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

                                     TENTH CIRCUIT                              May 29, 2015

                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court

    ERIC WALKER; SHANNON WALKER,

          Plaintiffs - Appellees,

    v.                                                         No. 12-6261
                                                             (W.D. Oklahoma)
    BUILDDIRECT.COM                                     (D.C. No. 5:11-CV-00800-D)
    TECHNOLOGIES, INC.,

          Defendant - Appellant.




                                ORDER AND JUDGMENT*


Before, HARTZ, MCKAY, and MATHESON, Circuit Judges.



         The essentials of this case have previously been set forth in our request to the

Supreme Court of Oklahoma to accept a certified question of Oklahoma law, see Walker

v. BuildDirect.com Technologies, Inc., 733 F.3d 1001 (10th Cir. 2013), and the opinion

of that court answering the certified question, see Walker v. BuildDirect.com


*
 This order and judgment is not binding precedent, except under the doctrines of law of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.
Technologies, Inc., No. 112075, 2015 WL 2074964 (Okla. May 5, 2015). Therefore, our

discussion can be brief.

       The Walkers sued BuildDirect in the United States District Court for the Western

District of Oklahoma on several causes of action seeking damages for the alleged

delivery of flooring infested with wood-boring insects. BuildDirect moved to compel

arbitration, invoking the arbitration provision in a document available on its website. The

district court denied the motion to compel, and BuildDirect appealed to this court.

Uncertain whether under Oklahoma law the Walkers were bound by the provisions of the

website document, we certified the question to the Oklahoma Supreme Court. That court

has now informed us that the Walkers were not bound by the provisions. If the Walkers

are not bound, then BuildDirect cannot compel arbitration and the district court’s order

denying the motion to compel must be affirmed.

       Upon receipt of the Oklahoma decision we requested responses from the parties

regarding how we should proceed. BuildDirect argues that the decision does not resolve

this appeal, because its contract with the Walkers is governed by the Oklahoma Uniform

Commercial Code and the decision did not address the application of the UCC to the

contract. This argument comes too late. BuildDirect’s precertification briefs to this court

made no reference to the UCC. Any argument based on that statute is therefore waived.

The decision of the Oklahoma Supreme Court resolves this appeal.




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       We AFFIRM the district court’s decision denying BuildDirect’s motion to compel

arbitration.

                                       ENTERED FOR THE COURT



                                       Harris L Hartz
                                       Circuit Judge




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