          United States Court of Appeals
                      For the First Circuit

No. 12-1473

                  DEAN F. HATCH; MARY L. HATCH,

                     Plaintiffs, Appellants,

                                v.

                   TRAIL KING INDUSTRIES, INC.,

                       Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

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


                              Before

                       Lynch, Chief Judge,
                Boudin and Lipez, Circuit Judges.


     J. Michael Conley, with whom Kenney & Conley, P.C. was on
brief, for appellants.
     Myles W. McDonough, with whom Christopher M. Reilly and Sloane
and Walsh, LLP were on brief, for appellee.



                         November 2, 2012
            LYNCH, Chief Judge.       This case involves the doctrine of

claim preclusion.

            Dean Hatch was severely injured in a workplace accident

and sued Trail      King,     the   custom   manufacturer     of   the   trailer

involved in the accident, in October 2007.            The sad details of the

accident and resulting injuries are set forth in our opinion in

Hatch v. Trail King Industries, Inc., 656 F.3d 59 (1st Cir. 2011).

            There, we affirmed a jury's finding, in September of

2010, that defendant had not been negligent nor in breach of any

warranty, against claims of instructional error and error in the

ruling on a motion in limine.         Id. at 60-61.    On January 19, 2010,

in the trial court in that diversity case, plaintiffs had belatedly

attempted to amend their complaint to add another claim, one under

Mass. Gen. Laws c.93A for unfair and deceptive trade practices.

The trial judge denied the motion, finding the effort to amend

untimely.    The plaintiffs did not appeal this denial in their

earlier appeal.

            This case, which started in 2010 and was stayed during

the 2007 suit, concerns whether the plaintiffs may now maintain an

independent suit for the c.93A claims against Trail King.                   The

district    court   thought    not,   for    two   reasons:   (1)   this   case

constituted impermissible claim-splitting; and (2) "having heard

the evidence in the jury trial, [it] s[aw] no basis on which it

could reach a different result," because "the issues tried to the


                                      -2-
jury . . . are identical to any meriting 93A consideration."               The

trial court dismissed those claims with prejudice.

             On appeal, plaintiffs argue broadly that Mass. Gen. Laws

c.93A, § 9(8) provides an exception to the normal rules of res

judicata, a question the state's highest court has not directly

addressed.     But context is everything, and on the facts of this

case, we think that both the federal courts and the state courts

would agree that the plaintiffs may not now bring this c.93A claim

because of the failure to appeal from the denial of the motion to

amend.     That resolution satisfies any concerns under Erie Railroad

Co.   v.    Tompkins,    304   U.S.   64    (1938),   and   avoids   extensive

discussion of the effects of the Supreme Court's opinion in Semtek

International Inc. v. Lockheed Martin Corp., 531 U.S. 497 (2001).

                                       I.

             The procedural history is important, so it is set forth

in some detail.         In October 2007, plaintiffs filed a complaint

against Trail King asserting negligence, breach of warranty, and

loss of consortium (the "2007 action").          On February 21, 2008, the

parties submitted a joint statement to the district court setting

a joint discovery plan and motion schedule, which in relevant part

set a deadline of May 15, 2009 for amending or supplementing the

pleadings.     The district court accepted that proposed date as the

deadline for filing amendments.             Plaintiffs never requested an

extension of the deadline to amend the pleadings and the court


                                      -3-
never altered it, although the trial court granted a number of

extensions for the completion of discovery.

            On   January   15,   2010,    Trail   King   moved   for   summary

judgment.    Four days later, on January 19, 2010, more than eight

months after the deadline for amending the pleadings, and more than

four months after the deadline for completion of fact discovery,

plaintiffs moved the court for leave to file a second amended

complaint, asserting claims under Mass. Gen. Laws c.93A, § 2.

            Specifically, plaintiffs sought to add c.93A unfair and

deceptive act or practice claims for Trail King's alleged breach of

warranty as well as for certain post-delivery conduct.1            Defendant

opposed the motion for leave to amend, arguing that the amendment

was futile because it failed to state a claim upon which relief

could be granted.

            The district court, on March 2, 2010, denied plaintiffs'

motion for leave to amend, stating that "under the discovery

schedule amendments to the pleadings were due in May of 2009."



