Patton v. Johnson , 915 F.3d 827 ( 2019 )

United States Court of Appeals
For the First Circuit
No. 18-1750
RICKIE PATTON and CATHLEEN MARQUARDT,
Plaintiffs, Appellees,
v.
BARRY JOHNSON,
Defendant, Appellant,
and
STEVEN JOHNSON, individually and as LAW OFFICES OF
STEVEN M. JOHNSON d/b/a THE JOHNSON LAW FIRM,
Co-defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, U.S. District Judge]
[Hon. Patricia A. Sullivan, U.S. Magistrate Judge]
Before
Barron, Circuit Judge,
Souter, Associate Justice,
and Selya, Circuit Judge.
Samuel D. Zurier for appellant.
Matthew S. Dawson, with whom Lynch & Pine, Attorneys at Law,
LLC was on brief, for appellees.

Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
February 11, 2019
SELYA, Circuit Judge. Over time, this case has become
a procedural motley. In its current iteration, defendant-
appellant Barry Johnson emphasizes his association with the
Johnson Law Firm (JLF) in attempting to compel the plaintiffs,
Rickie Patton and his wife Cathleen Marquardt, to arbitrate various
tort claims (including their claims of legal malpractice). The
district court, adopting a magistrate judge's report and
recommendation (R&R)1 and applying principles of collateral
estoppel derived from Rhode Island law, determined that the
appellant was barred from relitigating his contention that the
claims should be heard before an arbitrator. The appellant assigns
error. After threading our way through the labyrinth of prior
proceedings, we affirm.
I. BACKGROUND
We briefly rehearse the background and travel of the
case. In 2007, the plaintiffs retained defendants JLF and Steven
M. Johnson to represent them in a products liability suit
concerning an allegedly defective hernia mesh device (Kugel Mesh).2
The parties executed an Attorney Representation Agreement (the
1
The district court entered a brief order, which adopted and
incorporated by reference the R&R. See Patton v. Johnson (Patton
I), No. 17-259WES, 2018 WL 3655785, at *1 (D.R.I. Aug. 2, 2018).
We refer to the order and the R&R, together, as Patton I.
2 Despite their identical surnames, the appellant is not
related to Attorney Stephen M. Johnson, who is the principal of
JLF (his eponymous law firm).
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ARA), which contained a three-paragraph arbitration provision.
The plaintiffs did not, however, initial or otherwise specifically
acknowledge the arbitration paragraphs.
JLF filed the plaintiffs' products liability suit in the
United States District Court for the Southern District of Texas.
As part of a centralized multi-district litigation proceeding, see
28 U.S.C. § 1407, the suit was subsequently transferred to the
District of Rhode Island, where it joined more than 1,000 similar
suits brought against the Rhode Island-based Kugel Mesh
manufacturer. In due course, JLF hired the appellant as an
employed attorney. In that capacity, the appellant worked, inter
alia, on the plaintiffs' suit.
When the suit was settled in 2015, a dispute arose among
the plaintiffs, the appellant, JLF, and John Deaton (the Rhode
Island-based local counsel retained by JLF). Central to this
dispute were representations allegedly made by the appellant
concerning settlement amounts. The dispute was not resolved, and
the appellant came to believe that the plaintiffs would be filing
a malpractice suit against him.
In an attempt to get out in front of such a suit, the
appellant — in April of 2016 — filed a civil action against JLF
and Patton in a Texas state court seeking to compel arbitration
based on the provisions of the ARA. Patton challenged the court's
jurisdiction over his person, as did Deaton (who had been impleaded
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by JLF). The Texas trial court rejected these jurisdictional
challenges, striking the special appearances made on behalf of
both Patton and Deaton. Deaton appealed, and the Texas Court of
Appeals affirmed. See Deaton v. Johnson, No. 05-16-01221-CV, 2017
WL 2991939, at *4 (Tex. App. July 14, 2017), review dismissed (Aug.
10, 2018).
