19-3241
Sprague v. Salisbury Bank & Tr. Co.
                    UNITED STATES COURT OF APPEALS
                         FOR THE SECOND CIRCUIT
                                ______________

                                     August Term 2019

                  (Submitted: May 18, 2020 | Decided: August 10, 2020)

                                     Docket No. 19-3241

                       ROBERT C. SPRAGUE, C. ROBIN ZEIGLER,

                                                Plaintiffs-Appellants,

                                               v.

                      SALISBURY BANK AND TRUST COMPANY,

                                              Defendant-Appellee. †
                                       ______________

Before:
                          SACK, WESLEY, CHIN, Circuit Judges.

       Appellants Robert C. Sprague and C. Robin Zeigler appeal the dismissal of
their amended complaint against Salisbury Bank and Trust Company
(“Salisbury”). Appellants allege that Salisbury violated the Fair Credit Reporting
Act, 15 U.S.C. §§ 1681 et seq., and related state law causes of action by, inter alia,
failing to correct information contained in Sprague’s credit report after being
notified that the information was not correct. The United States District Court for
the District of Connecticut (Bryant, J.) dismissed Appellants’ Amended Complaint
with prejudice because Appellants did not allege that they reported the
discrepancy to a consumer reporting agency or that a consumer reporting agency

†   The Clerk of the Court is directed to amend the official caption as set forth above.
notified Salisbury of Sprague’s complaint. Because we agree that Appellants’
allegation that they notified Salisbury directly of their dispute is insufficient to
state a claim under 15 U.S.C. § 1681s–2(b), we AFFIRM the district court’s
decision.
                               _________________

             Clifford Thier, Thier Law Offices, LLC, West Hartford, CT, for
                    Plaintiffs-Appellants.

             Thomas C. Blatchley, Joseph J. Blyskal, Gordon Rees Scully
                 Mansukhani, LLP, Glastonbury, CT, for Defendant-Appellee.
                            _________________

PER CURIAM:

      Appellants Robert C. Sprague and C. Robin Zeigler appeal from a dismissal

of their amended complaint against Salisbury Bank and Trust Company

(“Salisbury”) alleging that Salisbury violated the Fair Credit Reporting Act

(“FCRA”), 15 U.S.C. §§ 1681 et seq., and related state law causes of action.

Specifically, they claim that Salisbury failed to perform a reasonable investigation

and correct inaccurate information contained in Sprague’s credit report. The

United States District Court for the District of Connecticut (Bryant, J.) determined,

inter alia, that, because Appellants did not allege that they reported the error to a

consumer reporting agency (“CRA”) or that a CRA notified Salisbury of the

discrepancy, the Amended Complaint must be dismissed for failure to state a

                                         2
claim. Because we agree that the allegation that Appellants notified Salisbury

directly of their dispute is, standing alone, insufficient to state a claim under 15

U.S.C. § 1681s–2(b), we affirm.

                                   BACKGROUND

       I. Facts

       The relevant facts are straightforward: In 2004, Appellants borrowed

$109,600 from Salisbury to finance the purchase of a house located in North

Canaan, Connecticut. Later that year, Appellants refinanced their mortgage,

borrowing an additional $250,000 from Salisbury.

       In August 2011, Salisbury initiated foreclosure proceedings, resulting in a

judgment of strict foreclosure in favor of Salisbury. 1 The parties stipulated to a

$40,000 deficiency judgment, which the Connecticut Superior Court approved on

April 28, 2014.

1In Connecticut, a court may order foreclosure by sale or strict foreclosure. See Conn.
Gen. Stat. § 49–24. Under Connecticut law, a decree of strict foreclosure “finds the
amount due under the mortgage, orders its payment within a designated time and
provides that should such payment not be made, the debtor’s right and equity of
redemption will be forever barred and foreclosed.” Nat’l City Mortg. Co. v. Stoecker, 888
A.2d 95, 100 (Conn. App. Ct. 2006). When a judgment of strict foreclosure “becomes
absolute and all rights of redemption are cut off,” it “constitutes an appropriation of the
mortgaged property to satisfy the mortgage debt.” Id. (citation omitted).
                                            3
        On February 15, 2016, Sprague ordered a credit report (the “Report”). The

Report inaccurately indicated “that the mortgage on the foreclosed [h]ouse was

still open and payments had not been made in more than two years.” J.A. 53 ¶ 16.

Appellants “notified [Salisbury] of the error,” id. at ¶ 21, and on March 7, 2016,

Salisbury acknowledged that the loan had been erroneously reported as “open”

but that “[a] correction ha[d] been made to report this loan as closed,” id. at 57.

Salisbury also indicated that the “information [would] be supplied to the credit

reporting agencies.” Id. Appellants subsequently learned, however, that the bank

did not correct the erroneous information until November 30, 2016. See id. at 53

¶ 19.

        II. Procedural History

        Appellants filed their initial complaint on August 17, 2018. 2 On September

25, 2018, Salisbury moved to dismiss the complaint under Federal Rule of Civil

Procedure 12(b)(6).      Appellants successfully cross-moved to amend their

complaint and filed their Amended Complaint on October 22, 2018. As relevant

here, the Amended Complaint alleges that Salisbury violated the FCRA by

2In September 2018, Salisbury removed this action from the Connecticut Superior Court
to the United States District Court for the District of Connecticut.
                                         4
“negligently and willfully fail[ing] to perform a reasonable reinvestigation and

correction of inaccurate information,” J.A. 53 ¶ 21, and “engag[ing] in behavior

prohibited by [the] FCRA by failing to correct errors in the information that it

provided to credit reporting agencies,” id. at 54 ¶ 23, “after [Appellants] notified

[Salisbury] of the error,” id. at 53 ¶ 21.     The Amended Complaint does not

reference a specific provision of the FCRA.3

      On November 19, 2018, Salisbury moved to dismiss the Amended

Complaint, arguing, inter alia, that its “duty of investigation is only triggered after

a furnisher of information receives notice of a dispute from a consumer reporting

agency” and that Appellants “fail[ed] to allege that [Salisbury] ever received notice

of a dispute from a consumer reporting agency.” Id. at 58–59.

      On March 11, 2019, following three extensions of time to respond to

Salisbury’s motion to dismiss, Appellants cross-moved to amend their complaint

for a second time. The district court denied Appellants’ motion but allowed

Appellants to refile within seven days with a proposed second amended

complaint. Appellants complied on April 1, 2019. Ultimately, the district court

3The Amended Complaint also contained three additional claims under state law.
Appellants do not contend that the district court erred in dismissing these claims.
                                          5
rejected the proposed complaint because “[it] provide[d] no substantive additions,

adding only background information about the Fair Credit Reporting Act,

dormant facts which could have been included with either of [Appellants’] first

two complaints, and irrelevant information.” Id. at 7. On July 18, 2019—eight

months after Salisbury moved to dismiss—Appellants filed their opposition to

Salisbury’s motion to dismiss.

      The district court dismissed the Amended Complaint.                 Because the

Amended Complaint failed to allege a statutory basis for Appellants’ FCRA claim,

the district court considered two potential available bases for relief. To the extent

Appellants sought relief for a violation of 15 U.S.C. § 1681s–2(a), the district court

concluded that they failed to state a claim because there is no private right of action

under that subsection of the FCRA. See id. at 209–10 (citing Longman v. Wachovia

Bank, N.A., 702 F.3d 148, 151 (2d Cir. 2012) (per curiam)). If Appellants’ claim was

premised on a violation of Section 1681s–2(b), the district court likewise concluded

that they again failed to state a claim because they (1) did not plead that they

notified a CRA of the disputed accuracy of Salisbury’s reports, and (2) did not

allege that a CRA notified Salisbury of the dispute. See id. at 211–16.

                                          6
       Leave to amend was not warranted in the court’s view because Appellants

“failed to cure deficiencies by amendments previously allowed.”                 Id. at 223

(internal quotation marks and citation omitted). Further, Appellants presented no

basis for the district court to believe they could allege facts withstanding a 12(b)(6)

motion, and therefore, “further leave to amend would be futile.” Id. (citation

omitted).

       The district court entered judgment; Appellants timely appealed.

                                     DISCUSSION 4

       I. The Amended Complaint Fails to State a Claim Under 15 U.S.C.
          § 1681s–2(b)

       “The [FCRA] regulates credit reporting procedures to ensure the

confidentiality, accuracy, relevancy, and proper utilization of consumers’

information.” Longman, 702 F.3d at 150 (citing 15 U.S.C. § 1681(b)). Accordingly,

to ensure credit reports are accurate, the FCRA imposes certain duties on CRAs,

4The standard of review is not in doubt. We review a district court’s dismissal of a
complaint pursuant to Rule 12(b)(6) de novo, “construing the complaint liberally,
accepting all factual allegations in the complaint as true, and drawing all reasonable
inferences in the plaintiff’s favor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d
Cir. 2002). We review the district court’s denial of leave to amend for abuse of discretion,
Longman, 702 F.3d at 150, but we review de novo its legal determination that amendment
would be futile, Hutchison v. Deutsche Bank Sec., Inc., 647 F.3d 479, 490 (2d Cir. 2011).
                                             7
users of consumer reports, and furnishers of information to CRAs, such as

Salisbury.

        Section 1681s–2 sets forth an information furnisher’s responsibilities under

the FCRA, delineating two separate categories of duties. See 15 U.S.C. § 1681s–2.