     1
       As to the post-delivery conduct, plaintiffs made four
allegations: (1) that defendant made no effort to recall or modify
the trailers despite notice that the trailers were unreasonably
hazardous to load or unload; (2) that defendant discouraged the
utilization of safety chains on existing trailers; (3) that
defendant failed to act upon a request by Advanced Drainage
Systems, Inc. ("ADS"), Hatch's employer, to determine if there were
any safety measures that could be taken to prevent the gates from
falling on drivers; and (4) that when ADS hired a new fleet
manager, Trail King did not advise him of past incidents of falling
gates or of his predecessor's request for an engineering
evaluation.

                                    -4-
             Plaintiffs      sought    reconsideration,       representing           that

"[t]he anticipated         amendment      would   simply    be   to    add     a    claim

pursuant to M.G.L. c.93A mirroring the existing warranty claims."

In their supporting memorandum of law, plaintiffs represented that

"because     the    93A    claim   will    essentially      rise      or    fall    with

Plaintiffs' claim for breach of warranty, the presence of the

additional claim will not impact in any way the parties' pending

motions for summary judgment."             Finally, in their renewed motion

for reconsideration, plaintiffs wrote that "the inclusion of a

theory pursuant to Chapter 93A will not change the trial or the

evidence in any material respect."                 The court denied both the

motion      for    reconsideration         and    the      renewed         motion    for

reconsideration.

             After being denied, plaintiffs filed a new action in

Massachusetts Superior Court on June 14, 2010.                       This complaint

asserted the exact same grounds for c.93A relief that had been set

forth in the proposed second amended complaint in the 2007 action:

that   as    a    matter   of   law,   Trail      King's    breach     of     warranty

constituted an unfair and deceptive act or practice, and that the

four post-sale actions or inactions by defendant did too.

             Defendants removed the case to federal court on diversity

grounds on July 12, 2010.          Trail King moved to dismiss the suit and

for a stay in the alternative.            The case was then transferred from

Springfield to Boston and was assigned to the same judge who was


                                          -5-
presiding over the 2007 action and who had denied the proposed

second amended complaint as untimely.          The district court then

stayed the c.93A action, on August 5, 2010, and reserved ruling on

defendant's motion to dismiss.       In opposing defendant's motion to

dismiss, plaintiffs expressly stated that they did not oppose the

granting of a stay.

          The 2007 action proceeded to a six-day jury trial.2           The

jury returned a verdict in favor of defendant, rejecting both the

negligence and breach of warranty claims, and the court entered

judgment for the defendant on September 14, 2010.

          Plaintiffs appealed the adverse verdict to this court.

Plaintiffs challenged certain jury instructions and a ruling on a

motion in limine, but not the trial court's denial of their motion

for leave to amend, and we affirmed on August 29, 2011.       Hatch, 656

F.3d at 59-61.

          As to the action filed in 2010, on March 1, 2012,

plaintiffs   moved   to   transfer   the   stayed c.93A   action   to   the



     2
       At trial, plaintiffs put on testimony related to the four
acts or omissions that they assert are post-sale conduct
constituting unfair or deceptive acts. They produced testimony as
to the failure to retrofit the trailers, Trail King's alleged
discouragement of ADS from retrofitting its trailers, the adequacy
of Trail King's response to ADS's request for an engineering
solution to the falling gates, and Trail King's alleged lack of
communication to ADS's new fleet manager about the safety history
of the gates.      Moreover, at oral argument in this appeal,
plaintiffs' counsel represented to this court that the evidence
presented in the jury trial was essentially the same evidence that
would be presented in the c.93A action.

                                     -6-
Springfield Division. The Boston district court denied the motion;

it also reinstated Trail King's motion to dismiss.                On April 11,

2012, the district court dismissed the case with prejudice, ruling

that:

            The court agrees with defendant Trail King
            that by filing a second and separate Chapter
            93A case in Superior Court, plaintiffs have
            engaged in impermissible claim-splitting.
            Further, although the court recognizes that a
            judge may reach a different result on a 93A
            claim than the jurys [sic] verdict on non-93A
            claims, here the issues tried to the jury and
            reached in favor of the defendant (and
            affirmed by the First Circuit) are identical
            to any meriting 93A consideration. The court,
            having heard the evidence in the jury trial,
            see [sic] no basis on which it could reach a
            different result. The case is dismissed with
            prejudice and the clerk will close the case.

This timely appeal followed.

                                        II.

