16-2726-cv
Adecco USA, Inc. v. Columbia Forest Products, Inc.

                                   UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                          SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 5th day of June, two thousand seventeen.

PRESENT:            JON O. NEWMAN,
                    JOSÉ A. CABRANES,
                    GERARD E. LYNCH,
                                 Circuit Judges.


ADECCO USA, INC.,

                              Plaintiff-Appellant,                 16-2726-cv

                              v.

COLUMBIA FOREST PRODUCTS, INC.,

                              Defendant-Appellee.


FOR PLAINTIFF-APPELLANT:                                 ALAN J. PIERCE, Hancock Estabrook LLP,
                                                         Syracuse, NY (Karl C. Anderson,
                                                         Anderson & Eaton, P.C., Rutland, VT, on
                                                         the brief).

FOR DEFENDANT-APPELLEE:                                  MICHAEL T. GARONE, Schwabe,
                                                         Williamson & Wyatt, PC, Portland, OR
                                                         (Thomas E. McCormick, McCormick,
                                                         Fitzpatrick, Kasper & Burchard, P.C.,
                                                         Burlington, VT, on the brief).


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        Appeal from a judgment of the United States District Court for the District of Vermont
(William K Sessions III, Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is
AFFIRMED.

        Plaintiff-appellant Adecco USA, Inc. (“Adecco”), a temporary staffing agency, appeals from
a decision of the District Court granting summary judgment to defendant-appellant Columbia Forest
Products, Inc. (“CFP”), a national manufacturer of plywood and veneer. Adecco brought a single
breach of contract claim against CFP seeking indemnification from CFP for expenses incurred as a
result of an ongoing workers’ compensation claim. The parties submitted cross-motions for
summary judgment pursuant to Federal Rule of Civil Procedure 56. On July 8, 2016, the District
Court granted CFP’s motion and denied Adecco’s motion. We assume the parties’ familiarity with
the underlying facts, the procedural history of the case, and the issues on appeal.

         In the proceedings below, Adecco relied solely on language in its contract that CFP was
“responsible for the supervision and safety of [Adecco] Associates” to support its claim. JA23. On
appeal, Adecco now relies on the next sentence in the contract, which states that CFP agrees to
“defend and hold [Adecco] harmless” from “the risks of allowing [Adecco] Associates to . . . operate
motor vehicles or equipment.” Id. Adecco argues that the employee in question was injured while
operating “equipment,” and that, accordingly, the “hold harmless” provision of the contract
indemnifies Adecco with respect to the employee’s workers’ compensation claim. Adecco concedes
that it did not argue below that this “hold harmless” clause applied to this case, nor did it argue that
the injured employee was operating “equipment.”

         “[I]t is a well-established general rule that an appellate court will not consider an issue raised
for the first time on appeal.” Moll v. Telesector Res. Grp., Inc., 760 F.3d 198, 204 (2d Cir. 2014) (internal
quotation marks omitted). This waiver doctrine is prudential, however, and we may exercise
discretion to address an issue not raised before the District Court. Davis v. Shah, 821 F.3d 231, 246
(2d Cir. 2016). “[T]he circumstances normally do not militate in favor of an exercise of discretion to
address new arguments on appeal where those arguments were available to the parties below and
they proffer no reason for their failure to raise the arguments below.” Bogle–Assegai v. Connecticut, 470
F.3d 498, 504 (2d Cir. 2006) (internal quotation marks and alterations omitted). We are most likely
to exercise our discretion, however, “(1) where consideration of the issue is necessary to avoid
manifest injustice, or (2) where the issue is purely legal and there is no need for additional fact-
finding.” Davis, 821 F.3d at 246 (internal quotation marks omitted).

        Under the circumstances of this case, we decline to consider Adecco’s “hold harmless”
clause arguments. Adecco offers no reason for its failure to present these arguments to the District
Court, but rather blames its trial counsel for “simply miss[ing]” them. Appellant’s Reply Br. 15.

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Moreover, additional factual development would be necessary to consider Adecco’s arguments, and
no manifest injustice will result from declining to consider them.

                                       CONCLUSION

       We have reviewed all of the arguments raised by Adecco on appeal and find them to be
without merit. For the foregoing reasons, we AFFIRM the July 8, 2016 judgment of the District
Court.


                                                    FOR THE COURT:
                                                    Catherine O’Hagan Wolfe, Clerk




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