                                                                                FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                                 TENTH CIRCUIT                            August 21, 2015
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
PATRIOT MANUFACTURING, LLC,

      Plaintiff - Appellant,

v.                                                         No. 14-3232
                                                 (D.C. No. 6:10-CV-01206-EFM)
HARTWIG, INC.,                                              (D. Kan.)

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before KELLY, BALDOCK, and GORSUCH, Circuit Judges.
                  _________________________________

      Some years ago Patriot Manufacturing bought a machine shop lathe from

Hartwig with hope of producing goods for the aircraft industry. But the deal soon

turned sour and Hartwig repossessed the lathe, claiming that Patriot had defaulted on

its payment obligations under the parties’ sales contract. Sure that Hartwig had

breached the same agreement and that it had committed more than a few torts along

the way, Mark Spencer — Patriot’s owner and sole member — filed this federal

lawsuit.

      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      As Hartwig soon discovered, though, the positions Mr. Spencer advanced in

his federal district court complaint were arguably inconsistent with the

representations he made before a federal bankruptcy court just a few days earlier.

Right before filing this lawsuit, Mr. Spencer sought Chapter 7 bankruptcy protection

— a move that eventually won him a discharge of substantial debts. But in his initial

bankruptcy filings, Mr. Spencer expressly denied being an officer, director, or partner

of any company. In fact, he denied having any interest in any business at all.

      Seeking to hold Mr. Spencer accountable for his earlier statements disclaiming

any business interests, Hartwig moved for summary judgment in this case on the

theory that Patriot and its sole proprietor should be estopped from vindicating

contract and tort claims that, Hartwig argued, existed before Mr. Spencer’s

bankruptcy and should have been — along with his ownership of the company —

disclosed to the bankruptcy court. See New Hampshire v. Maine, 532 U.S. 742, 749

(2001) (explaining that judicial estoppel “‘generally prevents a party from prevailing

in one phase of a case on an argument and then relying on a contradictory argument

to prevail in another phase’”) (quoting Pegram v. Herdrich, 530 U.S. 211, 227 n.8

(2000)). The district court agreed and entered judgment for Hartwig.

      Patriot now asks us to reverse the district court, contending that the bankruptcy

court was never really deceived by Mr. Spencer’s arguably incomplete filings. See

Eastman v. Union Pac. R.R. Co., 493 F.3d 1151, 1156 (10th Cir. 2007) (explaining

that we generally “inquire whether the suspect party succeeded in persuading a court

to accept that party’s former position” before applying judicial estoppel). And

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arguing that Mr. Spencer won’t gain any sort of “unfair advantage” if Patriot is

allowed to proceed with this lawsuit. See id. (noting that we usually “inquire

whether the party seeking to assert an inconsistent position would gain an unfair

advantage in the litigation if not estopped”).

       But whatever the merits of these arguments Patriot failed to make them when

responding to Hartwig’s motion for summary judgment in district court and has,

accordingly, forfeited the chance to win reversal using them in this court. See Adler

v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998). Instead of arguing to the

district court that estoppel was unwarranted under our case law or suggesting that

estoppel would confer no unfair advantage, Patriot made entirely different (and mostly

inapplicable) arguments under Kansas state law — arguments the company has since

abandoned in this appeal. Neither, for that matter, has Patriot attempted in either of its

briefs on appeal to show that the district court committed plain error in failing to

recognize and develop for the company the arguments it now wishes to develop for itself

in this court for the first time. And faced as we are only with arguments that weren’t

raised below, and lacking any accompanying explanation how the district court’s alleged

error might have been so severe as to nonetheless require correction as plain error, we

decline to disturb its judgment. See Richison v. Ernest Grp., Inc., 634 F.3d 1123,

1127-28 (10th Cir. 2011).




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Affirmed.

            ENTERED FOR THE COURT



            Neil M. Gorsuch
            Circuit Judge




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