                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                        MAR 17 2004
                             FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    WEIS BUILDERS, INC.,
    a Minnesota corporation,

                Plaintiff-Appellee,

    v.                                                 No. 02-1554
                                             (D.C. No. 02-WY-965-AJ (OES))
    KAY S. BROWN LIVING TRUST,                          (D. Colo.)
    a Colorado Trust; RYAN S. BROWN
    TRUST, a Colorado Trust,

                Defendants-Appellants,

    and

    LICHTENFELS, PANSING &
    MILLER, P.C., a Colorado
    professional corporation,

                Defendant.


                               ORDER AND JUDGMENT       *




Before McCONNELL , ANDERSON , and BALDOCK , Circuit Judges.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.


                                            I.

      Defendants-appellants Kay Brown Living Trust and Ryan S. Brown Trust

(the “Trusts”) commenced an arbitration proceeding relating to a purported

construction contract with plaintiff-appellee Weis Builders, Inc. (“Weis”). Weis

then filed a complaint in federal district court, based on diversity jurisdiction,

seeking a declaratory judgment that there was no contract between the parties.

Weis contended the Trusts had fraudulently induced Weis’ signature on the

contract by altering material terms in the final draft of the contract and failing to

disclose this alteration to Weis. Weis also requested that the district court stay

the arbitration proceeding pending the court’s determination whether the parties

had entered into a contract.

      The Trusts moved to dismiss the complaint, arguing the      Rooker-Feldman

doctrine deprived the district court of subject matter jurisdiction. This doctrine,

which takes its name from    District of Columbia Court of Appeals v. Feldman     ,

460 U.S. 462 (1983) and     Rooker v. Fidelity Trust Co. , 263 U.S. 413 (1923),

“generally prohibits lower federal courts from hearing federal claims requiring

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direct review of final state court judgments.”       Kiowa Indian Tribe of Okla. v.

Hoover , 150 F.3d 1163, 1165 (10th Cir. 1998). In a published opinion, the

district court denied the Trusts’    Rooker-Feldman motion to dismiss and granted

Weis’ motion to stay arbitration pending its resolution of whether the parties

had entered into a contract.    Weis Builders, Inc. v. Kay S. Brown Living Trust,

236 F. Supp. 2d 1197, 1202, 1204 (D. Colo. 2002). The Trusts appeal,

challenging only the ruling that the     Rooker-Feldman doctrine did not apply so

as to deprive the district court of subject matter jurisdiction.       1



       Weis has filed a motion to dismiss this appeal, arguing that the district

court’s order is interlocutory and, therefore, not immediately appealable. “Under

9 U.S.C. § 16(a)(2) of the Federal Arbitration Act, an interlocutory order granting

an injunction against an arbitration that is subject to the Act is considered ‘final’

at least for the purposes of appeal.”      Stifel, Nicolaus & Co. v. Woolsey & Co.,

81 F.3d 1540, 1545 n.1 (10th Cir. 1996). “Congress intended to promote appeals

from orders barring arbitration and limit appeals from orders directing

arbitration.”   Adair Bus Sales, Inc. v. Blue Bird Corp.,          25 F.3d 953, 955 (10th Cir.



1
       The Trusts’ opening brief focuses exclusively on the    Rooker-Feldman
question of jurisdiction and does not advance any argument, other than lack of
jurisdiction, why the district court erred in granting the stay of arbitration.
“Issues not raised in the opening brief are deemed abandoned or waived.”
Tran v. Trs. of State Colls. in Colo. , 355 F.3d 1263, 1266 (10th Cir. 2004)
(quotation omitted).

                                              -3-
1994) (quotation omitted). Weis argues that the district court’s order does not fall

within § 16(a) because it simply stays arbitration pending the “prompt resolution”

of the contract dispute. Weis’ Motion to Dismiss Appeal, dated January 6, 2003,

at 8. We disagree. Although the order is “temporary in nature, it is an order that

favors litigation over arbitration and is immediately appealable under § 16(a).”

McLaughlin Gormley King Co. v. Terminix Int’l Co.       , 105 F.3d 1192, 1193

(8th Cir. 1997) (quotations omitted);    see also KKW Enters., Inc. v. Gloria Jean’s

Gourmet Coffees Franchising Corp.       , 184 F.3d 42, 47 (1st Cir. 1999) (“The

district court’s orders stayed a pending arbitration proceeding and are

immediately appealable.”). We conclude, therefore, that we have jurisdiction

to hear this appeal.


                                            II.

       Weis, a commercial construction general contractor, entered into

negotiations with the Trusts, real estate developers, to build a hotel in Glendale,

Colorado. The proposed contract consisted of the standard “General Conditions

of the Contract for Construction” contract published by the American Institute of

Architects (AIA), together with a lengthy attachment, referred to as Exhibit A,

which addressed matters specific to the proposed hotel project that were not

covered by, or differed from, the form contract. Included in the standard AIA



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contract was a provision requiring arbitration of claims arising out of or related to

the contract.

