                  Not for publication in West's Federal Reporter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

No.   02-1385

                                 WEST WATERS,

                           Plaintiff, Appellee,

                                        v.

                EARTHLINK, INC., and ONEMAIN.COM, INC.,

                         Defendants, Appellants.


           APPEAL FROM THE UNITED STATES DISTRICT COURT

                   FOR THE DISTRICT OF MASSACHUSETTS

           [Hon. Robert E. Keeton, U.S. District Judge]


                                     Before

                         Selya, Circuit Judge,
                    Farris,* Senior Circuit Judge,
                      and Howard, Circuit Judge.


     Christopher F. Robertson, with whom Brian E. Pastuszenski,
Colleen M. Geary, and Testa, Hurwitz & Thibeault, LLP were on
brief, for appellants.
     Bruce A. Bierhans, with whom Law Office of Bruce A. Bierhans,
Carlin J. Phillips and Phillips & Garcia, LLP were on brief, for
appellee.


                              October 31, 2003


      *Of the Ninth Circuit, sitting by designation.
           Per Curiam.    This putative class action suit arises out

of plaintiff West Waters' complaints about allegedly poor internet

service.   Defendants-appellants Earthlink, Inc., and OneMain.com,

Inc., appeal the district court's refusal to dismiss or stay the

action pending arbitration.

           Plaintiff is an individual who resides in Wellfleet,

Massachusetts, and was a customer of a local internet service

provider (ISP) that was acquired by OneMain in 1999.    In September

2000, OneMain became a wholly owned subsidiary of Earthlink.

Plaintiff brought a state court action alleging that, following

OneMain's acquisition of the ISP with whom he had originally

contracted, OneMain (and then Earthlink) breached their assumed

agreement(s) to provide him with adequate internet services and

committed unfair or deceptive trade practices in violation of Mass.

Gen. Laws chapter 93A.

           Defendants removed the case to the district court on the

basis of diversity jurisdiction and thereafter moved to dismiss or

stay it pending arbitration pursuant to the Federal Arbitration

Act, 9 U.S.C. § 3.       The district court denied the order without

prejudice and permitted discovery to proceed because, in its view,

defendants had not established that plaintiff had in fact agreed to

arbitrate any disputes he might have with them.      Defendants have

taken an immediate appeal from the district court's order under 9

U.S.C. § 16(a)(1)(C), see Intergen N.V. v. Grina, No. 03-1056, 344


                                  -2-
F.3d 134, 140 (1st Cir. 2003), arguing that the district court

erred in (1) concluding that they had not established the existence

of   a   binding   agreement    to   arbitrate        between      themselves   and

plaintiff, and (2) ordering unlimited discovery.                Even assuming we

have jurisdiction to address it (an issue ignored by the parties),

defendants'    second    argument       was     not    made     with   sufficient

specificity in the district court to preserve it for appellate

review.    See United States v. Frisby, 258 F. 3d 46, 48 (1st Cir.

2001).    Accordingly, we proceed directly to the merits of their

first appellate argument.

            Our review of the record convinces us that the district

court's    conclusion   was    sound.      In    support      of    their   motion,

defendants submitted a copy of a OneMain license and service

agreement that contains an arbitration provision which purports to

bind its customers, and an affidavit stating that links to the

agreement were placed on the web site of both the ISP with whom

plaintiff had contracted and OneMain's own website.                 Conspicuously

absent, however, is any convincing explanation why we should

conclude that plaintiff should have seen these links. Nor is there

other compelling evidence that plaintiff was, or should have been,

on notice that he was bound to arbitrate any dispute he might have

with OneMain.      Were OneMain customers only able to access the

internet through these websites?           How prominently were the links

displayed?    How were they labeled or explained?                   None of these


                                     -3-
potentially relevant issues is answered by the record.          And absent

a showing that it is reasonable to assume that plaintiff would have

seen the links, we are at a loss to see how he could be found to

have agreed to arbitrate any disputes with defendants.

            Even more fundamentally, we have serious doubts that this

case meets the amount-in-controversy requirement of 28 U.S.C. §

1332, the basis on which it was removed.         While we recognize that

dismissal   for   failure   to   establish     the   amount-in-controversy

requirement (here, more than $75,000) is appropriate only if the

court is satisfied to a legal certainty that plaintiff is not

entitled to recover from defendants the jurisdictional minimum,

see, e.g., Spielman v. Genzyme Corp., 251 F.3d 1, 5 (1st Cir.

2001), we do not presently see how plaintiff's actual damages, even

if multiplied under ch. 93A, could approach such a figure.1            After

all, the amount-in-controversy must be satisfied independent of

other plaintiffs' claims or any attorneys' fees to which the class

may be statutorily entitled.       See id. at 7-10.

            Because the district court is better situated to resolve

any   amount-in-controversy      issue,   we   are   content   for   present

purposes simply to raise it.2      For the reasons set forth above, we



      1
      We note that the furniture company that plaintiff owns, and
which allegedly was harmed by defendants' lapses, is not a named
plaintiff.
      2
      The district court has, of course, authorized full discovery,
and that may shed light on the amount actually in controversy.

                                    -4-
affirm the denial without prejudice of defendants' motion to

dismiss or stay.

          Affirmed.




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