            Plaintiffs present this case as being about whether a

separate c.93A action may be maintained after judgment had entered

on the earlier action on non-c.93A claims arising out of the same

transaction or occurrence.        They argue that the preclusive effect

of   the   decision   in   the   2007    action   is   to   be   determined   by

Massachusetts res judicata rules pursuant to the Supreme Court's

decision in Semtek, 531 U.S. 497.             From that premise, they base

their argument on Mass. Gen. Laws c.93A, § 9(8), which provides

that:

            Except as provided in section ten, recovering
            or failing to recover an award of damages or

                                        -7-
            other relief in any administrative or judicial
            proceeding, except proceedings authorized by
            this section, by any person entitled to bring
            an action under this section, shall not
            constitute a bar to, or limitation upon relief
            authorized by this section.

They argue this means that claims brought under § 9 are excluded

from the traditional rules of preclusion.                The Massachusetts

Supreme Judicial Court ("SJC") has not provided an interpretation

of this statutory provision.      See Anderson v. Phoenix Inv. Counsel

of Bos., Inc., 440 N.E.2d 1164, 1167 (Mass. 1982) (stating that the

SJC need not determine the modifying effect, if any, that the

provision    has   on   claim   preclusion      or   issue    preclusion).3

Plaintiffs do concede that c.93A, § 9(8) was passed as part of an

effort to    supersede   the    ruling    in   Gordon v.     Hardware   Mutual

Casualty Co., 281 N.E.2d 573 (Mass. 1972), which required the

exhaustion of administrative remedies as a condition of a § 9

claim, id. at 577; see Keen v. W. New Eng. Coll., 499 N.E.2d 310,

311 (Mass. App. Ct. 1986), but they argue § 9(8) has a broader

effect.

            The question before us is not whether a separate c.93A

claim that has never been raised in a motion to amend in an earlier

action can be maintained in a later separate action.             Rather, the

core question before us is whether plaintiffs may bring a second


     3
       One commentary states that the express language of the
statutory provision seems to permit a split court action, but that
it likely will be found not to abrogate the doctrines of claim
preclusion or issue preclusion. See 52 Mass. Prac. § 7.10.

                                    -8-
action asserting c.93A claims when they earlier sought leave to

amend their    complaint      to add       the    c.93A    claims,     the    proposed

amendment was denied as untimely, the underlying case proceeded to

a decision on the merits, the denial of leave to amend was not

appealed, and judgment was entered. We hold that under these facts

the doctrine of claim preclusion applies.                        That conclusion is

unaltered by the language of c.93A, § 9(8).

A.   Standard of Review and Choice of Law

           The parties dispute the standard of review that applies.

Plaintiffs    argue   that    we    should       review    the     district    court's

dismissal de novo.         See Andrew Robinson Int'l, Inc. v. Hartford

Fire Ins. Co., 547 F.3d 48, 51 (1st Cir. 2008) (applying de novo

review to a Rule 12(b)(6) dismissal on the ground that the suit was

foreclosed by principles of res judicata).                 Defendant urges us to

review the dismissal under an abuse of discretion standard, arguing

that such a standard would have applied had plaintiffs appealed the

denial of their motion for leave to amend, Interstate Litho Corp.

v. Brown, 255 F.3d 19, 25 (1st Cir. 2001), and pointing us to the

standard applied      in    the    Tenth    Circuit       when    a   district   court

dismissed on claim-splitting grounds.                See Katz v. Gerardi, 655

F.3d 1212, 1217 (10th Cir. 2011).            In our view, the first issue of

whether claim preclusion is available at all in this context

presents an issue of law subject to de novo review.                     The district




                                       -9-
court's decision to dismiss was within its authority and was

reasonable.

          We apply "the law that would be applied by state courts

in the State in which the federal diversity court sits," except

that "in situations in which the state law is incompatible with

federal interests," federal law applies.   Semtek, 531 U.S. at 508-

09.   The Supreme Court has imposed this rule because "any other

rule would produce the sort of 'forum-shopping . . . and . . .

inequitable administration of the laws' that Erie seeks to avoid."

Id. (alterations in original) (quoting Hanna v. Plumer, 380 U.S.