Section 1681s–2(a) details a furnisher’s responsibility to provide accurate

information, including a duty to refrain from knowingly reporting inaccurate

information, see 15 U.S.C. § 1681s–2(a)(1), and to correct information discovered to

be inaccurate, see id. § 1681s–2(a)(2). As the district court correctly concluded, the

FCRA does not provide a private cause of action for violations of Section 1681s–

2(a). See 15 U.S.C. § 1682s–2(d); Longman, 702 F.3d at 151 (“[T]he statute plainly

restricts enforcement of [15 U.S.C. § 1681s–2(a)] to federal and state authorities.”). 5

        Section 1681s–2(b) outlines a furnisher’s duties following a dispute

regarding the completeness or accuracy of a consumer’s credit report. Under

Section 1681s–2(b), once a furnisher “receiv[es] notice” of a dispute, the furnisher

must:

              (A) conduct an investigation with respect to the disputed
                  information;

5Appellants agree and do not appeal the dismissal of their complaint based on a Section
1681s–2(a) theory of liability.
                                           8
             (B) review all relevant information provided by the consumer
                 reporting agency pursuant to section 1681i(a)(2) . . .;
             (C) report the results of the investigation to the consumer
                 reporting agency;
             (D) if the investigation finds that the information is incomplete
                 or inaccurate, report those results to all other consumer
                 reporting agencies to which the person furnished the
                 information . . .; and
             (E) if an item of information disputed by a consumer is found
                 to be inaccurate or incomplete or cannot be verified after
                 any reinvestigation under paragraph (1) . . ., (i) modify that
                 item of information; (ii) delete that item of information; or
                 (iii) permanently block the reporting of that item of
                 information.

15 U.S.C. § 1681s–2(b)(1). The statute is clear that the notice triggering these duties

must come from a CRA, not the consumer. See 15 U.S.C. § 1681i(a)(2) (providing

that once a “consumer reporting agency receives notice of a dispute from any

consumer . . . the agency shall provide notification of the dispute to any person

who provided any item of information in dispute”); id. § 1681s–2(b); see also

SimmsParris v. Countrywide Fin. Corp., 652 F.3d 355, 358 (3d Cir. 2011) (“Notice

under § 1681i(a)(2) must be given by a credit reporting agency, and cannot come

directly from the consumer.”); Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 1147,

1154 (9th Cir. 2009) (“[Section 1681s–2(b)] obligations are triggered upon notice of

dispute—that is, when a person who furnished information to a CRA receives

                                          9
notice from the CRA that the consumer disputes the information.” (internal

quotation marks omitted)). Accordingly, Section 1681s–2(b) is not implicated

simply because a consumer contacts a furnisher such as Salisbury regarding

inaccuracies in her credit report.

      Appellants do not allege that a CRA notified Salisbury of their dispute

concerning the information in the Report. Appellants do not even allege that they

notified a CRA of the discrepancy. The Amended Complaint alleges only that,

after receiving the Report, Sprague directly notified Salisbury of the Report’s

inaccuracy. See J.A. 53. This alone is insufficient to state a claim under Section

1681s–2(b). See Chiang v. Verizon New England Inc., 595 F.3d 26, 35 & n.8 (1st Cir.

2010); Gorman, 584 F.3d at 1154; Elmore v. North Fork Bancorporation, Inc., 325 F.

Supp. 2d 336, 340 (S.D.N.Y. 2004).

      Appellants contend that Salisbury based its motion to dismiss solely on the

failure of a CRA to notify the bank of an inaccuracy in Sprague’s credit report.

They seem to imply that by limiting its objection to the failure to allege notice from

a CRA to Salisbury, the bank could not be heard to complain about the absence of

a factual allegation regarding notice by Sprague to the consumer reporting agency.

See Appellants’ Br. 19–20. We disagree. The complaint gave no guidance as to

                                         10
what section of the FCRA Appellants sought to employ in the litigation. Salisbury

argued that Appellants “only allege that they disputed the debt with [Salisbury,]” and

therefore, the Amended Complaint “is devoid of any allegations that a [CRA]

informed [Salisbury] of their alleged dispute,” which is a “prerequisite for liability

under § 1681s–2(b)(1).” J.A. 70–71 (emphasis added). This put the sufficiency of

Appellants’ Section 1681s–2(b) claim before the district court. The district court

agreed that Section 1681s–2(b) was the only available statutory basis for liability

under the FCRA and measured the complaint by the standard therein. See id. at

211–17.

      Under the statute, a CRA need only notify a furnisher about any disputes

concerning the accuracy of credit information after the CRA receives such notice

from the consumer—either directly or indirectly through a reseller. 6 See 15 U.S.C.

6Though not at issue here, the term “reseller” is defined as a consumer reporting agency
that:
      (1) assembles and merges information contained in the database of another
      consumer reporting agency or multiple consumer reporting agencies
      concerning any consumer for purposes of furnishing such information to
      any third party, to the extent of such activities; and
      (2) does not maintain a database of the assembled or merged information
      from which new consumer reports are produced.
15 U.S.C. § 1681a(u).
                                          11
§ 1681i(a)(2) (requiring consumer reporting agencies to report a dispute to the

furnisher within five business days “beginning on the date on which a consumer

reporting agency receives notice of a dispute from any consumer or a reseller” (emphasis

added)).   Indeed, the CRA is required to include “all relevant information

regarding the dispute that the [CRA] has received from the consumer” in its notice

to the furnisher. Id. § 1681i(a)(2)(A). And, in turn, a furnisher is only required to

investigate a dispute upon receiving the CRA’s notice. Thus, the chain of events

leading up to the furnisher’s duty to investigate under Section 1681s–2(b) begins

with the consumer’s notice to a CRA. The district court did not err when it

considered whether Appellants alleged that they notified a CRA of their dispute—

even if Salisbury did not specifically articulate this point.

      In alleging that Salisbury violated the FCRA by continuing to furnish

inaccurate information after receiving notice of an error directly from the

consumer, Appellants effectively seek to employ the private right of action

permitted under Section 1681s–2(b) as a means of enforcing Salisbury’s general

obligation under Section 1681s–2(a) not to knowingly furnish inaccurate

information.    Section 1681s–2(b) imposes on Salisbury a more specific duty,

triggered only by a proper chain of notice. Here, Appellants have alleged no facts

                                          12
indicating that Salisbury received notice from a CRA regarding the inaccuracies in

the Report.    The Amended Complaint alleges only that Appellants notified

Salisbury about the erroneous information. This alone does not state a valid claim

under Section 1681s–2(b). 7

      II. The District Court Did Not Err in Denying Leave to Amend

      Appellants also contend that the district court erred in dismissing the

complaint with prejudice. See Appellants’ Br. 27. We disagree. The district court

found that, notwithstanding the several extensions of time to respond to

Salisbury’s motion to dismiss and a previous chance to amend, Appellants failed

to cure the alleged deficiency. See J.A. 223. Additionally, the district court noted

that discovery would not aid Appellants in alleging that they notified a CRA of

their dispute. See id. at 216 & n.2. Indeed, Sprague certainly knew whether he

lodged a complaint with a CRA. Appellants therefore presented no basis for the

7 Because the Amended Complaint failed to allege not only that a CRA notified Salisbury
about the contested information in the Report, but also that Appellants notified a CRA of
their dispute, we need not address the narrower question of whether an allegation that a
plaintiff notified a CRA of disputed credit information is, standing alone, sufficient to
survive a 12(b)(6) motion with respect to holding a furnisher of information like Salisbury
liable under Section 1681s–2(b).
                                            13
court to “believe [they] could allege facts that could withstand a 12(b)(6) motion.”

Id. at 223 (alteration in original).

       The district court did not err in dismissing with prejudice here. Although

Appellants suggested that their “pleading [could] be amended with ease,” id. at

174, nothing in Appellants’ proposed second amended complaint corrected the

deficiency. 8 This is true despite the fact that Salisbury, in its motion to dismiss the

8 Moreover, outside of a general assertion that Appellants could “allege that they notified
a [CRA] and that a [CRA] notified [Salisbury] of the error in question,” Appellants’ Br.
17–18, Appellants provide no information or argument on whether such notice was in
fact provided. Were this the case, it is somewhat suspect that Appellants did not simply
add this allegation in their proposed amended complaint. Indeed, some of the cases cited
by Appellants in their opposition to Salisbury’s motion to dismiss were cases in which
the plaintiffs did allege that they notified either a CRA of their dispute or that a CRA had
notified the furnisher. See, e.g., J.A. 171–72 (citing Pleznac v. Equity Residential Mgmt.,
L.L.C., 320 F. Supp. 3d 99, 106 (D.D.C. 2018), DiMezza v. First USA Bank, Inc., 103 F. Supp.
2d 1296, 1301 (D.N.M. 2000)); see also Pleznac, 320 F. Supp. 3d at 106 (“To prevail on a
claim against a furnisher under § 1681s–2(b), a plaintiff must show both that (1) she
notified the reporting agency . . . of the disputed credit information and that (2) the
agency in turn provided notice . . . of the dispute to the furnisher . . . . Equity agrees that
Pleznac adequately pled the first of these requirements. She claims to have contacted Transunion
[i.e., the CRA] in March 2017 to dispute the accuracy of her credit information.” (emphasis
added)); DiMezza, 103 F. Supp. 2d at 1301 (“The amended complaint sufficiently alleges
that [the furnisher] actually did, or should have, received notice from a consumer
reporting agency and cures any defect that may have been in the original complaint.”).
Moreover, district courts in this circuit have required a plaintiff to allege the furnisher
received notice from a CRA to survive a motion to dismiss. See, e.g., Burns v. Bank of
America, No. 03 Civ. 1685, 2003 WL 22990065 at *2 (S.D.N.Y. Dec. 18, 2003), vacated on other
grounds, 115 F. App’x 105 (2d Cir. 2004) (summary order) (granting defendants’ motion
to dismiss a complaint alleging claims under the FCRA because “Plaintiffs d[id] not allege

                                              14
Amended Complaint (to which Appellants’ proposed second amended complaint

responded), argued that Appellants failed to plead the proper chain of notice

triggering any duty by Salisbury under 1681s–2(b)(1). See id. at 70–71. “[R]epeated

failure to cure deficiencies by amendments previously allowed” is a valid reason

to deny leave to amend. Forman v. Davis, 371 U.S. 178, 182 (1962). Accordingly,

we affirm the district court’s decision to dismiss the Amended Complaint with

prejudice.

