                                                                    NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 18-2977
                                      _____________

                                    COREY BROWN,
                                           Appellant

                                             v.

                CERTAIN UNDERWRITERS AT LLOYDS, LONDON;
                        UNDERWRITERS AT LLOYDS
                             _______________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                               (D.C. No. 2-16-cv-02737)
                          District Judge: Hon. J. Curtis Joyner
                                    _______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                  September 10, 2019

           Before: CHAGARES, JORDAN, and RESTREPO, Circuit Judges.

                                (Filed: September 17, 2019)
                                     _______________

                                        OPINION
                                     _______________




       
        This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
JORDAN, Circuit Judge.

       Corey Brown appeals from an order of the District Court granting summary

judgment against him and in favor of Certain Underwriters at Lloyds, London, (“Lloyds”)

in this insurance coverage dispute. For the following reasons, we will affirm.

I.     BACKGROUND

       Brown obtained a fire insurance policy from Lloyds, an underwriter based in

London, for a house he owned in Philadelphia. That policy contained a clause stating

that the house must be occupied as a condition of coverage. To demonstrate compliance

with that condition, Brown provided Lloyds with a copy of a residential lease for the

house that listed Judy Cooks as a near-future tenant.

       Less than three weeks later, on the day that Cooks was supposedly scheduled to

move in, fires began in multiple locations in the house. The record shows the fires were

spread by accelerants. Brown submitted a claim for the full policy limits of the

insurance, but Lloyds began an investigation of the fires and determined that the claim

should be held pending completion of the investigation.

       One year later, Brown filed this action in Pennsylvania state court, seeking to

compel Lloyds to pay the full policy limits as well as lost rental income. Lloyds removed

the case to the District Court and asserted counterclaims alleging, among other things,

that Brown had violated the Pennsylvania Insurance Fraud Statute.

       During discovery, Lloyds deposed Brown. At the deposition, Brown invoked his

Fifth Amendment right against self-incrimination and, on the advice of counsel, refused

to answer questions related to the insurance policy, the house, or the fires.

                                              2
       Lloyds subsequently filed a motion for discovery sanctions to preclude Brown

from introducing any evidence on those subjects. Brown did not respond to that motion.

The District Court partially granted Lloyds’s request, barring Brown from testifying on

those subjects but nevertheless permitting him to introduce evidence on those subjects

from other sources.1

       Lloyds then filed a motion for partial summary judgment on Brown’s claims and

most of its counterclaims.2 For support, Lloyds presented the unchallenged testimony of

Cooks that she never intended to move into the house and only signed the lease so Brown

could obtain insurance for the property. Once again, Brown failed to respond. The

District Court granted the motion in its entirety. The Court found the following facts to

be beyond genuine dispute: that Brown represented the property would be occupied based

on Cooks’s one-year lease; that Cooks only signed the lease so Brown could obtain

insurance; that Brown never believed that Cooks would move in or pay him rent; and that

those misrepresentations were material to Lloyds’s risk of insuring the property.



       1
         The District Court evaluated the motion on the merits. Relying on SEC. v.
Graystone Nash, Inc., 25 F.3d 187 (3d Cir. 1994), the Court noted that sanctions may be
imposed in a civil case when one party invokes the Fifth Amendment to withhold
discoverable material. As required by Graystone Nash, the Court balanced the interests
of the party invoking the Fifth Amendment and the interests of the opposing party. The
Court determined that precluding Brown from offering testimony was “the appropriate
remedy because it preclude[d] Plaintiff from later surprising Defendant by waiving the
Fifth Amendment at trial, yet [the] remedy [did] not unduly punish Plaintiff for invoking
the Fifth Amendment because he [could] still advance his case with other competent
evidence.” (App. at 7.)
       2
         Lloyds moved for summary judgment on all of its counterclaims except one, but
resolution of the other counterclaims provided the relief requested in that counterclaim.
                                             3
Following an evidentiary hearing, it awarded $171,397.11 in compensatory damages to

Lloyds.

       Brown timely appealed.

II.    DISCUSSION3

       In a bare bones brief, Brown argues that the District Court abused its discretion

when it imposed a discovery sanction precluding him from offering testimony because he

invoked his Fifth Amendment privilege against self-incrimination. He says that he was

within his rights to assert the privilege during his deposition and argues that the sanction

imposed was impermissible. He further contends that, because of the sanction, the

District Court based its summary judgment decision on a deficient record. His

arguments, however, such as they are, have all been waived,4 so we will affirm.

       “Waiver … is the intentional relinquishment or abandonment of a known right.”

Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist., 877 F.3d 136, 147 (3d Cir. 2017)

(citation and internal quotation marks omitted). To preserve an argument for appeal, a

party must “rais[e] the same argument in the District Court[.]” United States v. Joseph,

730 F.3d 336, 337 (3d Cir. 2013). Indeed, we have “consistently held that [we] will not

consider issues that are raised for the first time on appeal.” Harris v. City of

Philadelphia, 35 F.3d 840, 845 (3d Cir. 1994). When a party does not raise an argument



       3
        The District Court had jurisdiction under 28 U.S.C. §§ 1332 and 1441. We have
appellate jurisdiction under 28 U.S.C. § 1291.
       4
         We recognize the difference between waiver and forfeiture. Here, this is a
deliberate waiver given Brown’s invocation of his Fifth Amendment rights.
                                              4
in district court, that failure “constitutes a waiver of the argument.” Belitskus v.

Pizzingrilli, 343 F.3d 632, 645 (3d Cir. 2003) (citation omitted). Failure to respond to a

motion is tantamount to not raising an argument, making the argument unavailable on

appeal. Huck v. Dawson, 106 F.3d 45, 51 (3d Cir. 1997).

       Here, Brown failed to respond to any of Lloyds’s arguments before the District

Court, and, because of that, he never raised the arguments he now presses on appeal. His

arguments have thus been waived, and we decline to address them.

III.   CONCLUSION

       For the foregoing reasons, we will affirm the orders of the District Court granting

summary judgment and damages to Lloyds.




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