460, 468 (1965)).   We agree with a number of circuit courts who

have read Semtek as applying in successive diversity actions, as is

the case here.4


      4
       See, e.g., Duane Reade, Inc. v. St. Paul Fire & Marine Ins.
Co., 600 F.3d 190, 195 (2d Cir. 2010) (applying New York law to
govern the effect of a prior diversity judgment in a current
diversity action); Taco Bell Corp. v. TBWA Chait/Day Inc., 552 F.3d
1137, 1144 (9th Cir. 2009) (applying Michigan law in successive
diversity action); Prusky v. ReliaStar Life Ins. Co., 532 F.3d 252,
265 (3d Cir. 2008) (following a prior diversity action, "[t]here is
no dispute that Pennsylvania preclusion law governs in this
diversity action"); Allan Block Corp. v. Cnty. Materials Corp., 512
F.3d 912, 915 (7th Cir. 2008) (stating that in a successive
diversity action the question of whether res judicata precluded the
second action should be governed by state law); Weinberger v.
Tucker, 510 F.3d 486, 491 (4th Cir. 2007) (holding that Virginia
law controlled the preclusive effects of the first diversity
action); Follette v. Wal-Mart Stores, Inc., 41 F.3d 1234, 1237 (8th
Cir. 1994) (stating in a pre-Semtek case that the preclusive effect
of a prior diversity action must be measured in the present
diversity action by state law).      However, some circuits apply
federal res judicata principles in successive diversity actions.
See, e.g., Rabo Agrifinance, Inc. v. Terra XXI, Ltd., 583 F.3d 348,
353 (5th Cir. 2009); Rawe v. Liberty Mut. Fire Ins. Co., 462 F.3d

                               -10-
           There is no need to address whether Massachusetts law is

incompatible with federal interests under Semtek because under

either federal or Massachusetts law, the outcome is the same. This

case does not present the sort of problems that Erie, 304 U.S. 64,

sought to avoid.

           Defendant   relies   heavily   on   a   pre-Semtek   decision,

Anderson v. Phoenix Investment Counsel of Boston, Inc., 440 N.E.2d

1164 (Mass. 1982), to argue that Massachusetts would apply federal,

not state, claim preclusion law.          There, the SJC stated that

"[w]hen a State court is faced with the issue of determining the

preclusive effect of a Federal court's judgment, it is the Federal

law of res judicata which must be examined."       Id. at 1167.   The SJC

has applied that rule to federal diversity actions.       See Whitehall

Co. v. Barletta, 536 N.E.2d 333, 336 (Mass. 1989) (applying the

Anderson rule to an apparent diversity action).        However, the SJC

has not clarified the rule in light of Semtek, and it is unclear

that such a rule survives the Semtek decision.        We do not need to

resolve this question either.

B.   Applying Federal Law, the c.93A Claim is Claim Precluded

           If federal law were to apply, plaintiffs lose. Under the

federal law of claim preclusion, "a final judgment on the merits of



521, 528 (6th Cir. 2006). Our pre-Semtek cases applied federal law
to decide the preclusive effect of a prior diversity action. See
Johnson v. SCA Disposal Servs. of New Eng., Inc., 931 F.2d 970, 974
(1st Cir. 1991).

                                 -11-
an action precludes the parties or their privies from relitigating

claims that were raised or could have been raised in that action."

Apparel Art Int'l, Inc. v. Amertex Enters. Ltd., 48 F.3d 576, 583

(1st Cir. 1995).      Claim preclusion "relieve[s] parties of the cost

and vexation of multiple lawsuits, conserve[s] judicial resources,

and . . . encourage[s] reliance on adjudication." Breneman v. U.S.

ex rel. FAA, 381 F.3d 33, 38 (1st Cir. 2004) (alterations in

original) (quoting Allen v. McCurry, 449 U.S. 90, 94 (1980))

(internal quotation marks omitted). As the Restatement (Second) of

Judgments    §   19   comment   a    (1982),    says,   "[t]he    rule   that   a

defendant's judgment acts as a bar to a second action on the same

claim   is   based    largely   on    the    ground   that   fairness    to   the

defendant, and sound judicial administration, require that at some

point litigation over the particular controversy come to an end."

             The three elements of claim preclusion are: "(1) a final

judgment on the merits in an earlier proceeding, (2) sufficient

identicality between the causes of action asserted in the earlier

and later suits, and (3) sufficient identicality between the

parties in the two actions."         Breneman, 381 F.3d at 38 (quoting In

re Colonial Mortg. Bankers Corp., 324 F.3d 12, 16 (1st Cir. 2003))

(internal quotation marks omitted).