                                    CONCLUSION

       For the reasons stated above, we AFFIRM the judgment of the district court.

that Defendants ever received notice from a consumer reporting agency that imposed a
duty to investigate”); Korzeniowski v. NCO Fin. Sys., No. 3:09-cv-1399 (WWE), 2010 WL
466162, at *4, 2010 (D. Conn. Feb. 8, 2010) (“[15 U.S.C. § 1681s-2(b)] takes effect once the
consumer reporting agency receives notice as required by 15 U.S.C. § 1681i(a)(2) of a
dispute with regard to the completeness or accuracy of any information provided. The
notice requirement is to be strictly construed; failure to abide by it means that there
cannot be a claim for relief.”).
                                            15


246 Pa. Superior Ct. 512 (1977)
371 A.2d 953
Frances M. DOWNING, Appellant.
v.
Lamar H. SHAFFER, Jr.
Superior Court of Pennsylvania.
Argued December 7, 1976.
Decided March 31, 1977.
*514 Gailey C. Keller, Bloomsburg, for appellant.
David C. Dickson, Jr., Berwick, for appellee.
Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
HOFFMAN, Judge:
Appellant contends that the lower court erred when it instructed the jury that she could be contributorily negligent *515 for choosing one of two possible routes from home to work. We agree and, therefore, vacate the judgment and grant a new trial.
The events leading to the instant suit occurred on February 22, 1973, at approximately 8:00 a.m., in Bloomsburg, Columbia County. At trial[1] on June 3, 1974, appellant-plaintiff testified that she was driving her 1972 Chrysler sedan out her driveway onto North Iron Street. She looked both ways for approaching cars, saw no traffic in either direction, and crossed one lane of traffic and turned left. After traveling north on Iron Street approximately 55 feet, her car was struck in the rear by appellee's automobile. She did not see appellee-defendant before the accident, but did hear brakes screeching. She lost consciousness briefly after her car was struck; the next thing she recalled was hearing appellee say: "My God, I didn't mean to hurt anybody. I was going thirty miles an hour, and you pulled out in front of me." Appellant instructed appellee to turn off her ignition, so she could remove her foot from the brake pedal. Appellant testified that she suffered severe injuries to her neck and back as a result of the collision, as well as $791.09 in damages to her automobile.
On cross-examination, appellant admitted that her vision to the right as she exits her driveway is obstructed because the hill crests about 200 feet away, and that motorists approaching from that direction cannot see her car as it exists the driveway until they reach the crest of the hill. She denied that she stopped before entering appellee's traffic lane on Iron Street because of a car approaching from the left and denied that a car was forced to swerve into appellee's lane of traffic to avoid hitting her. Appellant admitted that she could turn right, rather than left, and thereby use an alternate route to her place of employment. However, she used the alternate *516 route only in icy weather to avoid driving up a hill close to her place of work because the alternate route required a few extra minutes of driving.
Appellant called Bloomsburg Police Sergeant Albert Battisti, who arrived at the scene of the accident shortly after the collision. He testified to the following facts: the weather was clear and dry, the posted speed on Iron Street was 35 miles per hour, Iron Street had been cindered recently, which could cause severe skidding. He stated that the point of impact was 55 feet north of appellant's driveway in appellee's lane of travel and that appellant's car came to rest 35 feet north of the point of impact. Appellee's car started skidding sideways for approximately 40 feet before its right front corner struck the rear of appellant's car. Sergeant Battisti also testified that appellee could not possibly see appellant's car until it was 200-250 feet from the driveway because his vision would be obstructed by the hill to appellant's right. He also testified that Iron Street makes a sharp right curve at approximately the point at which appellant's vehicle came to rest which was about 90 feet north of her driveway.
Appellee testified that he was driving north on Iron Street at about 30 to 35 miles per hour. As he reached the crest of the hill approximately 200 feet from appellant's driveway, he saw a 1964 Chevrolet sedan swerve to avoid hitting appellant's car which was stopped in the southbound lane. He continued driving because he believed that appellant must have seen him approaching, but was surprised when appellant suddenly pulled into his lane about 100 feet in front of his car. He applied his brakes and started skidding. The right front corner of his vehicle struck the rear of appellant's car.
During its charge to the jury, the lower court agreed to give the following instruction tendered by the appellee over plaintiff's timely objection:
"Now, the defendant has also offered another defense which he has asked you to consider in determining *517 whether or not the plaintiff was guilty of contributory negligence which we indicated, that if you find the plaintiff guilty of contributory negligence, her claim would be barred. This doctrine that the defendant has asked you to take into consideration is one that is entitled `choice of ways.' The defendant is claiming that the plaintiff is guilty of contributory negligence not only in the manner in which she conducted herself at the time of the accident, but in the selection of the route which she followed and which brought her to the scene of the accident. It is the contention of the defendant that the plaintiff selected a dangerous route in place of another safer means of travel. This makes it necessary that you be instructed concerning a requirement of the law of contributory negligence which we have already indicated to you. The law is where a person having a choice of two distinct ways, one of which is perfectly safe and the other of which is subject to risks and dangers, that person voluntarily chooses the dangerous one as against the one which is perfectly safe and is injured, that person so choosing may be guilty of contributory negligence and cannot recover.
"This rule does not apply unless there are two separate and distinct ways, one clearly recognizable as safe, and the other clearly involving hazards. This doesn't apply unless the injured party had complete freedom to make a choice between the two. This rule does not apply if the plaintiff was not aware of the dangerous condition of the route which she took, if there were no circumstances which put her on notice that the path in which she was about to take involved danger. We would point this rule out to you and it is going to be up to you to recall the testimony as to why the plaintiff chose the route in which she took, and how long she has been taking that route, and the feasibility of the other alternative route that was available, if you find there to be one, and also, the reasons that were offered by the plaintiff for having taken that route that she in fact did choose."
*518 At the conclusion of the court's charge, the jury retired and returned a verdict for appellee-defendant because it found both parties negligent.[2] Appellant now contends that it was error for the court to instruct the jury that she could be negligent for choosing to turn left instead of right.
The so-called "choice of ways" rule is simply stated: "Where a person, having a choice of two ways, one of which is perfectly safe, and the other of which is subject to risks and dangers, voluntarily chooses the latter and is injured, he is guilty of contributory negligence and cannot recover: Haven v. Pittsburgh & Allegheny Bridge Co., 151 Pa. 620, 25 A. 311; Levitt v. B/G Sandwich Shops, Inc., 294 Pa. 291, 144 A. 71; Kaczynski v. Pittsburgh, 309 Pa. 211, 163 A. 513; Tharp v. Pennsylvania Railroad Co., 332 Pa. 233, 2 A.2d 695.": DeFonde v. Keystone Valley Coal Co., 386 Pa. 433, 434, 126 A.2d 439 (1956). "It is apparent that the `choice of paths' rule applies only if two distinct ways exist, one which is clearly safe and the other as involving danger . .." Eller v. Work, 233 Pa.Super. 186, 336 A.2d 645 (1975). For example, in Tharp v. Pennsylvania Railroad Co., supra, the plaintiff was held contributorily negligent because he attempted to cross railroad tracks when he could have used the bridge spanning the tracks and, thereby, could have avoided being struck by a train.
The rule requiring a person to select a safe route in favor of a dangerous one is nothing more than a formulation of the general rule that a person is contributorily negligent if his conduct falls short of the standard to which a reasonable person should conform in order to protect himself from harm. See Dezelan v. Duquesne Light Co., 334 Pa. 246, 5 A.2d 552 (1939); Restatement (Second) of Torts, § 466(b). However, the rule is not *519 meant to impose unreasonable restrictions on travel: "There is no law which requires anybody to follow any particular course in reaching his destination. People have freedom of movement in this country and they may even follow whim or caprice in attaining their objectives. Even if the alternative course could be determined hypothetically safer but the one chosen is still free from hazard and authorized by law, a tortfeasor may not escape responsibility for his negligence by maintaining that the person injured through his (the tortfeasor's) negligence could have escaped injury by taking the alternative route." Hopton v. Donora Borough, 415 Pa. 173, 202 A. 2d 814 (1964). Thus, to warrant an instruction on "choice of ways", there must be evidence that the plaintiff made an unreasonable decision which exposed him to a hazard that he knew or should have known existed. There must be evidence of (1) a safe course, (2) a dangerous course, and (3) facts which would put a reasonable person on notice of the danger or actual knowledge of the danger. See Restatement (Second) of Torts, § 466, Comments f. and g.
A party is entitled to have the issue of contributory negligence determined by proper standards as laid out in the trial judge's charge to the jury. Evans v. Philadelphia Transportation Co., 418 Pa. 567, 212 A.2d 440 (1965); Kimmel v. Yellow Cab Co., 414 Pa. 559, 201 A.2d 417 (1964); Hronis v. Wissinger, 412 Pa. 434, 194 A.2d 885 (1963); Eller v. Work, supra; Millen v. Miller, 224 Pa.Super. 569, 308 A.2d 115 (1973). A charge which is unsupported by the evidence may lead to jury confusion and an unjust result: "`It is manifestly improper for a court, as here, to submit to a jury, for their determination, a point which the evidence does not warrant.' Quoting ancient, but well-settled language from another case, the Court went on to say: `"To submit a fact, destitute of evidence, as one that may, nevertheless, be found, is an encouragement to err which cannot be too *520 closely observed or unsparingly corrected."' Marlowe [v. Travelers' Ins. Co., 313 Pa. 430, 169 A. 100 (1933)], supra at 433, 169 A. at 101. (Citation omitted)." Millen v. Miller, supra at 576, 308 A.2d at 119. Thus, if we find that the charge of the court is not supported by evidence in the record, we must reverse and grant a new trial.
In the instant case, there was testimony that a sharp curve located approximately 100 feet from her driveway blocked appellant's view to the left and that a hill crest blocked her view beyond 200 or 250 feet to the right. Testimony established that drivers approaching both from the right and the left could not see a car exiting appellant's driveway until they passed these obstacles. Thus, if appellant turned right, she risked being struck by a car the driver of which had only 100 feet of unobstructed vision. If she turned left, she risked being struck by a car, the driver of which had 200-250 feet of unobstructed vision. Appellant's choice of routes would appear to be equally dangerous; arguably, the route she selected was the safer in view of the longer stopping distance afforded approaching traffic. In any event, no evidence was presented which would allow the jury to conclude that there was a safe route which the appellant failed to take. In the absence of such evidence, it was reversible error for the court to instruct the jury on the "choice of ways" rule. The testimony regarding the events leading to the collision was contradictory, and it is impossible to determine what theory lead the jurors to the conclusion that appellant was negligent. We, therefore, vacate the judgment for appellee and grant a new trial.
Judgment vacated and case remanded.
NOTES
[1]  Before the appellant opened her case, the jury went to the scene of the accident for a view.
[2]  The jury made a specific finding of contributory negligence, which was entered on the verdict slip.


