Rickie Patton and Cathleen Marquardt v. Barry Johnson and Steven Johnson, d/b/a The Johnson Law firm

Over time, this case has become

a procedural motley. In its current iteration, defendantappellant

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 nondispositive

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 nondispositive

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

- 11 -

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.

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.