             It is axiomatic that "claim preclusion doctrine requires

[a party] to live with [its strategic] choices."                 Airframe Sys.,

Inc. v. Raytheon Co., 601 F.3d 9, 11 (1st Cir. 2010).                     Those


                                      -12-
strategic choices include whether to attempt to amend a complaint

and whether to appeal a denial of such an attempt.           When a party

chooses to move for leave to amend its complaint and then not to

appeal denial of that motion, the party "is not entitled to a

second opportunity [in a later action] to litigate [the] claim"

that the party sought to add.          Id. at 16.   Instead, the party's

"recourse [is] to appeal, not to start a new action."        Id.; Johnson

v. SCA Disposal Servs. of New Eng., Inc., 931 F.2d 970, 976 (1st

Cir. 1991) ("It is widely accepted that appeal is the plaintiff's

only recourse" where a motion to amend is denied as untimely).

              This is a well-accepted principle.         As described by

commentators,

              It appears well-settled . . . that claim
              preclusion bars a second action on the part
              excluded from the first action. This result
              is sound. The abstract theory that amendment
              should be freely allowed is widely honored in
              practice. There is likely to be good reason
              when the court that has control of the first
              action concludes that a party should not be
              allowed to advance matters so closely related
              to the action as to be part of a single claim.
              Unless the court can be persuaded to direct
              that denial of leave to amend is without
              prejudice to advancing the new matter in a
              separate action, preclusion should apply. Any
              error should be corrected by appeal in the
              first proceeding.


18   Wright    &   Miller,   Federal   Practice   and   Procedure   §   4412

(footnotes omitted).




                                   -13-
          A number of our sister circuits have so held.      "It is

well settled that denial of leave to amend constitutes res judicata

on the merits of the claims which were the subject of the proposed

amended pleading."   King v. Hoover Group, Inc., 958 F.2d 219, 222-

23 (8th Cir. 1992) (citing Carter v. Money Tree Co., 532 F.2d 113,

115 (8th Cir. 1976)).5

          Plaintiffs made a strategic decision to try to add the

c.93A claims more than eight months after the deadline for amending

the pleadings had passed, and four months after discovery had

closed, without notice to defendant during discovery that it faced

a c.93A claim.   They also made a strategic choice not to appeal the

district court's denial of their motion for leave to amend, even

though they could have.    Under federal law, they must live with

those choices, absent some strong countervailing interest, which is

not present here.    We discuss below why we think c.93A, § 9(8)

would not provide an exception.




     5
       See also Prof'l Mgmt. Assocs., Inc. v. KPMG LLP, 345 F.3d
1030, 1032 (8th Cir. 2003) (per curiam) (stating that res judicata
applies, "even when denial of leave to amend is based on reasons
other than the merits, such as timeliness"); EFCO Corp. v. U.W.
Marx, Inc., 124 F.3d 394, 399-400 (2d Cir. 1997) ("Where a
plaintiff's motion to amend its complaint in the first action is
denied, and plaintiff fails to appeal the denial, res judicata
applies to the claims sought to be added in the proposed amended
complaint."); Qualicare-Walsh, Inc. v. Ward, 947 F.2d 823, 826 (6th
Cir. 1991) (where judge denied request to amend complaint and
plaintiffs chose not to appeal, the judge's determination became a
final judgment and the doctrine of res judicata applied).

                                -14-
C.   Because of the Failure to Appeal the Denial of the Motion
     to Amend, the c.93A Claim Is Subject to Claim Preclusion
      Under Massachusetts Law

           As noted, there is no relevant SJC precedent on the

meaning of c.93A, § 9(8).   The SJC also has not directly answered

whether, generally, the failure to appeal the denial of leave to

amend, where the denial is on the grounds of untimeliness, and the

underlying case proceeds to a final judgment, subjects the claims

in the proposed amendment to later claim preclusion.   See Shahidi

v. Michael, No. 1624, 2005 WL 3294663, at *2 & n.5 (Mass. App. Div.

Nov. 22, 2005) (finding preclusion).    Where, as here, that court

has not spoken directly to an issue, "the federal court must make

an informed prophecy as to the state court's likely stance."