635 So.2d 73 (1994)
Diane E. STEWART, Appellant,
v.
DOLLAR TREE and Florida Unemployment Appeals Commission, Appellees.
No. 93-270.
District Court of Appeal of Florida, First District.
January 18, 1994.
Diane E. Stewart, pro se.
Geri Atkinson-Hazelton, Gen. Counsel, John D. Maher, Asst. Gen. Counsel, Tallahassee, for appellee.
WEBSTER, Judge.
Appellant seeks review of an order of the Florida Unemployment Appeals Commission affirming the termination of her unemployment compensation benefits on the ground that she had "voluntarily left h[er] work without good cause attributable to h[er] employing unit." § 443.101(1)(a), Fla. Stat. (Supp. 1992). Because we conclude that the applicable law was misapplied, we reverse.
Appellant was terminated from her full-time employment because of lack of work. Her claim for unemployment compensation benefits was initially granted. About the time that she applied for benefits, appellant accepted a part-time job. Appellant worked at the part-time job an average of seven or eight hours per week for four weeks, receiving $204.94 in gross earnings. She then quit that part-time job to accept a second part-time job which offered a higher rate of pay, more hours each week and the prospect of eventual full-time employment at a rate of pay reasonably close to that of the full-time job from which she had been terminated. (Appellant could not continue to work at the first part-time job because the hours conflicted with those of the second.)
The decision of the appeals referee, which was affirmed by the Commission, was based upon application of section 443.101(1)(a), Florida Statutes (Supp. 1992). The appeals referee concluded that, because appellant had not left her first part-time job for "good cause attributable to h[er] employing unit," she was disqualified from receiving unemployment compensation benefits. We conclude that, on the facts of this case, section 443.101(1)(a) has no application.
It seems relatively clear to us that, given the facts of this case, the "work" referred to in section 443.101(1)(a) would be the full-time job from which appellant was terminated because of lack of work, not the part-time job which she later accepted in an effort to mitigate *74 her misfortune. We find applicable to the facts of this case the reasoning employed in Neese v. Sizzler Family Steak House, 404 So.2d 371 (Fla. 2d DCA 1981).
In Neese, the appellant had been terminated from her full-time job under circumstances entitling her to unemployment compensation benefits. Prior to her termination, the appellant had also worked part-time at a second job. Unable to find full-time employment or to support herself on the income from her part-time job, the appellant quit her part-time job and moved to another city in search of full-time employment. As in this case, the Commission affirmed the termination of the appellant's benefits based upon the conclusion that, in violation of the version of section 443.101(1)(a) then in effect, the appellant "`ha[d] voluntarily left h[er] employment without good cause attributable to h[er] employer.'" Id. The Second District Court of Appeal reversed, noting that, for a number of reasons, such an interpretation of the statute was contrary to the clear intent of the legislature. Among other things, the court noted that, given the legislative intent "to lighten the economic burden on the unemployed worker and his family," the statute should be interpreted in such a way as to encourage those entitled to benefits to seek and accept part-time employment, rather than to discourage them from doing so. Id. at 372. Accord Wright v. Florida Unemployment Appeals Commission, 512 So.2d 333 (Fla. 3d DCA 1987).
The facts of this case graphically illustrate the absurdity of the Commission's position. Appellant, clearly entitled to benefits because of the termination of her full-time employment, accepted a part-time job to try to make ends meet. Assuming that the earnings from that part-time employment met the threshold, their receipt would reduce the amount of benefits to which appellant would otherwise be entitled. § 443.111(3), Fla. Stat. (Supp. 1992). In an effort to improve her economic situation, appellant left the first part-time job for another which paid a greater hourly wage, permitted her to work more hours each week and offered the prospect of eventual full-time employment at a rate of pay reasonably close to that of the full-time job from which she had been terminated. In response, rather than commending her efforts to improve her economic position and, thereby, to reduce the amount of benefits to which she would be entitled, the Commission concluded that appellant had disqualified herself from receiving any further benefits. Clearly, the legislature did not intend such a result.
We reverse the Commission's decision, and remand with directions that appellant's unemployment compensation benefits be reinstated, retroactive to the date of their improper termination.
REVERSED and REMANDED, with directions.
JOANOS and KAHN, JJ., concur.


               United States Court of Appeals
                         For the Eighth Circuit
                     ___________________________

                             No. 14-2212
                     ___________________________

                          United States of America

                     lllllllllllllllllllll Plaintiff - Appellee

                                        v.

                              Michael Jon Bush

                   lllllllllllllllllllll Defendant - Appellant
                                   ____________

                  Appeal from United States District Court
                for the Northern District of Iowa - Ft. Dodge
                               ____________

                       Submitted: November 10, 2014
                         Filed: November 19, 2014
                               [Unpublished]
                               ____________

Before RILEY, Chief Judge, BEAM and GRUENDER, Circuit Judges.
                              ____________

PER CURIAM.
       Michael Bush appeals his sentence of 322 months on the grounds that the
district court1 committed procedural error by sentencing him as a career offender. We
affirm.

       Bush pleaded guilty to one count of conspiracy to distribute 50 grams or more
of a mixture or substance containing a detectable amount of methamphetamine, or five
grams or more of pure methamphetamine, after having been convicted of a felony
drug offense, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 846, and 851. He
also pleaded guilty to one count of possession of a firearm in furtherance of a drug
crime, in violation of 18 U.S.C. § 924(c)(1)(A). At sentencing, the district court
sentenced Bush as a career offender under section 4B1.1 of the United States
Sentencing Guidelines (U.S.S.G) because the conspiracy conviction constituted a
controlled substance offense and because he had three prior felony convictions of
either a crime of violence or a controlled substance offense. Specifically, the district
court concluded that Bush had prior convictions for attempted burglary in the second
degree, eluding a pursuing law enforcement vehicle, and possession with intent to
distribute a controlled substance.

        Bush concedes that his conviction for possession with intent to distribute
constitutes a controlled substance offense for purposes of § 4B1.1. He argues,
however, that the district court erred in holding that he was a career offender because
his convictions for eluding and attempted burglary do not constitute crimes of
violence, and he therefore does not have the two predicate felony convictions required
by the career offender calculation. "[W]e review the district court's application of the
Guidelines de novo." United States v. Poe, 764 F.3d 914, 917 (8th Cir. 2014).

      1
       The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.

                                          -2-
      Under § 4B1.1(a), a defendant who was at least eighteen years old at the time
the defendant committed the instant offense of conviction will be deemed a career
offender if "the instant offense of conviction is a felony that is either a crime of
violence or a controlled substance offense" and if the defendant has at least two
predicate felony convictions that constitute either a crime of violence or a controlled
substance offense. U.S.S.G. § 4B1.1.

       Bush's argument with respect to his eluding conviction is directly contradicted
by our holding in United States v. Clay, 622 F.3d 892 (8th Cir. 2010). In Clay, we
explicitly held that the offense of eluding under Iowa Code § 321.279(2) is a crime of
violence. Id. at 895. Bush recognizes that Clay is directly on point, but he contends
that the case was wrongly decided and requests that we overrule it. "One Eighth
Circuit panel, however, cannot overrule another's opinion. . . . In short, even if we
were inclined to question our governing caselaw–which we are not–we are bound by
our precedents . . . and only the court en banc could overturn them." United States v.
Billue, 576 F.3d 898, 904 (8th Cir. 2009) (second alteration in original). We therefore
hold that Bush's eluding conviction constitutes a crime of violence. Clay, 622 F.3d
at 895.