      Weis contends that while the final draft of the contract was

in the possession of the Trusts, the Trusts unilaterally made material

price-and-performance-related alterations to Exhibit A, signed the contract on

behalf of the Trusts and returned it to Weis for its signature without discussing,

marking or otherwise notifying Weis of the material alterations made to

Exhibit A. Weis signed the contract without discovering these alterations, which

it contends had never been discussed or agreed to. When Weis discovered the

alterations in Exhibit A one month later, sometime at the end of March 2000,

it refused to proceed with the hotel construction project. The Trusts then

developed the hotel property with a different contractor.

      Before Weis discovered the contract discrepancies, the Trusts sent a letter

to Weis on March 17, 2000, requesting Weis to pay for and obtain a building

permit from the city of Glendale for the hotel project and to submit a bill to the

Trusts for reimbursement of the fee. Weis sent Glendale a check for $31,369.06.

Because the Trusts did not later reimburse Weis for the building permit fee,

Weis filed a mechanic’s lien against the Trusts’ hotel property.

      In September 2000, Weis applied to Glendale for a refund of the building

permit fee. Because both Weis and the Trusts claimed entitlement to the refund,


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Glendale filed an interpleader action (the “Interpleader Action”) in Colorado state

court requesting that court determine to whom it should refund the fee. Weis

filed a cross-claim against the Trusts in the Interpleader Action seeking

reimbursement of the building permit fee. The Trusts filed a motion to stay the

Interpleader Action and to compel arbitration of the dispute. The Trusts recited

what it claimed to be an excerpt of the arbitration provision from the purported

construction contract; however the recited provision differed significantly from

the actual arbitration provision contained in that document.   Compare Aplt. App.

Vol. I, at 135, with Aplt. App. Vol. II, at 248. Weis responded that payment of

the building permit fee was not addressed or governed by any provision in the

purported construction contract, but rather was based on the separate March 17,

2000 letter. The state court entered a summary order submitting the dispute to

arbitration.

       In May 2001, TBL Excavating, a subcontractor working on the hotel

project, brought a mechanic’s lien foreclosure action in Colorado state court

against the Trusts for nonpayment of labor and materials costs (the “TBL

Action”). TBL Excavating named Weis as a defendant because Weis was a prior

lien claimant of record. Weis filed a cross-claim against the Trusts asserting its

prior lien. The Trusts filed a motion to dismiss Weis’ cross-claim, arguing it was

subject to arbitration. The TBL Action was heard in the same court, before the


                                            -6-
same judge, as the Interpleader Action, and the state court again entered an order,

in August 2002, staying Weis’ cross-claim pending arbitration.

       In March 2002, the Trusts filed a demand for arbitration of the purported

construction contract against Weis with the American Arbitration Association,

claiming $1,423,000 in damages due to delay and increased costs caused by Weis’

refusal to proceed with construction of the hotel. The Trusts’ arbitration

complaint did not mention or seek to arbitrate the issues raised in either the

Interpleader Action or the TBL Action.           See Aplt. App. Vol. II, at 185-89.

Weis then filed the instant declaratory judgment action in federal court, claiming

there was never a valid construction contract between the parties.


                                             III.

       The Trusts contend Weis’ complaint in federal district court seeks to

overturn the state court orders submitting the Interpleader Action and the TBL

Action to arbitration, and, therefore, that the district court lacked jurisdiction over

Weis’ complaint under the     Rooker-Feldman doctrine. For substantially the

reasons stated by the district court, we agree that the      Rooker-Feldman doctrine

does not apply because these state court orders are separable from and collateral

to the federal complaint, and the federal court is not being asked to sit in

appellate review of either state court ruling.       Weis , 236 F. Supp. 2d at 1200-02.



                                             -7-
       The Rooker-Feldman doctrine precludes a party who has lost a case in state

court “from seeking what in substance would be appellate review of a state

judgment” in federal district court.     Kenmen Eng’g v. City of Union , 314 F.3d

468, 473 (10th Cir. 2002) (quotations omitted). “The Supreme Court has applied

the Rooker-Feldman jurisdictional bar to two categories of claims, those

(1) actually decided by a state court, or (2) ‘inextricably intertwined’ with a state

court judgment.”      Pittsburgh County Rural Water Dist. No. 7 v. City of McAlester,

358 F.3d 694, 707 (10th Cir. 2004) (citations omitted). “This prohibition extends

to all state-court decisions -- final or otherwise.”   Kenmen , 314 F.3d at 475.

       There are, however, significant limitations on the scope of the doctrine.

“If the purpose of a federal action is separable from and collateral to a state court

judgment, then the claim is not ‘inextricably intertwined’ merely because the

action necessitates some consideration of the merits of the state court judgment.”

