Not For Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

Nos. 05-1485

06-1209

RICHARD DUHAIME, ET AL.,

Plaintiffs,

____________________

THOMAS W. OLICK,

Plaintiff, Appellant,

v.

JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY, ET AL

Defendants, Appellees.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

 Boudin, Chief Judge,

Torruella and Howard, Circuit Judges.

Thomas W. Olick on brief pro se.

Edwin G. Schallert and Debevoise & Plimpton LLP on brief for

appellees.

June 28, 2006
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Per Curiam. After pursuing an earlier appeal in this

court, Olick v. John Hancock Mut. Life Ins. Co., 2004 WL 1563260

(1 Cir. 2004) (per curiam), and initiating further district court st

proceedings, appellant Olick again seeks appellate review.

Assuming familiarity with our prior opinion, we affirm the orders

in question substantially for the reasons recited by the district

court, adding only the following comments.

First. In No. 05-1485, appellee John Hancock suggests

that our review does not encompass the November 30, 2004 ruling,

but is instead confined to the February 28, 2005 order denying Rule

59(e) relief. Although Olick sought to file a separate notice of

appeal from each order, the first one was not accepted for filing,

for reasons that he now challenges. If it were true, as Olick

asserts, that the first notice of appeal was rejected simply

because it was unaccompanied by the required filing fee or because

it listed the wrong “session identification” at the end of the case

number, his challenge would have potential merit. But we need not

explore these issues. Olick’s intent being clear, and Hancock

having suffered no prejudice, we conclude that the notice of appeal

filed on March 21, 2005 sufficed to appeal from both orders. See,

e.g., Marie v. Allied Home Mtg. Corp., 402 F.3d 1, 8 (1 Cir. st

2005). The challenge to the court’s refusal to extend the time to

pay the filing fee is thus moot. 
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Second. In No. 05-1485, just like in the prior appeal,

Olick advances two basic complaints: (1) as to the four policies,

he charges that Hancock has not made settlement offers that comply

with the arbitrator’s decision; and (2) as to the seven policies,

he charges that Hancock improperly excluded them from the ADR

process entirely. Both arguments stumble right out of the gate.

As he now acknowledges, Olick has relied on the wrong version of

the settlement agreement–-the original version filed in June 1997,

rather than the amended version filed in October 1997. He attempts

to shift the blame for this oversight, complaining that neither

Hancock nor the court advised him of or provided him with the

amended agreement. Yet Olick had constructive notice thereof; the

amended agreement was listed on the docket, for example, and was

prominently mentioned in the district court’s opinion adopting

same. See Duhaime v. John Hancock Mut. Life Ins. Co., 177 F.R.D.

54, 59, 62, 73 (D. Mass. 1997). An affirmance here would be

permissible on this basis alone. 

Third. Olick’s claims with respect to the four policies

also falter on other grounds. We agree with the district court

that Olick “has failed to demonstrate in any comprehensible fashion

that the Hancock offer[s] indeed deviate[] from the arbitrator’s

award.” Moreover, Olick’s arguments in this regard come too late.

Prior to the first appeal, the district court denied his motion to

compel without prejudice to his making a showing of noncompliance
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with the arbitrator’s decision. Olick sought reconsideration but

attempted no such showing, and on appeal we dismissed the

allegations of noncompliance as “unsupported.” Back before the

district court, he stated that this court had “directed” him “to

file proof” as to why Hancock’s offers were insufficient; our

opinion contained no such directive. And we find nothing in the

allegations now advanced that could not have been raised earlier.

Fourth. In a separate argument concerning one of these

four policies, Olick complains that Hancock has made no settlement

offer at all. He faults Hancock and the district court for “simply

ignor[ing]” this allegation, but it is he who is in default. He

did not raise this matter in his August 2003 motion for

reconsideration (after receiving Hancock’s offers), nor on appeal

(voicing no objection to our statement that offers on “each of the

four” claims had been made), nor in the ensuing motion to compel

compliance. The first reference to the lack of such an offer

appeared in the memo accompanying that motion, but no specific

complaint was voiced in this regard. Thereafter, neither in his

motion for preliminary determination nor in his motion for

sanctions did Olick raise the issue. Understandably, therefore,

the court did not discuss it in its November 30, 2004 decision.

Not until the memo accompanying his motion for reconsideration did

Olick explicitly raise an objection about the lack of an offer.

While we do not know if the charge is true (the record on appeal
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neither confirms nor refutes it), Olick has forfeited his

opportunity for judicial review thereof. See, e.g., VenegasHernandez v. Sonolux Records, 370 F.3d 183, 189-90 (1 Cir. 2004) st

(noting “usual rule that parties cannot use Rule 59(e) motions to

raise new arguments that could have been made before judgment

issued or to undo their own procedural failures”). 