       Because Bush's eluding conviction constituted his second predicate felony
conviction for purposes of § 4B1.1, the district court did not err in holding that he was
a career offender. Id. We therefore need not address whether Bush's conviction for
attempted burglary also constitutes a crime of violence. The judgment of the district
court is affirmed.
                       ______________________________

                                          -3-


964 S.W.2d 858 (1998)
Robert K. BALL, II, and David R. Odegard, Plaintiffs-Appellants,
v.
Hugh J. SHANNON, Defendant-Respondent.
No. 21815.
Missouri Court of Appeals, Southern District, Division One.
March 5, 1998.
Motion for Rehearing and Transfer to Denied March 25, 1998.
Robert K. Ball, II, David R. Odegard, Kansas City, pro se.
Richard L. Anderson, Kimberling City, for Defendant-Respondent.
Motion for Rehearing and Transfer to Supreme Court Denied March 25, 1998.
PREWITT, Judge.
Plaintiffs filed "Petition on Promissory Note." Defendant responded with a motion:
[A]sking the Court to dismiss this action for failure to state a claim upon which legal or equitable relief can be granted, for improper service of process, for improper venue, and for lack of jurisdiction of this Court over the subject matter, or, in the *859 alternative, and only if this motion to dismiss is overruled, moves to grant this Defendant a summary judgment....
Following a hearing on the motion, the legal file, the only record before us, reflects that the parties' attorneys were sent a letter from the secretary of Presiding Judge Eiffert stating the following:
The following docket entry was made
    June 6, 1997, in the above cause:
Motion to dismiss sustained;
cause dismissed.
/s/ Judge Eiffert
No copies of the docket sheet or sheets are in the legal file, nor is there any other purported order or judgment shown. Attached to the notice of appeal, apparently to reflect the judgment or order appealed from, is a copy of this letter.
Obviously, this letter does not comply with Rule 74.01(a). That rule requires that for there to be a judgment, it must be (1) in writing; (2) signed by a judge; (3) denominated "judgment"; and, (4) filed. Brooks v. Director of Revenue, 954 S.W.2d 715, 716 (Mo.App.1997). See also City of St. Louis v. Hughes, 950 S.W.2d 850 (Mo.banc 1997).
Even if there is a docket entry in accordance with the letter, that would still be insufficient upon which to base an appeal. An order dismissing a petition for failure to state a claim must meet the judgment requirements of Rule 74.01(a). See Chambers v. Easter Fence Co., Inc., 943 S.W.2d 863 (Mo.App.1997). If such a docket entry was made it might be sufficient as to requirements 1, 2, and 4. However, if it is not denominated a "judgment," and nothing indicates that it was, there is no judgment from which an appeal lies in this situation. Chambers, 943 S.W.2d at 865-66. Absent a judgment this Court does not have jurisdiction and must dismiss the appeal. Brooks, supra.
The appeal is dismissed.
GARRISON, P.J., and CROW, J., concur.


714 F.Supp.2d 211 (2010)
GENERAL DYNAMICS INFORMATION TECHNOLOGY, INC., Plaintiff,
v.
WIRELESS PROPERTIES, LLC, Defendant.
Civil Action No. 09-12090-JLT.
United States District Court, D. Massachusetts.
May 25, 2010.
*212 Thomas I. Elkind, Erica T. Spencer, Foley & Lardner, LLP, Boston, MA, for Defendant.
John F. Rooney, Melick, Porter & Shea, LLP, Boston, MA, for Plaintiff.

MEMORANDUM
TAURO, District Judge.

I. Introduction

This action arises out of an agreement between Plaintiff General Dynamics Information Technology, Inc., and Defendant Wireless Properties, LLC, by which Plaintiff was to provide Defendant with telecommunication infrastructure support services. Through its Complaint, Plaintiff now seeks to recover overdue payment for *213 services already rendered to Defendant. Presently at issue is Defendant's Motion to Stay Proceedings and Compel Arbitration [# 10]. For the reasons set forth below, Defendant's Motion to Stay Proceedings and Compel Arbitration [# 10] is ALLOWED.

II. Background[1]
On October 26, 2007, Plaintiff and Defendant entered into a Master Services Agreement (the "MSA") by which Plaintiff agreed to provide telecommunication infrastructure support services to Defendant. Pursuant to the MSA, Defendant sent Plaintiff periodic requests for price quotations as to specific projects it wished to pursue. Plaintiff provided a statement of work in response and Defendant, in turn, issued a purchase order if it decided to proceed with the project.
Unless the parties explicitly agreed otherwise, the MSA governed the terms of each project. The MSA required Plaintiff to provide Defendant with monthly invoices, each of which Defendant had an obligation to pay within thirty days of receipt. Any undisputed items on an invoice that were not paid within thirty days accrued interest at a rate of one percent per month.
Pursuant to the Dispute Resolution clause contained in paragraph 20 of the MSA, "any dispute or controversy between the Parties arising under or in connection with the Agreement (`Dispute') shall be settled exclusively"[2] by means of binding arbitration to be held in Nashville, Tennessee. Paragraph 20 and Paragraph 7(b) of the MSA provide for a narrow exception to dispute resolution by arbitration if, and only if, the dispute at issue is confined to the recovery of payment on undisputed invoices. Under such circumstances, the MSA permits Plaintiff to pursue a remedy "through initiation of litigation in a court of competent jurisdiction in the Commonwealth of Massachusetts."[3]
The MSA also contains a Force Majeure/Excusable Delay Provision which temporarily excuses nonperformance in the case of an enumerated Force Majeure event or due to excusable delay "... caused by Customer or its employees, agents, suppliers or other third party contractors supporting Customer, provided that such circumstances were not reasonably foreseeable by such Party and, by the exercise of reasonable commercial due diligence, could not have been prevented by such Party."[4] The Provision specifies that, in the face of a Force Majeure event, the affected party must promptly provide notice to the other party, at which time it may suspend performance without penalty. But if the nonperformance "exceeds thirty days from receipt of the notice of the Force Majeure Event, either Party may terminate for convenience the affected Purchase Order."[5] The Force Majeure/Excusable Delay Provision does not, however, specify the protocol to be followed by the parties in the case of excusable delay.
Since the Parties entered the MSA, Defendant has issued purchase orders for, and Plaintiff has subsequently provided, $1,376,000.00 in services. But as of July 2008, Defendant began to fall behind in paying the invoices in a timely manner. *214 In December 2008, Plaintiff made a formal demand for immediate payment of the $912,529.21 owed to it as of that time. On April 6, 2009, Defendant sent a letter to Plaintiff acknowledging that it owed Plaintiff such amount and stating that it was in the process of selling some assets, so as to be able to remit payment. On May 28, 2009, Defendant made a payment of $100,000 and promised to pay the balance of the outstanding debt within two weeks. On July 10, 2009, Defendant made an additional payment of only $25,000.
From May 2009 until the end of October 2009, Defendant made repeated promises to pay all outstanding amounts due Plaintiff and indicated that it planned to conduct a sale of additional assets to facilitate payment. On October 29, 2009, however, Defendant informed Plaintiff that it was invoking the Force Majeure/Excusable Delay Provision contained in paragraph 10 of the MSA because a third party had failed to provide it financing which would have enabled it to submit payment on the overdue invoices. In response, Plaintiff took the position that a failure to secure financing did not amount to either a Force Majeure event or excusable delay and, in any event, the failure to provide financing had occurred over a year prior and, thus, Defendant had failed to promptly notify Plaintiff of the alleged Force Majeure event.
Defendant still has not paid the balance of its debt due Plaintiff. As of the time of the Complaint, the amount owing was $899,002.96.

III. Discussion

Plaintiff's Complaint characterizes this action as an effort to recover payment on undisputed invoices, which is not subject to arbitration as per paragraphs 20 and 7(b) of the MSA. And, notably, Defendant has indeed never disputed the amount due on the invoices. Nonetheless, Defendant seeks an order from this court compelling the Parties to arbitrate the present dispute because the dispute is not confined to the issue of the undisputed invoices. Rather, Defendant contends that the face of the Complaint demonstrates that any recovery depends upon a threshold determination of whether the Force Majeure/Excusable Delay Provision applies to the underlying facts and how such application impacts the recovery to which Plaintiff is immediately entitled on the undisputed invoices.[6] This court agrees with Defendant and must compel arbitration.
"Arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which [it] has not agreed to so submit...."[7] But neither may a Party avoid arbitration if it has agreed to such. Accordingly, the Federal Arbitration Act (FAA) requires courts *215 to stay judicial proceedings and compel arbitration where the parties have previously agreed to arbitration as the sole means of resolving a dispute.[8] "[W]hether or not [a party is] bound to arbitrate, as well as what issues it must arbitrate, is a matter to be determined by the Court on the basis of the contract entered into by the parties."[9]
As a general matter, where a contract contains an arbitration clause, there is a strong presumption in favor of the arbitrability of the dispute.[10] This presumption gives way only when "it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute."[11] While a court may not "read out of an arbitration clause an explicit limit upon the scope of that clause" [12] to which the parties have agreed, "any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself, or an allegation of waiver, delay, or a like defense to arbitrability."[13]
"A party who attempts to compel arbitration must show that a valid agreement to arbitrate exists, that the movant 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."[14] Because the Parties here disagree only as to whether the current dispute falls within the scope of the MSA's arbitration clause, that is the sole question analyzed below.
The Parties agreed to arbitrate any claims "arising under or in connection with" the MSA, except for those claims raising only the issue of recovery on undisputed invoices.[15] In the Complaint, Plaintiff seeks to recover amounts due on overdue invoices. Defendant does not now, nor has it ever, disputed the amount owed Plaintiff on those invoices. Thus, at first blush, this dispute would indeed appear to fall under the narrow exception to mandatory arbitration for recovery on undisputed invoices.
But, as set forth in the Complaint, Plaintiff and Defendant also disagree as to whether the nonpayment is excused, at least temporarily, by the Force Majeure/Excusable Delay Provision of the MSA. In order to proceed to a determination of what recovery is due Plaintiff, therefore, the decision-maker must necessarily interpret and apply the Force Majeure/Excusable Delay Provision to the underlying facts as a threshold matter.
This court is sympathetic to Plaintiff's argument that failure to secure third-party financing is not the type of unforeseeable event that should trigger excusable delay protections. And this court agrees with Plaintiff that Defendant's eleventh-hour invocation of the Force Majeure/Excusable Delay Provision gives off an air of insincerity. But, nonetheless, this court is bound *216 to resolve the present motion to compel in accordance with the allegations set forth in Plaintiff's Complaint. And those allegations indicate a dispute between the Parties over the construction and effect of the Force Majeure/Excusable Delay Provision, to which both Parties agreed to be bound when they entered the MSA.
The Force Majeure/Excusable Delay Provision specifically states that "The Party who has been affected by a Force Majeure Event shall promptly give notice to the other Party ... at which time performance of this Agreement to the extent affected by the Force Majeure Event shall immediately be suspended without penalty to such affected Party.... If the period of nonperformance exceeds thirty (30) days from receipt of notice of the Force Majeure Event, either Party may terminate for convenience the affected Purchase Order."[16]
Thus, the language of the Provision makes clear that, in the case of a Force Majeure event, the affected party must provide prompt notice in order to suspend performance and that such nonperformance is typically limited to thirty days. Plaintiff contends that this thirty-day limitation renders the Force Majeure/Excusable Delay Provision irrelevant to the present dispute because Defendant invoked the protection of the Provision on October 29, 2009, and Plaintiff did not file the instant Complaint for more than thirty days thereafter. It is Plaintiff's opinion, therefore, that Defendant has already received the full benefit of the Force Majeure/Excusable Delay Provision, even assuming that Defendant's initial invocation of the Provision's protection was proper.
Importantly, however, the Force Majeure/Excusable Delay Provision does not categorize excusable delay as a Force Majeure event. Rather, it presents delays due to unforeseen causes as a separate type of hindrance to performance that may serve to excuse certain noncompliance with the terms of the MSA. And the Parties dispute whether the MSA contemplates following the Force Majeure protocol where, as here, an excusable delay in performance is alleged, rather than a Force Majeure event. This court might conjecture that the Parties could reasonably have intended for excusable delay to be addressed by a method similar to that used to address Force Majeure events. But, notably, that dispute does not fall within the narrow exception to mandatory arbitration for recovery on undisputed invoices. Rather, it is a question of the construction of the underlying contract language and, thus, it is a dispute "arising under or in connection with" the MSA that an arbitrator must resolve.
This court is obliged to resolve any doubts concerning the scope of arbitrable issues in favor of arbitration.[17] Because this court cannot say with "positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute"[18] over the interpretation and applicability of the Force Majeure/Excusable Delay Provision, it also cannot conclude that Plaintiff has overcome the strong presumption in favor of arbitrability.