While Deaton's appeal was pending, JLF initiated a
Judicial Arbitration and Mediation Service (JAMS) arbitration
proceeding against Patton in Fort Worth, Texas. The appellant was
not named as a party to the JAMS arbitration. Patton challenged
JLF's right to arbitrate, arguing that the uninitialed arbitration
paragraphs in the ARA were of no effect. By decision dated
November 15, 2016, the arbitrator determined that the ARA did not
contain a valid and enforceable agreement to arbitrate.
Accordingly, the arbitrator dismissed the JAMS proceeding.
The plaintiffs made the next move. On April 3, 2017,
they sued the appellant, JLF, and JLF's principal in a Rhode Island
state court, asserting claims for malpractice, other torts, and
unfair trade practices (all relating to the handling and settlement
of the plaintiffs' Kugel Mesh suit). The defendants removed the
suit to the United States District Court for the District of Rhode
Island, noting diversity of citizenship and the existence of a
controversy in the requisite amount. See 28 U.S.C. §§ 1332(a),
1441. At roughly the same time, the appellant initiated a second
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JAMS arbitration proceeding against Patton in Texas, premised upon
the arbitration provision in the appellant's 2013 employment
agreement with JLF — an agreement to which the plaintiffs were not
parties. By means of this proceeding, the appellant sought what
amounted to a declaration that the plaintiffs were bound to
arbitrate their claims against him. The appellant proceeded to
file a motion to compel arbitration in the United States District
Court for the Northern District of Texas.
With this foundation in place, the appellant turned his
attention to the Rhode Island case, moving to stay the civil action
and compel arbitration pursuant to the Federal Arbitration Act
(FAA). See 9 U.S.C. §§ 3,4. His motion sought to invoke the
arbitration provisions of both his 2013 employment agreement and
the ARA. While his motion was pending before the federal district
court in Rhode Island, the federal district court in Texas denied
the appellant's motion to compel arbitration on the ground that
the 2013 employment agreement did not in any way bind Patton.
Consequently, the court dismissed the Texas suit without
prejudice.
Back in Rhode Island, the appellant abandoned his
reliance on the 2013 employment agreement. Nevertheless, he
continued to pursue his motion to compel arbitration, relying
exclusively on the uninitialed arbitration paragraphs contained in
the ARA. He alleged in relevant part that he was not a party to
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the first JAMS arbitration and, thus, was not bound by the decision
of the first JAMS arbitrator (who had found the uninitialed
arbitration paragraphs in the ARA impuissant as to Patton). The
plaintiffs opposed this motion, arguing that the appellant was in
privity with JLF and was therefore precluded from re-litigating
the issue of arbitrability under principles of collateral
estoppel.
The court below referred the appellant's motion to
compel arbitration to a magistrate judge, who applied Rhode Island
law and concluded that principles of collateral estoppel
foreclosed the appellant's attempt to invoke the arbitration
provision of the ARA. Accordingly, the magistrate judge
recommended that the appellant's motion to compel arbitration be
denied. See Patton I, 2018 WL 3655785, at *9. Represented by new
counsel, the appellant served written objections to the R&R, but
the district court overruled the objections, adopted the R&R, and
denied the motion to compel arbitration. See id. at *1. This
timely appeal followed.
II. ANALYSIS
Before beginning our analysis, we pause to smooth out a
procedural wrinkle. We then proceed to the merits.
A. Judicial Review of the R&R.
"[A]s Article I judicial officers, magistrate judges
ordinarily may not decide motions that are dispositive either of
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a case or of a claim or defense within a case." PowerShare, Inc.
v. Syntel, Inc., 597 F.3d 10, 13 (1st Cir. 2010). While a
magistrate judge may decide a non-dispositive motion, see Fed R.
Civ. P. 72(a), she may only make a recommended disposition of a
dispositive motion, see Fed. R. Civ. P. 72(b).