Kiowa , 150 F.3d at 1170 (quotation omitted). We have cautioned that “Supreme

Court jurisprudence . . . compel[s] a narrow reading of the ‘inextricably

intertwined’ test.”    Id. at 1169.

       Determining whether a federal claim is “inextricably intertwined” with the

state court judgment may be difficult. “Although it is difficult to formulate

a foolproof test, in general we must ask ‘whether the injury alleged by the federal

plaintiff resulted from the state court judgment itself or is distinct from that


                                              -8-
judgment.’” Kenmen , 314 F.3d at 476 (quoting          Garry v. Geils , 82 F.3d 1362,

1365 (7th Cir. 1996)). If “the state court judgment        caused , actually and

proximately, the injury for which the federal court plaintiff seeks       redress, . . .

Rooker-Feldman deprives the federal court of jurisdiction.”          Id. (footnote

omitted). “In conducting this analysis, we must pay close attention to the           relief

sought by the federal-court plaintiff; we cannot simply compare the          issues

involved in the state-court proceeding to those raised in the federal-court

plaintiff’s complaint.”   Id.

       Applying these principles, we conclude that the federal district court

complaint does not constitute an improper collateral attack on the state court

orders. The issue before the state court in the Interpleader Action is whether

Weis is entitled to a refund of the building permit fee, which obligation arose

from a separate letter request dated after the purported construction contract was

signed. The issue before the court in the TBL Action is whether Weis established

a proper lien against the Trusts’ property with respect to that permit fee. The

court in the TBL Action did not order arbitration in that case until after Weis

had filed its complaint in federal court.       See Weis , 236 F. Supp. 2d at 1200

(noting that Weis could not be seeking review of the order in the TBL Action

because the federal action was filed        before the state court ruled). The state court




                                                -9-
ordered arbitration of the permit fee dispute; it did not, however, order arbitration

of the construction contract dispute.

      Weis’ federal court complaint does not mention, or in any way seek redress

from, the state court orders submitting either the Interpleader Action or the TBL

Action to arbitration. Weis has represented in its pleadings that it is willing to

arbitrate the Interpleader Action and the TBL Action, Aplee. Br. at 19; Aplt.

App., Vol. II at 147, and presumably would be judicially estopped from taking

a contrary position in the Interpleader Action or the TBL Action.    See Estate of

Burford v. Burford , 935 P.2d 943, 947-48 (Colo. 1997) (describing Colorado’s

judicial estoppel doctrine). Weis   is seeking to stay the arbitration proceedings

relating to the purported construction contract, which the Trusts commenced in

March 2002, but the Trusts’ arbitration demand makes no mention of either the

Interpleader Action or the TBL Action.

      The Trusts do not dispute Weis’ contention that the purported construction

contract does not include any requirement or provision regarding an obligation by

Weis to pay the building permit fee. Although the Trusts argued to the state court

that the building fee and lien disputes were subject to arbitration under the

purported construction contract, the Trusts did not then, and do not now, point to

any provision of that document that relates to the permit fee dispute, nor can we

find any such provision in that document. Most notably, the excerpt of the


                                           -10-
purported arbitration provision that the Trusts recited to the state court as support

for its arbitration request is clearly not the arbitration provision contained in the

purported construction contract; the language is significantly, even materially,

different.

      In the Interpleader Action, the state court simply ordered arbitration of the

dispute without mention of any arbitration agreement; in the TBL Action it stated

the parties had agreed to arbitration, but made no mention of the purported

construction contract. Clearly, “[t]he state court could not have made a

determination regarding the validity of the [construction] contract without some

discovery and factual development,”    Weis , 236 F. Supp. 2d at 1201 n.3, yet, the

state court ordered arbitration without permitting any discovery, conducting any

hearing, or articulating on what basis it was ordering arbitration. We cannot,

on the record before us, conclude that the state court based its arbitration orders

on the purported construction contract. In short, the state court did not actually

decide the issue presented by Weis in the federal court action, namely, whether

the purported construction contract was fraudulently induced and therefore void.

      Thus, Weis is not seeking review of the matters decided by the state court,

and the Trusts have not demonstrated that the question of whether there is a valid

construction contract between the parties is “inextricably intertwined” with the

merits of the Interpleader Action, the TBL Action, or the state court orders in


                                          -11-
those proceedings submitting those disputes to arbitration. We conclude the

district court correctly ruled that Weis’ claims in the federal action “are separate,

distinct, and collateral to any issues previously litigated between the parties”

in state court, and, therefore, that the   Rooker-Feldman doctrine is inapplicable.

Weis , 236 F. Supp. 2d at 1202.

       Accordingly, the motion to dismiss is DENIED; the judgment of the district

court is AFFIRMED.


                                                        Entered for the Court



                                                        Stephen H. Anderson
                                                        Circuit Judge




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