IV. Conclusion

For the foregoing reasons, Defendant's Motion to Stay Proceedings and Compel Arbitration [# 10] is ALLOWED.
AN ORDER HAS ISSUED.

*217 ORDER

For the reasons set forth in the accompanying Memorandum, Defendant's Motion to Stay Proceedings and Compel Arbitration [# 10] is ALLOWED.
IT IS SO ORDERED.
NOTES
[1]  This court sets forth the facts as presented in the Complaint and construes them, as it must at this stage of the proceedings, in the light most favorable to Plaintiff.
[2]  See Compl., Ex. 1, ¶ 20.
[3]  Id. ¶ 7(b).
[4]  Id. ¶ 10.
[5]  Id.
[6]  See Compl. ¶¶ 22-23 ("22. On October 29, 2009, in response to an email requesting that Wireless provide a plan for satisfying the overdue and undisputed debt, Wireless informed GDIT that it was invoking the force majeure/excusable delay provision of the contract. Wireless stated that a third party had failed to provide financing, and that this constituted a force majeure event. 23. On October 30, 2009, GDIT responded with a letter to Wireless, stating that the failure to secure financing did not amount to a force majeure event. The letter further stated that, even if the event did constitute a force majeure event, the failure of the third party to provide financing had occurred over a year prior, and thus Wireless has failed to meet the `prompt notice' requirement of the contract. Finally, the letter explained that, under the contract, a force majeure event only excused Wireless from its performance for a period of 30 days.").
[7]  AT & T Techs. v. Communications Workers of America, 475 U.S. 643, 648-49, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) (internal quotations and citations omitted).
[8]  9 U.S.C. § 3.
[9]  AT & T Techs., 475 U.S. at 648-49, 106 S.Ct. 1415 (internal quotations and citations omitted).
[10]  Id. at 650, 106 S.Ct. 1415.
[11]  Id.
[12]  Combined Energies v. CCI, Inc., 514 F.3d 168, 172 (1st Cir.2008).
[13]  Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983).
[14]  Sourcing Unlimited, Inc. v. Asimco Int'l, Inc., 526 F.3d 38, 46-47 (1st Cir.2008).
[15]  See Compl., Ex. 1, ¶ 7(b), 20.
[16]  See Compl., Ex. 1, ¶ 10.
[17]  Moses H. Cone Memorial Hospital, 460 U.S. at 24-25, 103 S.Ct. 927.
[18]  Id.


901 N.E.2d 1085 (2005)
358 Ill. App.3d 1176
IN RE C.J.
No. 1-05-0832.
Appellate Court of Illinois, First District.
July 25, 2005.
Affirmed.


             Case: 13-13337   Date Filed: 11/05/2013   Page: 1 of 2

                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT

                       __________________________

                              No. 13-13337
                          Non-Argument Calendar
                       __________________________

                     D.C. Docket No. 3:12-cv-00054-TCB

CHRISTOPHER BYRANT WHITE,

                                                              Plaintiff-Appellant,

                                    versus

CITY OF LAGRANGE, GA, LOUIS M. DEKMAR, in his official and individual
capacity as Chief of Police for the City of LaGrange, Georgia, K-9 UNIT,
OFFICER J. CLOWER, individually and in his official and individual capacity,
JOHN DOE, in his official and individual capacity,

                                                           Defendants-Appellees.

                       __________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                      __________________________

                              (November 5, 2013)

Before HULL, MARCUS, and COX, Circuit Judges.

PER CURIAM:
               Case: 13-13337    Date Filed: 11/05/2013    Page: 2 of 2

      Christopher White challenges on this appeal the district court’s order

granting the Defendants summary judgment. The district court correctly held that

White abandoned all claims in his response to the Defendants’ summary judgment

motion except for his claim against Officer Clower in his individual capacity.

(Dkt. 24 at 5–6.) Although White appeals against all Defendants, he presents no

argument that the City of LaGrange is liable. White argues only that the district

court erred in granting summary judgment in favor of Clower individually on

White’s 42 U.S.C. § 1983 claim that Clower used excessive force in arresting him.

       The district court held that Clower was entitled to qualified immunity

because Clower did not violate a clearly established right. White contends that the

facts asserted in his affidavit show that Clower violated a clearly established

constitutional right. After careful review, we conclude that the district court

correctly held that no reasonable jury could believe White’s affidavit. (Dkt. 24 at 4

n.1.) See Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 1776 (2007) (“When

opposing parties tell two different stories, one of which is blatantly contradicted by

the record, so that no reasonable jury could believe it, a court should not adopt that

version of the facts for the purposes of ruling on a motion for summary

judgment.”).

      AFFIRMED.

                                          2


                                                                                May 18 2010

                                           DA 09-0614

                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2010 MT 109N

LAWRENCE ROEDEL,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Appellee.

APPEAL FROM:            District Court of the Eleventh Judicial District,
                        In and For the County of Flathead, Cause No. DV 08-1313(B)
                        Honorable Katherine R. Curtis, Presiding Judge

COUNSEL OF RECORD:

                For Appellant:

                        Larry Roedel, (self-represented litigant); Shelby, Montana

                For Appellee:

                        Hon. Steve Bullock, Montana Attorney General; John Paulson,
                        Assistant Attorney General; Helena, Montana

                        Edward J. Corrigan, Flathead County Attorney; Kalispell, Montana

                                                     Submitted on Briefs: April 21, 2010

                                                                  Decided: May 18, 2010

Filed:

                        __________________________________________
                                          Clerk
Justice W. William Leaphart delivered the Opinion of the Court.

¶1    Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2006, the following memorandum decision shall not be

cited as precedent. It shall be filed as a public document with the Clerk of the Supreme

Court, and its case title, Supreme Court cause number, and disposition shall be included

in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and

Montana Reports.

¶2    Lawrence Roedel appeals the order of the District Court denying his petition for

postconviction relief. In the underlying case, a Flathead County jury convicted Roedel of

deliberate homicide for shooting his wife. We affirmed the conviction in State v. Roedel,

2007 MT 291, 339 Mont. 489, 171 P.3d 694.

¶3    Roedel petitioned for postconviction relief, alleging ineffective assistance of

counsel, as well as misconduct by police and prosecutors. The District Court denied

Roedel’s petition, reasoning that it was not only technically defective, but also that it

lacked substantive merit. On appeal Roedel repeats his ineffective-assistance-of-counsel

and prosecutorial-misconduct arguments. Summarizing his appeal, Roedel insists, “The

State has no evidence not born out of fabrication and perjured testimony.”

¶4    We review a denial of postconviction relief to determine whether the district

court’s findings of fact are clearly erroneous and whether its conclusions of law are

correct. Robinson v. State, 2010 MT 51, ¶ 10, 355 Mont. 326, ___ P.3d ___. We review

ineffective-assistance-of-counsel claims de novo. Id.

                                        2
¶5    We have decided to dispose of this case pursuant to Section I, Paragraph 3(d)(i) of

our 1996 Internal Operating Rules, as amended in 2006, which provides for

memorandum opinions. It is manifest on the record before us that the District Court’s

factual findings were supported by sufficient evidence and its legal conclusions supported

by settled law. We therefore affirm.

                                                /S/ W. WILLIAM LEAPHART

We concur:

/S/ MIKE McGRATH
/S/ JAMES C. NELSON
/S/ MICHAEL E WHEAT
/S/ BRIAN MORRIS

                                        3


699 F.2d 1274
226 U.S.App.D.C. 122
CLOVERLEAF STANDARDBRED OWNERS ASSOCIATION, INC., Appellants,v.The NATIONAL BANK OF WASHINGTON, a banking corporation ofthe District of Columbia, et al.
No. 82-1221.
United States Court of Appeals,District of Columbia Circuit.
Argued Dec. 6, 1982.Decided Feb. 25, 1983.

