of religion if that's a bona fide occupational qualification there is nothing in the fair employment and housing act there's nothing on labor management relation defense and i understand the well plead that complaint rule and believe me i understand all of that but they are trying to main goal and twist his claim they're saying just because one of our defenses is we have a legitimate business reason for terminating him and in doing so we're going to have to look to his job description as a financial secretary and look to the constitution and the bylaws for the procedure for removing the union officer so that i say that's fine you can look to those provisions we can see what is the job description and we can see that they supposedly follow the procedure for terminating him but that's still that's not obliterate his response from a nation claim because additional time is needed in the discovery could not of been done before you've just given us a reason in oral argument why it could not have been done before an additional time was needed and i don't see him in the declaration i was the district judge we're supposed to review for abuse of discretion and what i always do when i understand my duty is to do one and that kind of review it's a look at what the district judge had before him and see whether his judgment was within the bounds of discretion faced on what he had before and i look at what he had before me and it's a case with an old file number on it and no reason why nothing nothing has been done before your honor what the district judge had before him and i understand the district judge is impatience with this case but i'm not talking impatience ordinarily a district judge wouldn't we read know asked the court for time to find a third attorney judge larson basically told mr murray sir if you don't find a new attorney within the next month or two i'm going to dismiss your case so i actually wrote a letter to judge  that preceded the motion was not a big part of this district of his life he probably doesn't remember the name today and then he's going to read the motion and see what the reasons are and you're one of believe me i know what you're saying you're saying look look at just my declaration that was in front of the judge but and i'm saying please go beyond that the judge was well aware of mr aris and when i finally came into the courtroom to be his attorney the judge looked up and hold and she knew that there was no discovery in this case the initial disclosures producing documents had not even taken place they only took place after i became his attorney so i think the judge was well aware of the please the court gave a grows in feltham behalf of district council sixteen the international union and the two international officers let me just deal with the status of local four local four has filed a chapter eleven prior to this lawsuit it was in chapter eleven proceedings a plan of arrangement was confirmed in the spring about the time that judge larsen heard this and we judge of motion and counsel for the international was to call it represented to and they're out of bankruptcy today however subsequent to these events the international union put local four in trusteeship because in part of the financial problems that are reflected in this case let me sixty eight is that the court entered an order requiring initial disclosures to mean this is february of two thousand and one a year before the summary judgment is granted   no stay by that man in order and then there's another minute order on the next page on april five two thousand and one in which a number forty seven magistrate judge larson and so what this order means is i'm taking the settlement conference off the calendar because plaintiffs no longer have a lawyer to participate and i don't care about the because right now it's just been we're not going to have a settlement conference yes but it doesn't say the case the state does not and did not ok so the case was never at any point stayed when mr starr all got into the case in august of two thousand and one when he twenty one and this was filed in december of two thousand and one he said at that page at the beginning lines five for purposes only of opposing defendants motions  additional time to conduct discovery under fifty six out now that's certainly not the way to trigger a fifty six act application but he tells the district court magistrate judge that he's not disputing any of the facts that have been presented by the defendants in support of the motions it's only the day before the hearing that will portray before the hearing that he files his fifty six south affidavit in which he focuses only on one issue the issue is the so called kapl factors about whether the international union well the district council somehow is responsible for what local four was doing and there are two problems with that one chaplain wasn't lot that time had been in effect overruled by the later law hong case and number two the only thing he asked for discovery on if you read the fifty sixth affidavit was this employment relationship and certainly the district court was well within its discretion t he had them if i if i see the effect of this fifty six and there's only the only thing that the district court ruled in summary judgment for a lack of evidence was evidence that th words what i'm asking is that what would happen if we disagreed with you could some extent or disagreed with that magistrate judge and preemption of some of these claims what's left that then you have the question of who the parties are at that point because the defamation claim i mean i'm a selective down and the defamation claim alleges only three individuals none of whom were ever served or think we could amend the complaint to allege a federal claim which is a violation of section three one that is that the unions have breached their constitutions and how they terminated me and that would have constitution has removed him improperly by not giving him the procedures he's entitled to and that's something that federal court has jurisdiction over under section three one just as you might have terms of preemption is that what the object case and what the humble case now say is that once you require to interpret the terms of the union constitution which is a contract with of section three or one that claim this preemption now what mr starr was arguing is that that's our defense that is we can't trigger preemption simply by saying the interpretation of the constitution is required but we don't need to do that i mean what i get says is that once it becomes plain from what the case is about that interpretation of either the collective bargaining agreement which is a three i want to agreement or the unions constitution preemption issue by limiting our decisions to the issues that were both raised in the opposition to summary judgment and preserved in the brief on appeal most of the and therefore waive that in terms of that argument one of his other arguments here is that somehow this is criminal conduct the whole bloom kind of case he didn't raise that in the district court either he didn't oppose the motion starting somehow that it's like bloom and therefore that's certainly not here either but what i think it's certainly here because he certainly raised it was the three one preemption issue and asked to read into it very well when all he said was th read the complaint if i can focus on this for a moment this isn't the case let me step back he could have i think done the fog allege that he was terminated solely because he was suspended period end of case a sort of jurisdiction and then we would have a tough time at least out of twelve the six motion arguing preemption but he did the reverse that is the first of many complaint goes on at length to argue about how the defendants violated the union constitution disorganization and disarray within the local he says that he was accused of violating regulations of the i d p a solid excerpt of record six so the complaint is rife with these allegations that the defendants used the versus internationalists submitted