Andrew Robinson Int'l, 547 F.3d at 51. In completing that inquiry,

we look to analogous state court decisions, persuasive opinions

from courts of other jurisdictions,6 learned treatises, and any


      6
       Courts applying other states' laws have held that denial of
leave to amend constitutes a final judgment on the merits,
subjecting those claims to claim preclusion. See, e.g., Gonsalves
v. Bingel, 5 A.3d 768, 783 (Md. Ct. Spec. App. 2010) ("We agree
with the position of the authorities . . . that a plaintiff who is
denied leave to amend his or her complaint to add additional claims
. . . is nonetheless barred from raising those claims in a second
suit based on the same transaction or series of transactions as the
first."); Kaye v. S & S Tree Horticulture Specialists, Inc., No.
A08-1027, 2009 WL 1311808, at *3 (Minn. Ct. App. May 12, 2009)
(stating that the denial of a motion to amend is given res judicata
effect "even when denial of leave is based on procedural reasons
other than the merits of the case"); Bush v. Dictaphone Corp., No.
98AP-585, 1999 WL 178370, at *5 (Ohio Ct. App. Mar. 30, 1999) (per
curiam) (stating that "decisions on motions to amend typically are
res judicata to further action on the claims sought to be included
in the amended pleading," and that "[a] plaintiff will be bound by

                                -15-
relevant policy rationales. Id.; Blinzler v. Marriott Int'l, Inc.,

81 F.3d 1148, 1151 (1st Cir. 1996).

            Massachusetts law recognizes claim preclusion, which

"makes a valid final judgment conclusive on the parties . . . and

prevents relitigation of all matters that were or could have been

adjudicated in the action."           Andrew Robinson Int'l, 547 F.3d at 52

(alteration in original) (quoting Kobrin v. Bd. of Registration in

Med., 832 N.E.2d 628, 634 (Mass. 2005)) (internal quotations marks

omitted).        Its operation requires the same three elements as

federal law.      See Kobrin, 832 N.E.2d at 634 (listing the factors).

            We    have   little   doubt    that   the   SJC   would   adopt   the

conventional rule that normally a failure to appeal from a denial

of a motion to add a claim precludes the later assertion of such a

claim in a new action.        There are many reasons:         Massachusetts law

follows the Restatement and this is the Restatement result; the

application      of   basic   state    preclusion   principles     reaches    the

result; and, significantly, an older Massachusetts SJC precedent

virtually compels the conclusion.

            "Massachusetts courts apply res judicata in a thoroughly

conventional way," Andrew Robinson Int'l, 547 F.3d at 54, and they



that preclusive effect unless the denial is reversed on appeal");
see also Dall v. Goulet, 871 F. Supp. 518, 521 (D. Me. 1994)
(federal court holding that under state law, "[t]he Superior
Court's refusal to grant leave to amend has a preclusive effect on
Plaintiff's attempt to raise the identical claims in subsequent
litigation").

                                       -16-
follow the Restatement.          See, e.g., Bevilacqua v. Rodriguez, 955

N.E.2d    884,    898   (Mass.    2011)    (citing   to    section     11   of   the

Restatement (Second) of Judgments); Dep't of Revenue v. Jarvenpaa,

534 N.E.2d 286, 289 (Mass. 1989) (looking to section 20); Osserman

v. Jacobs, 339 N.E.2d 193, 196 (Mass. 1975) (looking to the current

section 19).

            According to the Restatement, "[i]ncreasingly . . . by

statute, rule, or court decision, judgments not passing directly on

the substance of the claim have come to operate as a bar," because

"fairness to the defendant, and sound judicial administration,

require    that    at   some     point    litigation      over   the   particular

controversy come to an end."              Restatement (Second) of Judgments

§ 19 cmt. a.       Claims can be precluded where a plaintiff was not

permitted to prove the claims during the first action because "they

were not alleged in the complaint and an application to amend the

complaint came too late."         Id. § 25 cmt. b.     That is the case here.

            Under Massachusetts law, the denial of the motion to

amend is a final judgment.               The parties were fully heard; the

district court provided a reasoned opinion, stating that it denied

leave to amend on the ground of untimeliness; and the decision was

appealable because the case proceeded to a judgment on the merits,

and it was in fact appealed.             See Tausevich v. Bd. of Appeals of

Stoughton, 521 N.E.2d 385, 387 (Mass. 1988).                 Also, there was a

dismissal on the merits.          Cf. Mass. R. Civ. P. 41(b)(3) (stating


                                         -17-
that, except for circumstances that do not exist here "a dismissal

under this subdivision (b) and any dismissal not provided for in

this rule, other than a dismissal for lack of jurisdiction, for

improper venue, or for failure to join a party under Rule 19 . . .

operates as an adjudication upon the merits").