This dispositive/non-dispositive dichotomy has
implications for judicial review. When a magistrate judge issues
a recommended decision on a dispositive motion and an objection is
interposed, district court review is de novo. See id. By
contrast, when a magistrate judge enters an order resolving a non-
dispositive motion and a first-tier appeal is taken to the district
court, review is for clear error (that is, the district court must
accept the magistrate judge's findings of fact and inferences drawn
therefrom unless those findings and inferences are clearly
erroneous). See Fed. R. Civ. P. 72(a); Phinney v. Wentworth
Douglas Hosp., 199 F.3d 1, 4 (1st Cir. 1999).
In this case, the magistrate judge treated the
appellant's motion to compel arbitration as a dispositive motion
and recommended a decision. See Patton I, 2018 WL 3655785, at *1.
This was error because a motion to compel arbitration is a non-
dispositive motion. See PowerShare, 597 F.3d at 14. Accordingly,
an order, not a recommended decision, would have been the
appropriate vehicle for the magistrate judge's findings and
conclusions.
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But the district court came to the rescue: it recognized
this discrepancy and treated the R&R as an order. See Patton I,
2018 WL 3655785 at *1. The district court's prophylactic action
cured the defect and rendered any procedural error harmless. See
United States v. Weissberger, 951 F.2d 392, 398 (D.C. Cir. 1991)
(holding that district court's application of proper standard of
review "cured any arguable defect" in magistrate judge's order).
That the error was harmless is all the more evident
because the appellant's motion to compel turned on questions of
law. See, e.g., PowerShare, 597 F.3d at 14 (explaining that
"interpreting a contractual term [is] a question of law for the
courts"); Monarch Life Ins. Co. v. Ropes & Gray, 65 F.3d 973, 978
(1st Cir. 1995) ("The applicability vel non of preclusion
principles is a question of law."). This is significant because
a magistrate judge's answers to questions of law, whether rendered
in connection with a dispositive motion or a non-dispositive
motion, engender de novo review. See PowerShare, 597 F.3d at 15(explaining that, for questions of law, "there is no practical
difference between review under Rule 72(a)'s 'contrary to law'
standard and review under Rule 72(b)'s de novo standard"). It
follows that whether the magistrate judge issued an R&R or an
order, the district court was obliged to apply the same standard
of review to the questions at issue.
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B. The Merits.
We review de novo the district court's denial of a motion
to compel arbitration. See Nat'l Fed'n of the Blind v. The
Container Store, Inc., 904 F.3d 70, 78 (1st Cir. 2018); Kristian
v. Comcast Corp., 446 F.3d 25, 31 (1st Cir. 2006). We may affirm
the district court's ruling "on any independent ground made
apparent by the record." Escobar-Noble v. Luxury Hotels Int'l of
P.R., Inc., 680 F.3d 118, 121 (1st Cir. 2012).
To compel arbitration, the movant must demonstrate "that
a valid agreement to arbitrate exists, that [he] is entitled to
invoke the arbitration clause, that the other party is bound by
that clause, and that the claim asserted comes within the clause's
scope." InterGen N.V. v. Grina, 344 F.3d 134, 142 (1st Cir. 2003).
Here, the first JAMS arbitrator answered the question of whether
the ARA contained a valid and enforceable arbitration agreement in
the negative, and the magistrate judge — applying Rhode Island law
— concluded that this determination was entitled to preclusive
effect. See Patton I, 2018 WL 3655785, at *1-2. The appellant
lays siege to this conclusion.
Some groundwork is helpful. "Collateral estoppel,
sometimes called issue preclusion, bars parties from re-litigating
issues of either fact or law that were adjudicated in an earlier
proceeding" before a court or other tribunal of competent
jurisdiction. Robb Evans & Assocs., LLC v. United States, 850
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F.3d 24, 31 (1st Cir. 2017); see Ramallo Bros. Printing, Inc. v.
El Día, Inc., 490 F.3d 86, 89 (1st Cir. 2007) (quoting S. Pac.
