                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 17-2299


THE HUMANE SOCIETY OF THE UNITED STATES,

                    Plaintiff - Appellant,

             v.

NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA,

                    Defendant - Appellee.



Appeal from the United States District Court for the District of Maryland, at Greenbelt.
Paul W. Grimm, District Judge. (8:16-cv-02029-PWG)


Submitted: March 5, 2019                                          Decided: March 15, 2019


Before AGEE, KEENAN, and QUATTLEBAUM, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Conor B. O’Croinin, John J. Connolly, ZUCKERMAN SPAEDER LLP, Baltimore,
Maryland, for Appellant. Linda S. Woolf, Joseph B. Wolf, Derek M. Stikeleather,
GOODELL, DEVRIES, LEECH & DANN, LLP, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

          The Humane Society of the United States (“HSUS”) appeals the district court’s

order dismissing under Fed. R. Civ. P. 12(b)(6), on res judicata grounds, HSUS’s action

to recover settlement funds pursuant to an insurance policy issued by National Union Fire

Insurance Company of Pittsburgh, Pa. (“NU”). The district court held that HSUS’s

insurance claim was barred by the final judgment in The Humane Soc’y of the U.S. v.

Nat’l Union Fire Ins. Co. of Pittsburgh, No. 8:13-cv-01822-DKC (D. Md.) (“Humane

Society I”), in which the district court denied HSUS leave to amend its complaint to

assert the same claim against NU. See Humane Society I (D. Md. July 11, 2016). We

affirm.

          Because HSUS’s opening brief does not contest any aspect of the district court’s

dispositive res judicata analysis, any such challenge is waived. See, e.g., United States v.

Cohen, 888 F.3d 667, 685 (4th Cir. 2018). HSUS argues instead that a Maryland Circuit

Court judgment, issued during the pendency of this appeal, has collateral estoppel effect

on the issue of NU’s liability to HSUS in the present matter. The Maryland judgment

held that NU improperly denied coverage under the same insurance policy to an affiliate

of HSUS, the Fund for Animals (“FFA”).             The FFA action concerned the same

underlying settlement funds that HSUS seeks to recover here. Invoking the “last-in-time

rule,” HSUS contends that the Humane Society I judgment no longer bars HSUS from

recovering against NU, for the Maryland judgment in the FFA Recovery Action occurred

later in time.     See Treinies v. Sunshine Mining Co., 308 U.S. 66, 76-77 (1939);

Restatement (Second) of Judgments § 15 (Am. Law Inst. 1982).

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      While we take judicial notice of the Maryland judgment, see Fed. R. Evid.

201(b)(2), we disagree with HSUS about the preclusive effect of that judgment.

Collateral estoppel does not apply unless “the issue decided in the prior adjudication [is]

identical with the one presented in the action in question.” Garrity v. Md. State Bd. of

Plumbing, 135 A.3d 452, 459 (Md. 2016); see Allen v. McCurry, 449 U.S. 90, 96 (1980)

(preclusive effect of state court judgment is governed by law of state that entered

judgment). In adjudicating the FFA action, the Maryland court explicitly refrained from

reaching the issue of NU’s liability to HSUS, and therefore the issues in the two actions

do not align. Furthermore, HSUS’s reliance on the last-in-time rule is misplaced. This

rule applies only where there are “inconsistent final judgments,” Restatement (Second) of

Judgments § 15, and there is nothing inconsistent between the judgments in Humane

Society I and the FFA Recovery Action. Even if the Maryland judgment in favor of FFA

resolved the propriety of NU’s denial of coverage to HSUS, it would present no conflict

with Humane Society I, for the district court there disposed of HSUS’s insurance claim

on wholly separate grounds, specifically a lack of good cause for HSUS’s failure to assert

that claim in a timely fashion. Consequently, we find no merit in HSUS’s collateral

estoppel argument.

      HSUS additionally argues that the district court’s standing motions procedure

violates Fed. R. Civ. P. 83 and the Rules Enabling Act, 28 U.S.C. § 2072 (2012).

Because HSUS did not raise this issue before the district court, reversal is appropriate

only if HSUS can demonstrate fundamental error or a denial of fundamental justice. In re

Under Seal, 749 F.3d 276, 287 (4th Cir. 2014). Because we discern no error, let alone

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fundamental error, in the district court’s motions procedure, we decline to disturb the

judgment on this ground.

      Accordingly, we affirm the judgment of the district court. We grant NU’s motion

to file an addendum to its brief. We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before this court and argument

would not aid the decisional process.

                                                                             AFFIRMED




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