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 81-00301).
Richard E. Rice, Baltimore, Md., for appellants.  Warren K. Rich and Stephen P. Kling, Baltimore, Md., were on the brief, for appellants.
Richard T. Tomar, Washington, D.C., for appellees.
Before GINSBURG and SCALIA, Circuit Judges, and McGOWAN, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GINSBURG.
GINSBURG, Circuit Judge:

1
This appeal challenges a district court order dismissing a civil action because a party "needed for just adjudication" under Rule 19 of the Federal Rules of Civil Procedure1 could not be joined as a defendant without destroying diversity jurisdiction.2   The matter in controversy revolves around a contract between two Maryland citizens, plaintiff-appellant Cloverleaf Standardbred Owners Association, Inc.  (Cloverleaf) and Laurel Harness Racing Association, Inc.  (Laurel).  Cloverleaf voluntarily dismissed the complaint as to Laurel, pursuant to Fed.R.Civ.P. 41(a)(1), and sought to proceed solely against defendant-appellee, the National Bank of Washington (NBW or Bank), a District of Columbia corporation.  NBW has no direct relationship to Cloverleaf, but it holds Laurel's deposit accounts and has made sizable loans to Laurel.  Cloverleaf seeks satisfaction of its contract claim against Laurel by reaching funds deposited with NBW by Laurel.

2
Emphasizing that the agreement between Cloverleaf and Laurel is pivotal to Cloverleaf's complaint, the district court determined:  1) Laurel was "needed for just adjudication" ;  2) because both Cloverleaf and Laurel were Maryland citizens and the case did not arise under federal law, joinder of Laurel was not possible;  3) in light of the particular facts and circumstances presented, dismissal was preferable to adjudication without Laurel.   See Park v. Didden, 695 F.2d 626, 628-29 (D.C.Cir.1982).  Reviewing this determination under an "abuse of discretion" standard, see Walsh v. Centeio, 692 F.2d 1239 (9th Cir.1982), we affirm.

I. BACKGROUND

3
Cloverleaf is a Maryland organization representing owners, drivers, and trainers of harness racing horses;  the absent party, Laurel, owned and operated Laurel Raceway, a harness racing track.  The contract on which Cloverleaf's complaint turns provided that Laurel would pay to Cloverleaf as racing purses a fixed percentage of the betting proceeds.  In turn, Cloverleaf would distribute the purses to its members, retaining a small share for administrative expenses.  Cloverleaf alleges that Laurel failed to pay $32,423.70 to cover expense reimbursements due Cloverleaf, and commenced this action to recover that amount with interest.

4
Laurel had established several deposit accounts at NBW.  In 1978 and 1979, Laurel experienced financial setbacks and borrowed, in a series of loans, a total of $4,850,000 from the Bank.  When Laurel defaulted on these loans, NBW offset the funds in Laurel's accounts against the debt.  Cloverleaf contends that the Bank wrongfully included in the setoff the amount Laurel owes Cloverleaf.

5
The complaint in this action named both NBW and Laurel as defendants.  NBW moved to dismiss the action, pursuant to Fed.R.Civ.P. 12(b)(1), for lack of subject matter jurisdiction.  Joint Appendix (J.A.) 36-45.  Complete diversity of citizenship between the parties was plainly absent since Cloverleaf and Laurel both had Maryland citizenship.  To cure the absence of complete diversity, Cloverleaf filed a notice voluntarily dismissing the complaint as to Laurel.  J.A. 47.  NBW then sought dismissal under Fed.R.Civ.P. 19 on the ground that Laurel was a person "needed for just adjudication" without whom the action should not proceed.  J.A. 60-64.  On January 29, 1982, the district court granted NBW's motion observing, inter alia, that "the absence of [Laurel] from a proceeding to determine the rights and obligations of Cloverleaf as they pertain to money held by [NBW] would hamper a determination by the Court since the very agreement at issue is between [Laurel] and Cloverleaf."    J.A. 4.  The district court stressed the absence at that time of any "readily apparent impediments to reinstitution of th[e] suit in the local court of the District of Columbia," where "Cloverleaf can obtain a determination of its rights and obligations under the agreement with [Laurel] as well as the responsibilities of [NBW] with respect to the [Laurel] accounts."    J.A. 4.

II. ANALYSIS
A. Standard of Review

6
We address initially the degree of deference due to a district court's reasoned explanation of its decision to dismiss an action pursuant to Rule 19.  The Ninth Circuit recently addressed this issue and held that de novo balancing should not occur on appeal;  instead, the district court's application of Rule 19(b)'s "equity and good conscience" test should be reviewed under an "abuse of discretion" standard.   See Walsh v. Centeio, supra, 692 F.2d at 1241-43;  Bakia v. County of Los Angeles, 687 F.2d 299, 301 (9th Cir.1982).3   We agree.

7
The Rules Advisory Committee has noted that the 1966 revision of Rule 19 was designed to steer analysis away from the "technical and abstract character[ization] of the rights or obligations of the persons whose joinder [is] in question," and to direct attention instead to "the pragmatic considerations which should be controlling."    Fed.R.Civ.P. 19 advisory committee notes on the 1966 amendments.  The Rule, as revised, does eliminate district court discretion to dismiss for nonjoinder simply because an absentee fits Rule 19(a)'s description.  District judges are plainly instructed to continue on to the Rule 19(b) determination "whether in equity and good conscience the action should proceed among the parties before [the court], or should be dismissed, the absent person being regarded as indispensable."4   This Rule 19(b) language "leaves the district judge with substantial discretion in considering which factors to weigh and how heavily to emphasize certain considerations in deciding whether the action should go forward in the absence of someone needed for a complete adjudication of the dispute."    7 C. Wright & A. Miller, Federal Practice and Procedure, Sec. 1604 at 45-46 (1972).  As the Ninth Circuit observed, the ultimate question Rule 19(b) poses is not "a purely legal issue";  it calls for the exercise of "judgmental discretion."    A district judge, "closer to the arena," is often better situated than is an appellate panel "to survey the practicalities involved in the litigation."   Walsh v. Centeio, supra, 692 F.2d at 1242 (quoting Broussard v. Columbia Gulf Transmission Co., 398 F.2d 885, 889 (5th Cir.1968)).

8
We do not stray today from this court's recent opinion in Park v. Didden, supra, in which we did not reach the "abuse of discretion" or de novo review issue.  The district court in Park, without attempting any reasoned explanation, had dismissed an action "for failure to join necessary and indispensable parties."    Concluding that the district court had "misunderstood and therefore misapplied" Rule 19, id., 695 F.2d at 627, we reversed the dismissal order.  Intelligent exercise of "judgmental discretion" was not possible in Park because the district court misread the Rule.  Here, however, the district judge proceeded as the Rule instructs and looked, finally, to Rule 19(b)'s "equity and good conscience" test.  When the decision by the court of first instance reflects a clear understanding that the Rule calls for practically-oriented consideration of the competing interests at stake, we should not balance the equities anew.  Instead, we should proceed as a court of review and respect the district court's evaluation if we discern no abuse of discretion.5

B. The Merits

9
1. Cloverleaf's unsupported assertions in the district court.

10
Over two months after NBW sought dismissal of the action under Rule 19, Cloverleaf filed a memorandum, dated January 8, 1982, in which it added to other arguments against dismissal the assertion that "Laurel is defunct, and at most at shell corporation."    J.A. 77.  Cloverleaf further suggested that Laurel is perhaps owned by NBW, citing "speculation" that NBW holds "a substantial portion of the [Laurel] stock by virtue of foreclosure on defaulted loans, secured by stock."    J.A. 77.  Cloverleaf presented nothing to document the assertion that "Laurel is a defunct shell without resources or assets," J.A. 78 n. 4, and the district court rejected the "unsupported and unverified" allegation as "a statement upon which the Court cannot rely."    J.A. 4 n.*

11
In the same January 8 submission, Cloverleaf alleged for the first time that it "already ha[d] secured a judgment against Laurel ... in a state court proceeding," J.A. 78, but "ha[d] been unable to execute on this judgment."    J.A. 78 n. 4.  Five days later, however, Cloverleaf reported to the district court that it had made an inadvertent error.  J.A. 82-83.  In fact, Cloverleaf said, Laurel had defaulted in the state (Maryland) action, but Cloverleaf did not "have a default judgment entered";  instead, Cloverleaf "abandoned" the case when NBW, named as a co-defendant, "secured a dismissal on jurisdictional grounds."    It would have been futile, Cloverleaf claimed, to "secur[e] a default judgment against Laurel."    J.A. 82.

12
On appeal Cloverleaf again referred to Laurel's "defunct" or bankrupt status and the suspicion that NBW owned "a substantial portion of the stock of Laurel."    Appellant's Brief at 13 n. 5;  Reply Brief at 3.  After oral argument, we granted Cloverleaf's request for leave to file supplemental material and received two documents:  (1) a copy of a certificate from the Maryland Department of Assessments and Taxation, dated December 3, 1982, stating that Laurel's charter "was annulled ... as of October 7, 1981, for failure to file the necessary reports and/or pay the taxes due thereon";  and (2) a copy of an April 1, 1980, order of the Circuit Court for Howard County, Maryland, in a case titled Cloverleaf Standardbred Owners Association, Inc. v. Laurel Harness Racing Association, Inc., No. A10155, entering judgment against Laurel for $25,732.43 plus interest.

13
It is apparent that the information contained in these documents was available to Cloverleaf while the case was pending in the district court.  Cloverleaf offers no justification for its failure to present the documents, or other official material, to the district judge for consideration in conjunction with NBW's request for a Rule 19 dismissal.  Instead, Cloverleaf rested on statements tendered without a shred of documentary support.  The district judge properly disregarded such unsupported statements in its January 29, 1982, decision,6 and we limit our review to the case as it was presented to the district court.7

14
2. Laurel as a "necessary" party.