            Significantly, older SJC precedent virtually compels our

conclusion.      In the context of demurrers, the SJC has held that the

pleading dismissed as defective bars a second action for the same

cause of action where "the plaintiff had been granted leave to

amend his earlier declaration and had neglected or refused to do

so."    Osserman, 339 N.E.2d at 195 (Kaplan, J.) (quoting Hacker v.

Beck, 91 N.E.2d 832, 834 (Mass. 1950)) (internal quotation mark

omitted).

            In    Osserman,   Justice    Kaplan    explained   that    where

plaintiffs have been given fair and ample opportunity to assert

their rights, they are not "allowed to spurn the opportunity,

suffer judgment, and, without testing the judgment by appeal, start

another action on the same cause."         Id.    Earlier cases were cited

to this effect.      See Elfman v. Glaser, 47 N.E.2d 925, 928 (Mass.

1943)    ("The    doctrine    of   res   judicata,    therefore,      applies

where . . . the plaintiff has had ample opportunity to state his

cause of action completely and correctly so as to have the issues

tried but has refused to embrace that opportunity."); Whitney v.

Whitney, 13 N.E.2d 401, 403 (Mass. 1938) (same). The SJC predicted


                                    -18-
that such reasoning "may gain added strength" under the modern

rules    of   procedure,   "which   allow   such   extensive   freedom   of

amendment that there is less reason than in earlier days for

recourse to successive actions on the same claim."7        Osserman, 339

N.E.2d at 196.     The same logic applies here, where plaintiffs were

given ample opportunity to amend their complaint8 but failed to

timely do so and did not appeal the denial.9

              This leaves the question of whether the SJC, in light of

the language of c.93A, § 9(8), would nonetheless deviate from

normal claim preclusion rules when there is a failure to appeal

from a denial of a motion to amend and the subject matter of that



     7
       We have applied similar logic to explain why the denial of
attempts to amend complaints to add additional claims should be
given preclusive effect.    See Johnson, 931 F.2d at 976 & n.19
(explaining that appeal is the only recourse when a motion to amend
is denied because "the unchallenged circumstances of a likely
ruling of res judicata would have been a powerful factor in favor
of reversal in view of F.R.Civ.P. Rule 15, which mandates that
'leave [to amend] shall be freely given when justice so requires.'"
(alteration in original) (quoting Fed. R. Civ. P. 15)).
     8
       Plaintiffs allege that the c.93A claims could not have been
included in the original action or added before expiration of the
time set for amendments. However, plaintiffs had access to the
information pertaining to the "post-sale conduct" months in advance
of the deadline to amend. Trail King served interrogatory answers
on plaintiffs on December 3, 2008, five months before the deadline
to amend, which addressed post-sale conduct.
     9
       The only Massachusetts lower court opinion we have found
agrees with our conclusion. See Shahidi v. Michael, No. 1624, 2005
WL 3294663, at *2 (Mass. App. Div. Nov. 22, 2005) (stating that
failure to appeal the denial of a motion to amend "was fatal"
because "the denial of a motion to amend to add a claim in the
first action must be challenged directly by way of appeal").

                                    -19-
motion is a c.93A claim.   We think that is not likely.   Normally,

the subject matter of a motion to amend is not relevant to the

reasons for application of res judicata.    See, e.g., Prof'l Mgmt.

Assocs., Inc. v. KPMG LLC, 345 F.3d 1030, 1032 (8th Cir. 2003) (per

curiam) (not looking to subject matter of proposed amendment in

analysis).

          We recognize that there may be statutory exceptions to

the normal rules of claim preclusion.      Restatement (Second) of

Judgments §§ 20, 26 (1982).10    But, in our view, under the plain

language of c.93A, § 9(8), the provision does not apply here.   The

"bar to" relief was not the outcome as to an award of damages in

the 2007 action.   See Mass. Gen. Laws ch. 93A, § 9(8) (stating that

"recovering or failing to recover an award of damages," except in

proceedings authorized by the section, "shall not constitute a bar

to" relief).   Rather, the bar to relief comes from the attempt to

amend to add a claim, regardless of the nature of the claim, and

the failure to have appealed the denial of leave to amend.      That


     10
        Section 20(1)(c) of the Restatement states that "(1) A
personal judgment for the defendant, although valid and final, does
not bar another action by the plaintiff on the same claim: . . .
(c) When by statute or rule of court the judgment does not operate
as a bar to another action on the same claim, or does not so
operate unless the court specifies, and no such specification is
made."   Restatement (Second) of Judgments § 20(1)(c).      Section
26(1)(d) states that the general rule against claim-splitting does
not apply when "[t]he judgment in the first action was plainly
inconsistent with the fair and equitable implementation of a
statutory or constitutional scheme, or it is the sense of the
scheme that the plaintiff should be permitted to split his claim."
Id. § 26(1)(d).