R.R. Co. v. United States, 168 U.S. 1, 48 (1897)). The doctrine
serves the "dual purpose of protecting litigants from the burden
of relitigating an identical issue with the same party or his privy
and of promoting judicial economy by preventing needless
litigation." Sutliffe v. Epping Sch. Dist., 584 F.3d 314, 329
(1st Cir. 2009) (quoting Parklane Hosiery Co. v. Shore, 439 U.S.
322, 326 (1979)). As "issue preclusion prevent[s] relitigation of
wrong decisions just as much as right ones," a court charged with
applying collateral estoppel ought not inquire into the
correctness of the earlier determination of a precluded issue.
Vargas-Colón v. Fundación Damas, Inc., 864 F.3d 14, 29 (1st Cir.
2017) (quoting B & B Hardware, Inc. v. Hargis Indus., Inc., 135 S.
Ct. 1293, 1308 (2015)) (alteration in original).
As a threshold matter, the appellant posits that
collateral estoppel principles are inapposite here because the
arbitrator lacked the authority to decide the issue of whether an
agreement to arbitrate existed. Although the plaintiffs argue
that this issue was not properly preserved for appeal, our review
of the record leaves us less sanguine. Thus, we proceed to
consider the appellant's challenges to the arbitrator's authority
to determine the arbitrability of claims arising in connection
with the ARA.
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To begin, the premise on which the appellant's argument
rests is sound: as a customary tenant, collateral estoppel "is
not implicated if the forum which rendered the prior 'judgment'
(viz., the arbitral award) lacked 'jurisdiction' over the
putatively precluded claim." Wolf v. Gruntal & Co., 45 F.3d 524,
527 (1st Cir. 1995); see, e.g., Montana v. United States, 440 U.S.
147, 153 (1979); S. Pac. R.R., 168 U.S. at 48. But as we explain
below, the appellant's attempt to invoke this premise here is
faulty.
The appellant's principal claim is that the arbitrator
lacked authority to resolve the issue of arbitrability because
that issue already had been resolved by the Texas state court when
it rejected the jurisdictional challenges mounted by Patton and
Deaton. In response to the magistrate judge's statement that "[i]t
is difficult to discern a holding of this scope in the Texas state
court materials filed by the parties," Patton I, 2018 WL 3655785,
at *3 n.5, the appellant does not identify any such holding but,
rather, notes only that the parties' briefing in the Texas court
included arguments on arbitrability. The appellant, though, reads
too much into this briefing: the mere fact that an issue is
briefed before a court, without more, does not mean that the court
decided the issue. See Wingard v. Emerald Venture Fla. LLC, 438
F.3d 1288, 1294 (11th Cir. 2006); Benoni v. Bos. & Me. Corp., 828
F.2d 52, 56 (1st Cir. 1987).
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Critically, there is nothing in the Texas state court's
succinct jurisdictional determination that indicates it was
predicated upon the arbitrability vel non of disputes under the
ARA. Given the nature of the jurisdictional issue, it is equally
likely that the Texas state court's retention of jurisdiction
relied on the facts surrounding the plaintiffs' engagement of JLF.
These facts indicated, among other things, that Texas was the place
where the contract was formed and that Texas was the anticipated
place of performance and payment. See, e.g., Griffith Techs.,
Inc. v. Packers Plus Energy Servs. (USA), Inc., No. 01-17-00097-
CV, 2017 WL 6759200, at *3 (Tex. App. Dec. 28, 2017) (holding that
contract's place of performance is an important consideration with
respect to personal jurisdiction); Hoagland v. Butcher, 474 S.W.3d
802, 815 (Tex. App. 2014) (same). Thus, there is no principled
way in which we can read the Texas state court's jurisdictional
determination as a determination that a valid and enforceable
agreement to arbitrate existed.
The appellant has a fallback position. He argues that
the first JAMS arbitrator exceeded his authority because the
parties did not agree to submit the question of arbitrability to
an arbitrator. This is whistling past the graveyard.