15
Under Rule 19(a),8 a person is "to be joined if feasible" if (1) complete relief cannot be accorded in its absence;  or (2) the absentee's ability to protect its interests may be impaired by the disposition of the action;  or (3) those already parties will be subject to a substantial risk of incurring inconsistent obligations because of the absence.  Cloverleaf virtually concedes that Laurel fits Rule 19(a)'s description by admitting that "[t]he central issue at trial will be whether the funds on deposit [with NBW] belonged to Cloverleaf, or were owned by Laurel," Appellant's Brief at 9, and that "evidence regarding the nature of the banking relationship between Laurel and NBW will be central to resolution of this dispute."    Id. at 10.  All three Rule 19(a) concerns are implicated when the person whose obligation is centrally at issue is missing from the action.

16
3. Laurel as an "indispensable" party.

17
Rule 19(b),9 the Supreme Court said in Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968), indicates four interests relevant to the ultimate determination in each case "whether, in equity and good conscience, the court should proceed without a party whose absence from the litigation is compelled."   Id. at 109, 88 S.Ct. at 737.10   As cited by the district court in this case, the Provident Bank list directs courts to examine:  (1) the plaintiff's interest in having a forum;  (2) the defendant's interest in avoiding inconsistent relief or multiple litigation;  (3) the interest of the absent party in protecting his rights;  and (4) the interest in complete, consistent, and efficacious settlement of the controversy.  J.A. 3-4.

18
The district court gave prime place, as the Supreme Court did in Provident Bank, to the first factor, and underscored the apparent availability of "the local court of the District of Columbia" for Cloverleaf's complaint against Laurel and the Bank.  J.A. 4;  see supra p. 1276.11   This factor, the Supreme Court pointed out, assumes larger proportion when dismissal is sought, as it was here, at an early, pre-trial stage of the litigation.  We noted in Park v. Didden, supra, 695 F.2d at 631 n. 13, that where a plaintiff "will not have an adequate remedy elsewhere" because the statute of limitations has run, district courts should ordinarily retain the case and not dismiss it pursuant to Rule 19(b).  On January 29, 1982, when the district court dismissed this action, a reinstituted suit in the local court of the District of Columbia apparently would have been timely.12   Cloverleaf does not argue otherwise.  If the limitation period has run during the pendency of this appeal, the time bar is attributable to Cloverleaf's lapse, and not to the district court's order.

19
The district court next emphasized that "the very agreement at issue is between [Laurel] and Cloverleaf."    J.A. 4.  Absent Laurel's participation the interests of both Laurel and the Bank might be detrimentally affected, and there could be no complete settlement of the controversy.13   The latter interest, the Supreme Court observed in Provident Bank, has a public dimension;  "the courts and the public" have a stake "in settling disputes by wholes, whenever possible."    390 U.S. at 111, 88 S.Ct. at 738.

20
Summarizing its examination, the district court stated that "the policy concerns underlying Rule 19 will not be frustrated by requiring [Cloverleaf] to pursue this action in local court in the District of Columbia which is the proper forum for resolution of this dispute."    J.A. 4.14   We find no abuse of discretion in that evaluation.  On the contrary, when a district judge adverts to the relevant considerations and engages in a careful, pragmatically-oriented analysis to determine whether a person who cannot be joined as a party is "needed for just adjudication," an appellate panel should generally respect the "judgmental discretion" exercised by the court of first instance.  See supra p. 1277.

CONCLUSION

21
The district court, exercising sound discretion, considered the factors listed in Rule 19 and determined that Laurel was a person "needed for just adjudication" and that the action should not proceed in Laurel's absence.  Since Laurel's joinder as a defendant would have destroyed the sole jurisdictional basis for bringing the controversy to a federal tribunal, the district court properly dismissed the action.  For the reasons stated, we hold that no abuse of discretion taints the judgment before us for review.  Accordingly, the judgment of the district court is

22
Affirmed.

1
 Rule 19, sections (a) and (b) read:
Joinder of Persons Needed for Just Adjudication.
(a) PERSONS TO BE JOINED IF FEASIBLE.    A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.  If he has not been so joined, the court shall order that he be made a party.  If he should join as a plaintiff but refuses to do so, he may be made a defendant, or, in a proper case, an involuntary plaintiff.  If the joined party objects to venue and his joinder would render the venue of the action improper, he shall be dismissed from the action.
(b) DETERMINATION BY COURT WHENEVER JOINDER NOT FEASIBLE.    If a person as described in subdivision (a)(1)-(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable.  The factors to be considered by the court include:  first, to what extent a judgment rendered in the person's absence might be prejudicial to him or those already parties;  second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided;  third, whether a judgment rendered in the person's absence will be adequate;  fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.

2
 The dismissal was ordered "with prejudice."    The "prejudice" indicated by such a dismissal relates to the filing of another action between the same parties on the same claim in federal court.    Dismissal for failure to join a party under Rule 19, like dismissal for lack of jurisdiction or improper venue, does not operate as an adjudication upon the merits.  See Fed.R.Civ.P. 41(b);  Restatement (Second) of Judgments Sec. 20 (1982)

3
 The Ninth Circuit noted in Centeio that "the vast majority of appellate decisions ... under Rule 19(b) ... contain no reference to any standard of review whatever."    692 F.2d at 1241

4
 The Supreme Court stressed in the leading decision on the approach Rule 19 requires, Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 118-19, 88 S.Ct. 733, 742-743, 19 L.Ed.2d 936 (1968):
The decision whether to dismiss (i.e., the decision whether the person missing is "indispensable") must be based on factors varying with the different cases, some such factors being substantive, some procedural, some compelling by themselves, and some subject to balancing against opposing interests.

5
 We recognize that there are cases in which Rule 19 does not figure in a district court's decision but becomes an issue on appeal in conjunction with a jurisdiction or venue challenge pursued by one or more of several defendants.  In such cases, the court of appeals may independently apply Rule 19 or it may remand to the district court for initial consideration of the Rule's application.  See Walsh v. Centeio, supra, 692 F.2d at 1241-42

6
 There was limited discovery in this case:  Cloverleaf served NBW with a set of interrogatories and requested production of documents, but NBW refused to answer any interrogatories or produce any documents relating to its relationship with Laurel, asserting the confidential nature of such information
Cloverleaf now urges, more forcibly than it did in the district court, that further discovery was warranted prior to the Rule 19 dismissal decision.  Cloverleaf's situation is analogous to that of a party opposing a motion for summary judgment who claims that he requires further time for investigation and discovery in order to present facts essential to justify opposition to the motion.  Under Fed.R.Civ.P. 56(f), a party so situated "must state by affidavit why he is unable to present the necessary opposing material."    10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure Sec. 2740 at 530 (2d ed. 1983).  Bare, unverified allegations will not do.  Cloverleaf, at the very least, should have submitted to the district court the documents it tendered post-argument on appeal.  No discovery from NBW was required to obtain information about the annulment of Laurel's charter in 1981, or to locate the 1980 default judgment that Cloverleaf itself had secured.  By affidavit, moreover, Cloverleaf might have explained why it could not obtain, absent further discovery from NBW, any additional corroborating information, if indeed facts not in this record would support such an explanation.

7
 Under Fed.R.Civ.P. 60(b), a party may seek district court relief from a final judgment for specified reasons.  Cloverleaf made no 60(b) motion and no basis for relief under that Rule occurs to us.  Cloverleaf cannot claim "excusable neglect," or assert that the documents submitted after argument of the appeal constituted "newly discovered evidence which by due diligence could not have been discovered" in time to oppose dismissal in the district court

8
 For the full text of Rule 19(a), see supra note 1

9
 For the full text of Rule 19(b), see supra note 1

10
 The Court noted that, for convenience, its listing followed the order in Reed, Compulsory Joinder of Parties in Civil Actions, 55 Mich.L.Rev. 327, 330 (1957), rather than the order in Rule 19(b).  390 U.S. at 109 n. 2, 88 S.Ct. at 737 n. 2

11
 Cloverleaf urges, based on the order of the listing in Rule 19(b), that the "availability of an alternative forum" consideration "comes into play," if at all, only after examination of the first three factors listed in the text of Rule 19(b).  Reply Brief at 6-8.  It is evident from Provident Bank that the Rule does not call for such ordering by rank.  See 390 U.S. at 109, 118-19, 88 S.Ct. at 737, 742-743.  The four enumerated factors do not have independent significance;  they serve as guides to the overarching "equity and good conscience" determination

12
 Cloverleaf asserted that NBW wrongfully set off racing purpose monies against Laurel's debt to the Bank on or about October 1, 1979, J.A. 10.  See D.C.Code Sec. 12-301 (three-year limitations period for actions on a contract or for any unenumerated action)

13
 In Park v. Didden, supra, 695 F.2d at 632, we pointed out that a defendant may implead an absentee "who is or may be liable to him for all or part of the plaintiff's claim against him," Fed.R.Civ.P. 14(a), and that the district court would have ancillary jurisdiction over the third-party claim.  While NBW here might have impleaded Laurel, Cloverleaf, as the district court recognized, J.A. 5, could not piggy-back on such a third-party complaint to assert a claim against Laurel.   See Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374-76, 98 S.Ct. 2396, 2402-2403, 57 L.Ed.2d 274 (1978) (plaintiff cannot circumvent "statutory requirement of complete diversity by the simple expedient of suing only those defendants who were of diverse citizenship and waiting for them to implead nondiverse defendants")

14
 In contrast to Park v. Didden, supra, where the controversy centered on the actions of parties who were of diverse citizenship, the contract on which this action is dependent is between citizens of the same state