Fifth. The claims involving the seven policies were

excluded from the ADR process on claim-preclusion grounds, inasmuch

as claims involving those same policies had been the subject of a

1995 NASD arbitration award. In Olick’s view, the preclusive

effect of the prior arbitration was itself an issue for the

arbitrator. He relies on three main arguments. He first asserts

that determining arbitrability here is essentially equivalent to

determining class membership: once the latter is established, all

further disputes must go to arbitration. This argument sweeps too

broadly, for it would deem arbitrable various disputes that have

generally been held to be matters for the court. See, e.g., Marie,

402 F.3d at 11-15 (whether litigation-related activity amounts to

waiver of arbitration); John Hancock Mut. Life Ins. Co. v. Olick,

151 F.3d 132, 137-39 (3d Cir. 1998) (preclusive effect of prior

court judgment). 

Olick also contends that the claim-preclusion issue is a

question of “eligibility” to participate in the ADR process, which

means that, like all such questions, it is to be resolved in the
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same manner as substantive claims for relief–-i.e., first by the

CRT and then if necessary by the arbitrator. Whether or not

Olick’s characterization is correct, this argument is flawed; all

eligibility questions are not resolved in that fashion, as a glance

at the “preliminary review” provisions makes clear.

Finally, Olick alleges that two provisions of the

settlement specifically contemplate that claim-preclusion issues

would be handled by the arbitrator. The first calls for an award

to be “offset” by any “prior relief” received by a claimant. Yet

claim preclusion is not an “offset” mechanism. And this provision

refers to “complaint[s] filed with” Hancock, which is not the

situation here. The second provides that, absent a written request

for exclusion, a class member would be bound by the settlement

despite having “previously initiated ... individual litigation.”

The context makes clear that this refers to pending actions.

Moreover, the latter two arguments were untimely, having

first surfaced in Olick’s motion for reconsideration. Such

tardiness is especially notable given the earlier round of district

court proceedings and our suggestion that Olick might again be able

to raise the matter upon the filing of a “proper” motion.

Sixth. One of these seven claims made it through the CRT

stage, only to be deemed ineligible prior to arbitration. Noting

that all CRT decisions are binding on Hancock (with exceptions not

here relevant), Olick argues that Hancock was obligated to accept
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the CRT’s implicit finding of eligibility. Yet, as mentioned

above, all eligibility questions are not submitted to the CRT, and

Olick has provided no reason to think that the CRT actually

considered that issue here.

Seventh. As to the merits of the claim-preclusion issue,

Olick does not argue that the 1995 NASD award was entirely lacking

in preclusive effect, and properly so. See Olick, 151 F.3d at 140

(noting “parties’ intentional adherence to a binding principle of

finality similar to res judicata as applied to arbitration awards

rendered by the NASD”). Instead, he advances various reasons--

often, again, in untimely fashion--why claim preclusion should not

apply here. Each proves unavailing. He asserts, with little

elaboration, that the NASD claims and the class claims involved

different matters entirely. Yet a review of the available NASD

materials (complaint, brief and ruling) demonstrates some overlap

between the two sets of claims. Indeed, the degree of overlap may

be higher than first appears; the record contains a June 4, 1998

affidavit from Olick, submitted in connection with the class suit,

which focuses on a key issue involved in the NASD arbitration

(alleged misrepresentations that mortality costs would remain

constant).

Olick also contends that his class claims could not have

been pursued in the NASD arbitration because they relied in part on

newly discovered evidence, some of which had been concealed by
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Hancock. Yet he offers no description of such evidence. He

contends that NASD rules forbid arbitration of disputes involving

life insurance policies, but he took the opposite position before

the NASD, with obvious success. And he emphasizes his pro se

status at the time the NASD arbitration was initiated, but

acknowledges that he subsequently obtained counsel who prepared the

brief and attended the hearings.

Eighth. In No. 06-1209, Olick appeals from the denial of

a recent motion asking that the November 30, 2004 ruling be vacated

and the district court judge be recused. We see no basis for

either request. Olick complains that he was not advised of various

filings and that some of his own submissions were never filed. As

to the former, docketed matters were listed on the docket. And

Olick provides no support for his suggestion that he was entitled

to be served with or notified of all class action filings. As to

the latter, we note that Olick has been enjoined from filing

further papers in this matter without court approval (a ruling not

challenged on appeal). And what appears to be his chief

complaint–-that his first notice of appeal was not accepted for

filing-–is moot for the reasons indicated above. 

Affirmed. The motion in No. 05-1485 to file a

supplemental brief and appendix is denied.