                                -20-
section of c.93A does not purport to address rules of courts or of

civil procedure about amendment of complaints.      There is no clear

statement from the legislature of an intent to abrogate the common

law rule in these circumstances.

          There is no support for plaintiffs' argument that this

case is like Department of Revenue v. Jarvenpaa, 534 N.E.2d 286,

and that some public policy exists to override the application of

traditional claim preclusion.      There, the SJC held that an action

by a minor child under Mass. Gen. Laws c.209C for child support was

not barred by an earlier action brought by the Commonwealth, in

which a jury found the defendant not guilty on paternity charges,

but that the Department of Revenue was barred.    Id. at 289-91.   The

court held that the legislature had intended in Mass. Gen. Laws

c.209C, § 22(d), to permit the child to readjudicate the issue of

paternity, and this was consonant with the general rule that the

minor child was not in privity with the state.    Id. at 289-90.   The

court found no issue was raised of "legislative intrusion into

judicial prerogatives."     Id. at 291.    By contrast, there is no

question of privity here because the plaintiffs are the same in

both actions.   Plaintiffs' position would not be consonant with

traditional norms as to claim-splitting.      Further, their position

would raise questions of intrusion into judicial prerogatives,

which the SJC explicitly noted in Jarvenpaa were both relevant and

not present in that case.    Id.    There was no error of law.


                                   -21-
           Nor was there any unfairness here.               The plaintiffs

themselves represented to the trial court that the c.93A claims

would essentially   depend     on   the    outcome   of   the    warranty    and

negligence claims. In fact, the plaintiffs told the court that the

proposed amendment "would simply be to add a claim pursuant to

M.G.L. c.93A mirroring the existing warranty claims" (emphasis

added), that "the 93A claim will essentially rise or fall with

Plaintiffs' claim for breach of warranty" (emphasis added), and

that "the inclusion of a theory pursuant to Chapter 93A will not

change the trial or the evidence in any material respect" (emphasis

added).

D.   Rejection of Plaintiffs' Argument that Trail King Acquiesced
     or Is Estopped

           Plaintiffs   make    a   final    argument     that    Trail     King

acquiesced to the separate 2010 action through its efforts to keep

the c.93A claims out of the 2007 action and that Trail King should

be estopped from asserting a defense based on preclusion.

           The argument is without merit and has been rejected in

our cases. We have affirmed a dismissal on grounds of res judicata

where a defendant had first opposed consolidation of two cases.

Diversified Foods, Inc. v. First Nat'l Bank of Bos., 985 F.2d 27,

31 (1st Cir. 1993) ("[W]hen a plaintiff has chosen to bring two

lawsuits in the same time frame relating to the same operative

facts, it is hard to see why the defendant should not be able to

resist consolidation on proper grounds, such as undue delay."); see

                                    -22-
also Smith v. Smith, No. 111386, 2011 WL 7090711, at *6 (Mass.

Super. Ct. Nov. 15, 2011) (rejecting, as without merit, an argument

that a court expressed an intent to allow separate actions when it

denied a motion to amend).   So too here.

          Likewise, any estoppel argument asserted against Trail

King fails.     Trail King's positions were not inconsistent, the

district court was not misled, and Trail King did not seek an

unfair advantage. See New Hampshire v. Maine, 532 U.S. 742, 750-51

(2001); see also Otis v. Arbella Mut. Ins. Co., 824 N.E.2d 23, 29

(Mass. 2005).

                               III.

          We stress that our decision does not address the question

of whether the language of c.93A, § 9(8) would have permitted the

filing of a new c.93A action following entry of judgment in the

2007 case if plaintiffs had not sought leave to amend.

          Nor do we address the district court's second ground --

that based on the evidence it heard at trial, which plaintiffs

identified as going as well to the c.93A claims, it would have

denied the c.93A claims in any event.

          Affirmed.




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