Ironshore Specialty Ins. Co. v. Eidos Partners, LLC ( 2015 )


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  •     14-0382-cv
    Ironshore Specialty Ins. Co. v. Eidos Partners, LLC
    UNITED STATES COURT OF APPEALS
    FOR THE SECOND CIRCUIT
    AMENDED 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 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 15th
    day of January, two thousand fifteen.
    PRESENT:
    GUIDO CALABRESI,
    BARRINGTON D. PARKER,
    DEBRA ANN LIVINGSTON,
    Circuit Judges.
    _______________________________________________
    ABC,
    Plaintiff,
    - v. -
    IRONSHORE SPECIALTY INSURANCE COMPANY,
    Petitioner-Appellee,
    - v. -                                                      No. 14-0382-cv
    DEF,
    Defendant,
    - v. -
    EIDOS PARTNERS, LLC, EIDOS III, LLC, EIDOS, IV, LLC,
    EIDOS DISPLAY, LLC, EIDOS ADVANCED DISPLAY, LLC,
    KAMDES IP HOLDING, LLC, EIDOS, LLC,
    Respondents-Appellants.
    _______________________________________________
    1
    GASPARE J. BONO (Gaspare J. Bono and Charles E. Dorkey
    III, on the brief), McKenna Long & Aldridge, Washington,
    DC, for Respondents-Appellants.
    PETER A. STROILI (Peter A. Stroili and Kevin J. Windels, on
    the brief), D’Amato & Lynch, LLP, New York, NY, for
    Petitioner-Appellee.
    UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, and DECREED
    that the judgment of the district court is AFFIRMED.
    On November 2, 2010, Eidos Partners, LLC, Eidos Display, LLC, Eidos III, LLC, Eidos IV,
    LLC, Eidos Advanced Display, LLC and Kamdes IP Holdings, LLC (collectively “Eidos”), obtained
    a debt facility from Stairway Capital Management II L.P. (“Stairway”) in order to fund a patent
    enforcement litigation program.      That same day, Ironshore Specialty Insurance Company
    (“Ironshore”) executed an insurance policy (the “Policy”) providing coverage to Eidos in case Eidos
    did not recoup at least the amount of Stairway’s loan through its patent enforcement litigation
    program. On October 8, 2013, Ironshore served on Eidos a Demand for Arbitration and Statement
    of Claim. It sought to have the Policy declared void ab initio due to alleged misrepresentations
    made by Eidos and its attorneys, and in the alternative sought a declaratory judgment that no
    coverage was due under the Policy because no “Covered Event” had occurred. Ironshore made a
    second argument in the alternative that the limit of liability under the Policy had been reduced.
    On November 26, Ironshore filed a petition in the United States District Court for the
    Southern District of New York to compel Eidos to arbitrate the dispute. In response, Eidos
    acknowledged that the dispute was governed by the Policy’s dispute resolution provision providing
    for mandatory arbitration, but argued that arbitration was premature because the parties had not yet
    engaged in a reconciliation meeting. Eidos declared:
    2
    The Policy unquestionably provides a three-step process for any disputes that arise
    in connection the [sic] Policy, namely: (1) reconciliation of outstanding issues on
    amount of loss, (2) non-binding mediation, and then (3) arbitration before the
    American Arbitration Association (‘AAA’).
    J.A. 144.
    After a reconciliation meeting was held, on January 17, 2014, the district court (Forrest, J.),
    ordered Ironshore and Eidos to proceed with mediation, followed by arbitration if such mediation
    were unsuccessful. Eidos filed a motion to reconsider, arguing (contrary to its prior position) that
    litigation rather than arbitration was required in order to resolve the dispute because Stairway was
    the real party in interest and was not bound by the Policy’s arbitration provision. The district court
    denied Eidos’s motion, finding that “Eidos exclusively raises arguments that it did not raise in its
    original opposition to Ironshore’s petition.” J.A. 486.       Eidos now appeals the district court’s
    January 17 order compelling mediation and arbitration, and its denial of Eidos’s motion for
    reconsideration. We assume the parties’ familiarity with the underlying facts and procedural history
    of the case, and with the issues on appeal.
    We generally do not consider arguments not raised in the first instance unless “necessary to
    avoid a manifest injustice.” In re Nortel Networks Corp. Secs. Litig., 
    539 F.3d 129
    , 133
    (2d Cir. 2008). Further, we generally do not “consider an argument on appeal that was raised for
    the first time below in a motion for reconsideration.” Analytical Surveys, Inc. v. Tonga Partners,
    L.P., 
    684 F.3d 36
    , 53 (2d Cir. 2012). Eidos’s current appeal primarily advances arguments for why
    the dispute regarding Ironshore’s coverage under the Policy is not subject to arbitration that were
    not raised in its initial opposition to Ironshore’s petition to compel arbitration, or even in its motion
    for reconsideration. Eidos has not demonstrated that a manifest injustice will occur if we do not
    consider its current arguments, and it easily could have raised those arguments in its initial
    opposition. Accordingly, we hold Eidos’s arguments to be forfeited. To the extent that Eidos now
    advances arguments that it did make to the district court, we affirm for substantially the same
    reasons stated in the orders of the district court from which Eidos has appealed.
    3
    For the foregoing reasons, the decisions of the district court are AFFIRMED. The mandate
    shall issue forthwith.
    FOR THE COURT:
    Catherine O’Hagan Wolfe, Clerk
    4
    

Document Info

Docket Number: 14-0382-cv

Filed Date: 1/15/2015

Precedential Status: Non-Precedential

Modified Date: 4/18/2021