Weinstein v. Levine-Fricke-Recon ( 1998 )

[NOT FOR PUBLICATION]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.