United States Court of Appeals
For the First Circuit
No. 18-1009
GEORGE P. CONDURAGIS,
Plaintiff, Appellee,
v.
PROSPECT CHARTERCARE, LLC, d/b/a CHARTERCARE HEALTH PARTNERS;
PROSPECT CHARTERCARE PHYSICIANS, LLC, d/b/a CHARTERCARE MEDICAL
ASSOCIATES,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. John J. McConnell, U.S. District Judge]
Before
Howard, Chief Judge,
Selya and Thompson, Circuit Judges.
Jillian S. Folger-Hartwell, with whom Alexsa A. Marino and
Littler Mendelson, P.C. were on brief, for appellants.
Richard A. Sinapi, with whom Joshua D. Xavier and Sinapi Law
Associates, LTD. were on brief, for appellee.
November 30, 2018
THOMPSON, Circuit Judge. The facts giving rise to this
case are familiar to the parties and reported in the district
court's order. So a simple CliffNotes summary suffices for
purposes of this opinion — an opinion that is a companion to our
decision released today, Britto v. Prospect Chartercare, LLC, ___
F.3d ___ (1st Cir. 2018) [No. 18-1009], knowledge of which is
assumed.
Plaintiff sued Defendants in federal court, basically
alleging that they fired him in violation of the Family Medical
Leave Act and the Rhode Island Parental and Family Medical Leave
Act. Defendants later asked the district court to dismiss the
case and compel arbitration based on the parties' signed
arbitration agreement. Concluding, however, that the agreement
failed for lack of consideration, the court denied the motion.
According to the district court, the parties' mutual
promise to arbitrate constituted insufficient consideration to
support the arbitration agreement, because Defendants reserved the
right in an offer letter to change Plaintiff's employment terms,
like submitting disputes to arbitration, at any time —
circumstances, the court said, that made Defendants' promise to
arbitrate illusory. The district court also concluded that
Defendants' offer to keep Plaintiff on as an at-will employee,
made at the time of the agreement's signing, constituted
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insufficient consideration as well — a conclusion, the court added,
driven by a Rhode Island trial court opinion, D. Miguel & Son Co.
v. Barbosa, No. C.A. 84-3186, 1985 WL 663146 (R.I. Super. Ct. Mar.
11, 1985).1
Defendants now appeal. And we review de novo. See,
e.g., Nat'l Fed'n of the Blind v. Container Store, Inc., 904 F.3d
70, 78 (1st Cir. 2018). Without deciding whether Defendants'
rights reservation made their arbitration promise illusory and
thus inadequate consideration, we hold that their offer of
continued at-will employment is valid consideration for the
agreement, given a Rhode Island Supreme Court opinion, Oken v.
Nat'l Chain Co., 424 A.2d 234 (R.I. 1981) — a holding compelled by
our Britto decision, ___ F.3d at ___ [slip op. at 15-16]. Just as
it did for the Britto plaintiff, Oken rejects the very arguments
Plaintiff briefed to us here. And there is no reason to repeat in
these pages what we wrote in Britto.2
1
All agree that Rhode Island contract law controls whether a
valid arbitration agreement exists here.
2
It is worth mentioning — because nothing like this happened
in Britto — that at oral argument Plaintiff for the first time
suggested that if Oken remains "good law," it is only for the
notion that at-will employment is adequate consideration for
modified commission agreements — in other words, Oken's holding
about at-will employment does not apply to any other type of
agreement, at least in Plaintiff's mind. Putting aside that we
see nothing overruling Oken or forbidding its application to
arbitration agreements more broadly, we fall back on the familiar
rule that, "except in extraordinary circumstances, arguments not
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A couple of loose ends remain to be tied up, however,
and we are done.
First, Plaintiff moved in this court to supplement the
record with pages from an employee handbook that he says
"reinforces" his and the district court's view that Defendants
"retained the right to change the terms and conditions of [his]
employment at any time, including the [a]rbitration [a]greement."
Because consideration of the handbook would make no difference to
the result we just reached, we deny the motion. See Riley v.
Rivers, 710 F. App'x 503, 504 (2d Cir. 2018) (summary order).
Second, in the conclusion section of his brief,
Plaintiff suggests for the first time that the arbitration
agreement is "procedural[ly] unconscionabl[e]" and therefore
unenforceable because of the circumstances surrounding the
agreement's signing, at least as he "recalls" the circumstances.
And he asks us to remand "for limited discovery" so he can flesh
out his recollection, which would then allow the district court to
resolve "the issue of procedural unconscionability." Not only
does he fail to give us a legal basis for how we can order discovery
raised in a party's initial brief and instead raised for the first
time at oral argument are considered waived." United States v.
Pulido, 566 F.3d 52, 60 n.4 (1st Cir. 2009) (quoting United States
v. Giggey, 551 F.3d 27, 36–37 (1st Cir. 2008)). And Plaintiff
offered no reason to think this case warrants an exception to that
general rule.
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in the circumstances of this case, he also does not explain how —
in addition to being procedurally unconscionable — the agreement
is substantively unconscionable. See Britto, ___ F.3d at ___ [slip
op. at 19] (noting that Rhode Island law holds "a contract is
unenforceable if it is both procedurally and substantively
unconscionable"). And so we deem the argument waived. See Town
of Norwood v. Fed. Energy Regulatory Comm'n, 202 F.3d 392, 405
(1st Cir. 2000) (stressing that "developing a sustained argument
out of . . . legal precedents" is a litigant's job, not ours); see
also Muñiz v. Rovira, 373 F.3d 1, 8 (1st Cir. 2004) (emphasizing
that a party waives an argument by presenting it "to us in skeletal
form, without citation to any pertinent authority").
The bottom line: We deny Plaintiff's motion to
supplement, reverse the decision of the district court, and remand
the case with instructions to grant Defendants' motion to dismiss
and compel arbitration. Costs to Defendants. See Fed. R. App. P.
39(a)(3).
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