Parties to a contract may, by mutual agreement, place
before an arbitrator "not only the merits of a particular dispute
but also 'gateway' questions of 'arbitrability,' such as whether
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the parties have agreed to arbitrate or whether their agreement
covers a particular controversy." Henry Schein, Inc. v. Archer &
White Sales, Inc., ___ S. Ct. ___, ___ (2019) [2019 WL 122164, at
*3 (2019)] (quoting Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63,
68-69 (2010)). For such gateway questions, a court "should not
assume that the parties agreed to arbitrate arbitrability unless
there is clear and unmistakable evidence that they did so." Id.at ___ [2019 WL 122164, at *6] (quoting First Options of Chi.,
Inc. v. Kaplan, 514 U.S. 938, 944 (1995)).
The "clear and unmistakable evidence" standard is
demanding. See Shank/Balfour Beatty v. Int'l Bhd. of Elec. Workers
Local 99, 497 F.3d 83, 89-90 (1st Cir. 2007); Marie v. Allied Home
Mortg. Corp., 402 F.3d 1, 14 (1st Cir. 2005). Generally speaking,
a court must look to the language of the parties' agreement to
determine whether the agreement to arbitrate extends to questions
of arbitrability. See, e.g., Rent-A-Ctr., 561 U.S. at 66-67;
PowerShare, 597 F.3d at 15-18. Even so, the language of the
contract is not always the exclusive source of relevant
information; the parties' conduct also may herald an agreement to
arbitrate the question of arbitrability. See Local 36 Sheet Metal
Workers' Int'l Ass'n v. Whitney, 670 F.3d 865, 869 (8th Cir. 2012);
Cleveland Elec. Illuminating Co. v. Util. Workers Union of Am.,
440 F.3d 809, 813 (6th Cir. 2006); see also Coady v. Ashcraft &
Gerel, 223 F.3d 1, 9 n.10 (1st Cir. 2000) (explaining that
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"[p]arties may supplement by their submissions the authority
granted an arbitration panel under a contract"). Relatedly, "a
court must defer to an arbitrator's arbitrability decision when
the parties submitted that matter to arbitration." First Options,
514 U.S. at 943.
The decision in Cleveland Electric is instructive.
There, the Sixth Circuit determined that parties who "submitted
the question of arbitrability to the arbitrator for his
determination" and manifested no intent to "reserve the question
of arbitrability for the court" had "clearly and unmistakably
consented" to arbitrate questions of arbitrability. 440 F.3d at
813. In making this determination, the court convincingly
distinguished First Options, in which the Supreme Court found that
because parties had filed written objections to the arbitration in
which they challenged the arbitrators' jurisdiction over questions
of arbitrability, those parties "did not clearly agree to submit
the question of arbitrability to arbitration." 514 U.S. at 947.
Here, we discern much the same type of factual mosaic
that the Sixth Circuit found persuasive in Cleveland Electric.
JLF took the unequivocal position before the first JAMS arbitrator
that, pursuant to JAMS rules, the arbitrator had the authority to
adjudicate any "[j]urisdictional and arbitrability disputes,
including disputes over the formation, existence, validity,
interpretation or scope of the agreement under which Arbitration
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is sought." All of the parties to the first JAMS arbitration
submitted briefs to the arbitrator on the issue of whether the
claims asserted were arbitrable at all, and no one questioned the
arbitrator's authority to decide that issue. Nor did any party
seek to vacate the arbitrator's decision on such a ground. Given
this history, we conclude that the parties to the first JAMS
arbitration clearly and unmistakably accepted the proposition that
the arbitrator possessed the requisite authority to determine
whether claims arising under the ARA were arbitrable.
Our conclusion that the first JAMS arbitrator had
authority to decide the issue of arbitrability brings us to the
next facet of the appellant's asseverational array. The magistrate
judge, following the parties' lead, applied Rhode Island law and
concluded that collateral estoppel principles demanded the denial
of the appellant's motion to compel arbitration. See Patton I,
2018 WL 3655785, at *7. The appellant now submits that the court
below should not have applied Rhode Island law in resolving this
question. Instead, he contends that Texas law should control.
