Subway International B v. v. Panayota Bletas ( 2013 )

12-1204
Subway Int’l B.V. v. Bletas
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
22nd day of February, two thousand thirteen.
PRESENT:
JOHN M. WALKER, JR.,
ROBERT A. KATZMANN,
GERARD E. LYNCH,
Circuit Judges.
_______________________________________
Subway International B.V.,
Plaintiff-Appellee,
v. 12-1204
Panayota Bletas,
Defendant-Appellant,
John Bletas,
Defendant.
_______________________________________
FOR PLAINTIFF-APPELLEE: Michael Kenny (Aaron S. Bayer and Bethany L.
Appleby), Wiggin and Dana LLP, New Haven, CT.
FOR DEFENDANT-APPELLANT: Panayota Bletas, pro se, Athens, Greece.
Appeal from a judgment of the United States District Court for the District of
Connecticut (Hall, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment is AFFIRMED.
Appellant Panayota Bletas, proceeding pro se, appeals from the district court’s judgment
granting Subway International B.V.’s (“SIBV”) application for confirmation of an arbitration
award. Ms. Bletas raises three principal arguments: (1) the district court did not have personal
jurisdiction over her because she did not receive proper service of process; (2) the arbitrator’s
award was barred by res judicata; and (3) the arbitration award cannot be confirmed because it
violated public policy. We assume the parties’ familiarity with the underlying facts, the
procedural history, and the issues on appeal.
It is well settled that lack of personal jurisdiction is a defense that can be waived by
failure to assert it seasonably or by submission through conduct. See Neirbo Co. v. Bethlehem
Shipbuilding Corp., 308 U.S. 165, 168 (1939). We review a district court’s ruling that a
defendant waived or forfeited a personal jurisdiction defense for abuse of discretion. See
Hamilton v. Atlas Turner, Inc., 197 F.3d 58, 60 (2d Cir. 1999). The district court did not abuse
its discretion in concluding that Ms. Bletas forfeited her improper service defense by
participating in a settlement conference and filing multiple motions without mentioning the
defense.1 See Datskow v. Teledyne, Inc., 899 F.2d 1298, 1303 (2d Cir. 1990); Hamilton, 197
F.3d at 61-62.
1
Ms. Bletas contends for the first time in her reply brief that she actually did raise her
improper service defense during the settlement conference. It is not clear whether she made the
same claim to the district court, which would have been in a much better position to determine
its accuracy. In any event, we will not consider her contention because Ms. Bletas did not raise
it in her opening brief to this court. See Evangelista v. Ashcroft, 359 F.3d 145, 156 n.4 (2d Cir.
2004) (“[We] will not consider an argument raised for the first time in a reply brief.” (internal
quotation marks omitted)).
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We also reject Ms. Bletas’s argument that a prior arbitration award precluded the award
involved in this case under the doctrine of res judicata. The prior arbitration award cited by Ms.
Bletas cannot preclude the award at issue in this case because the claims asserted in this
arbitration could not have been raised in the prior one. See Allen v. McCurry, 449 U.S. 90, 94
(1980). As the district court ably explained, the two arbitration proceedings involved separate
franchise agreements that, per the terms of the agreements, could not have been arbitrated in the
same proceeding.
Finally, with respect to the district court’s confirmation of the arbitration award, we
review findings of fact for clear error and conclusions of law de novo. See Idea Nuova, Inc. v.
GM Licensing Grp., Inc., 617 F.3d 177, 180 (2d Cir. 2010). Upon such review, we conclude that
Ms. Bletas’s appeal is without merit substantially for the reasons articulated by the district court
in its order granting SIBV’s application.
We decline to consider the numerous arguments that Ms. Bletas raises for the first time
on appeal. See Singleton v. Wulff, 428 U.S. 106, 120-21 (1976); Virgilio v. City of N.Y., 407
F.3d 105, 116 (2d Cir. 2005). We have considered all of Ms. Bletas’s arguments that are
properly before us and find them to be without merit. Accordingly, the judgment of the district
court is hereby AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
3