Weinstein v. Levine-Fricke-Recon ( 1998 )

USCA1 Opinion

                         [NOT FOR PUBLICATION]



                    UNITED STATES COURT OF APPEALS

                         FOR THE FIRST CIRCUIT

                         ____________________





No. 97-2240



                     NORMAN J. WEINSTEIN, ET AL.,



                        Plaintiffs, Appellees,



                                  v.



                         LEVINE-FRICKE-RECON,



                         Defendant, Appellant.

                         ____________________





             APPEAL FROM THE UNITED STATES DISTRICT COURT



                   FOR THE DISTRICT OF MASSACHUSETTS



              [Hon. Patti B. Saris, U.S. District Judge]



                         ____________________



                                Before



                        Torruella, Chief Judge,

                   Selya and Boudin, Circuit Judges.



                         ____________________



    M. Robert Dushman and Brown, Rudnick, Freed & Gesmer, P.C. on brief

for appellant.

    Bernard Bressler and Bressler, Amery & Ross on brief for appellees

Norman J. Weinstein and Richard F. Toro.





                         ____________________



                             March 4, 1998

                         ____________________











      Per Curiam.  We have reviewed the submissions of the

    parties and the record on appeal, and we affirm.  The question

    of whether an arbitrable issue existed was properly before the

    district court.  See First Options, Inc. v. Kaplan, 115 S.Ct.

    1920, 1924-25 (1995) (question of whether an issue is subject

    to arbitration should be decided by a court, unless the parties

    specifically provided otherwise); AT&T Technologies, Inc. v.

    Communications Workers of America, 475 U.S. 643, 649 (1986)

    (same).  Appellant's argument that arbitration should have been

    allowed because appellant might later be liable to the

    guarantor was not raised below, so it is waived.  In re Rauh,

    119 F.3d 46, 51 (1st Cir. 1997).  Because the district court

    has allowed arbitration on other related issues since this

    appeal was filed, and that ruling has gone unchallenged, we

    need not address appellant's remaining argument.

        Affirmed.  Loc. R. 27.1.