With respect to the preclusive effect of an unconfirmed
arbitral award,3 it is an open question whether, in this diversity
3 Under the Full Faith and Credit Act, 28 U.S.C. § 1738, we
are required to "give the same preclusive effect to state court
judgments that those judgments would be given in the courts of the
State from which the judgments emerged." Kremer v. Chem. Const.
Corp., 456 U.S. 461, 466 (1982). An arbitration award that has
been reviewed by a state court may fall within the ambit of the
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action, we should apply the choice-of-law rules of the forum state
(Rhode Island), see Cochran v. Quest Software, Inc., 328 F.3d 1,
6 (1st Cir. 2003), or the choice-of-law rules dictated by federal
common law, see McDonald v. City of W. Branch, Mich., 466 U.S.
284, 288 (1984). The absence of controlling authority is not
surprising as "[t]he source of the law that governs the preclusion
consequences of an [unconfirmed] arbitration award has not been
much developed." 18B Charles Alan Wright et al., Federal Practice
and Procedure § 4475.1 (2d ed. 2002); see W.J. O'Neil Co. v.
Shepley, Bulfinch, Richardson & Abbott, Inc., 765 F.3d 625, 629
(6th Cir. 2014) (referring to the source-of-law issue for
unconfirmed arbitral awards as "underdeveloped and murky").
Here, however, we need not explore this uncertain
source-of-law terrain. In his briefing before the magistrate
judge, the appellant stated unequivocally that the preclusive
effect of the arbitrator's ruling "should be determined under Rhode
Island law, because this issue does not involve the construction
of the ARA and is therefore not subject to determination under
Texas law." The other parties acquiesced. Where, as here, all
Full Faith and Credit Act. See In Re CWS Enters., Inc., 870 F.3d
1106, 1119 (9th Cir. 2017); Ryan v. City of Shawnee, 13 F.3d 345,
347 (10th Cir. 1993); Jalil v. Avdel Corp., 873 F.2d 701, 704 (3d
Cir. 1989). It is settled beyond hope of peradventure, though,
that "section 1738's 'full faith and credit' provision does not
apply to unconfirmed arbitral awards." Wolf, 45 F.3d at 527 n.3
(citing McDonald v. City of W. Branch, Mich., 466 U.S. 284, 287-
88 (1984)) (emphasis in original).
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parties agree to the application of a particular source of law, a
court is "free to 'forego an independent analysis and accept the
parties' agreement.'" Hershey v. Donaldson, Lufkin & Jenrette
Sec. Corp., 317 F.3d 16, 20 (1st Cir. 2003) (quoting Borden v.
Paul Revere Life Ins. Co., 935 F.2d 370, 375 (1st Cir. 1991)).
The magistrate judge followed this praxis, stating explicitly that
she was applying Rhode Island law at the parties' behest. See
Patton I, 2018 WL 3655785, at *7 n. 10.
In this venue, the appellant reverses direction and
assigns error to the district court's reliance on Rhode Island
collateral estoppel law. But a party cannot so easily change
horses in midstream, abandoning a position that he advocated below
in search of a swifter steed. We think it self-evident that a
party cannot invite the trial court to employ one source of
applicable law and then — after the trial court has accepted his
invitation — try to convince the court of appeals that some other
source of law would be preferable. See Lott v. Levitt, 556 F.3d
564, 568 (7th Cir. 2009); Ortiz v. Gaston Cty. Dyeing Mach. Co.,
277 F.3d 594, 597 (1st Cir. 2002). After all, the appellant "is
not entitled to get a free peek at how his dispute will shake out
under [Rhode Island] law and, when things don't go his way, ask
for a mulligan under the laws of a different jurisdiction." Lott,
556 F.3d at 568. The opposite is true: "[w]hen the parties agree
on the substantive law that should govern, 'we may hold the parties
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to their plausible choice of law.'" Lluberes v. Uncommon Prods.,
LLC, 663 F.3d 6, 23 (1st Cir. 2011) (quoting Perry v. Blum, 629
F.3d 1, 8 (1st Cir. 2010)).
To be sure, in the memorandum of law that accompanied
his objections to the magistrate judge's R&R, the appellant couched
his arguments in terms of Texas collateral estoppel law. But this
was little more than an attempt to lock the barn door after the
horses had galloped away. A party cannot successfully urge a
magistrate judge to apply a particular body of law and then,
dissatisfied with the outcome that he invited, ask the district
court to apply some other body of law. See Robb Evans & Assocs.,
850 F.3d at 35, ("[T]he law is settled that a litigant must put
its best foot forward before a magistrate judge, and cannot
introduce new arguments for the first time on the district court's
review of the magistrate judge's ruling or recommendation.").
"[I]t would be fundamentally unfair to permit a litigant to set
its case in motion before the magistrate, wait to see which way
the wind was blowing, and — having received an unfavorable
recommendation — shift gears before the district judge." Paterson-
Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 991
(1st Cir. 1988).
To say more on this point would be to paint the lily.
Since the appellant has waived any argument for an alternative
choice of law, we conclude that Rhode Island collateral estoppel
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principles must be applied here. To hold otherwise would be to
sanction the use of misdirection as a tool for subsequent appellate
advocacy. See id. ("[A party cannot] feint and weave at the
initial hearing, and save its knockout punch for the second
round.").
Under Rhode Island law, the doctrine of collateral
estoppel provides that an issue "that has been actually litigated
and determined cannot be re-litigated between the same parties or
their privies in future proceedings." Commercial Union Ins. Co.
v. Pelchat, 727 A.2d 676, 680 (R.I. 1999). "Subject to situations
in which application of the doctrine would lead to inequitable
results," Foster-Glocester Reg'l Sch. Comm. v. Bd. of Review, 854
A.2d 1008, 1014 (R.I. 2004), collateral estoppel under Rhode Island
law requires that there is an identity of issues; that the prior
proceeding resulted in a final judgment on the merits; and that
the party against whom collateral estoppel is asserted is the same
as or in privity with a party from that proceeding, see E.W. Audet
& Sons, Inc. v. Fireman's Fund Ins. Co., 635 A.2d 1181, 1186 (R.I.
1994). The district court found that this case fit comfortably
within the Rhode Island collateral estoppel framework: there was
a sufficient identity of issues; the arbitral decision, though
unconfirmed, was a final judgment warranting preclusive effect;
the appellant was in privity with JLF and, therefore, was bound by
the arbitral decision; and application of the doctrine would not
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lead to any inequitable results. See Patton I, 2018 WL 3655785,
at *1-9.
In his briefs before this court, the appellant does not
challenge the correctness of the district court's application of
Rhode Island collateral estoppel principles. Rather, the
appellant makes a more limited argument, submitting only that Texas
collateral estoppel law should be applied. He does not argue at
all that the court below misapplied Rhode Island collateral
estoppel law.
"It is axiomatic that arguments not developed on appeal
are abandoned." Soto-Cintrón v. United States, 901 F.3d 29, 32
n.3 (1st Cir. 2018) (citing United States v. Zannino, 895 F.2d 1,
17 (1st Cir. 1990)); see Rivera-Gomez v. de Castro, 843 F.2d 631,
635 (1st Cir. 1988) (explaining that "a litigant has an obligation
'to spell out its arguments squarely and distinctly' or else
forever hold its peace" (quoting Paterson-Leitch, 840 F.2d at
990)). It follows inexorably, as night follows day, that the
appellant has waived any claim of error regarding the magistrate
judge's analysis under Rhode Island collateral estoppel law.
Accordingly, the denial of the appellant's motion to compel
arbitration must stand.
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III. CONCLUSION
We need go no further. For the reasons elucidated above,
the judgment of the district court is affirmed, and the case is
remanded for further proceedings consistent with this opinion.
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