                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                     UNITED STATES COURT OF APPEALS March 22, 2012

                            FOR THE TENTH CIRCUIT               Elisabeth A. Shumaker
                                                                    Clerk of Court


    EVERPLAY INSTALLATION INC.,
    and ROLF HUBER,

                Plaintiffs-Appellants,                    No. 11-1253
                                              (D.C. No. 1:08-CV-00824-PAB-CBS)
    v.                                                     (D. Colo.)

    ROGER JOSEPH GUINDON,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before TYMKOVICH and BALDOCK, Circuit Judges, and BRORBY, Senior
Circuit Judge.



         Everplay Installation, Inc. (Everplay) and Rolf Huber filed an action

against Roger Joseph Guindon in district court in April 2008. Plaintiffs sought to

enforce a 2003 arbitration award and various orders and judgments stemming

from the arbitration proceedings that were entered by courts in Ontario, Canada,


*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
between July 10, 1998, and November 22, 2007. Plaintiffs petitioned for

enforcement of the arbitration award under the 1958 Convention on the

Recognition and Enforcement of Arbitral Awards, codified in Chapter 2 of the

Federal Arbitration Act. See June 10, 1958, 21 U.S.T. 2517 (1970); 9 U.S.C.

§§ 201-08. They also sought to enforce the various Canadian court orders and

judgments as a matter of comity and under the Colorado Uniform Foreign

Money-Judgments Recognition Act (Recognition Act), Colo. Rev. Stat.

§§ 13-62-101 to 13-62-109 (2007). Guindon contended that Plaintiffs’ claims

were barred by the applicable statutes of limitations. In response, Plaintiffs

maintained that the statutes should be equitably tolled based on Guindon’s

wrongful conduct.

      Following a bench trial, the district court ruled that Plaintiffs did not bring

their claims with respect to any of the pre-2007 orders within the applicable

limitations periods and failed to show entitlement to equitable tolling. The court

also ruled on due process grounds that the 2007 order was unenforceable against

Guindon. Plaintiffs appeal from the district court’s judgment in favor of

Guindon. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm for

substantially the same reasons articulated by the district court in its oral ruling on

May 25, 2011.




                                         -2-
                        District Court’s Findings of Fact

      Huber, Guindon, and a third party incorporated Everplay in 1993. The

articles of incorporation included an arbitration agreement. A dispute arose and

Plaintiffs invoked the arbitration provision in 1998. The arbitrator issued an

interim award in 1998 precluding Guindon from competing with Plaintiffs during

the pendency of the arbitration. In 2003, the arbitrator issued an award in favor

of Plaintiffs, requiring Guindon to pay Plaintiffs’ costs and attorneys’ fees, but

not awarding damages. An Ontario court entered an order enforcing the 2003

arbitration award in 2007. During the pendency of the arbitration proceedings,

Plaintiffs obtained several other court orders against Guindon, awarding them

additional costs and attorneys’ fees.

      Guindon declared bankruptcy in the fall of 1998. Plaintiffs filed a proof of

claim in the bankruptcy estate for $21,066.30, representing the fee and cost

awards entered by the Ontario court in July and August 1998. Plaintiffs also

claimed that Guindon’s transfer of his home to his wife in 1997 was a fraudulent

conveyance. In connection with that claim, Guindon’s wife ultimately deposited

one half of the proceeds of the sale of the home into the court registry.

      After filing for bankruptcy, Guindon unsuccessfully sought employment in

Canada for several years. In early 2000, he took a job for approximately nine

months in the Dominican Republic. On August 23, 2000, Guindon faxed a letter

to his counsel in the fraudulent conveyance action, indicating that he could be

                                         -3-
reached at an address on Strathmore Crescent in Pickering, Ontario, but that he

would soon be leaving Canada to work in Colorado. He stated to his counsel, “I

no longer reside here and I am telling [my wife] not to accept anything on my

behalf. . . . Maybe we should do the same with you, or is this advisable?” Aplt.

App., Vol. II at 516 (quotations omitted). Guindon told his attorney “he did not

want [Plaintiffs] to know where he was working and for what company because

they had previously distributed a copy of the injunction at a trade show and they

may very well try [to] do that with my new employer.” Id. at 516-17 (quotations

omitted). He provided no forwarding address to Plaintiffs, the Ontario courts, or

the arbitrator.

       Guindon’s wife continued to reside at the Strathmore Crescent address,

during which time she refused to accept service for him. The district court found

not credible her testimony that she did so because she had no address for Guindon

to which she could send the papers. To the contrary, the court concluded that her

conduct was consistent with Guindon’s instruction that she not accept service of

process. The district court found that, as of August 2000, Guindon and his wife

were actively avoiding service of process upon him at the Strathmore Crescent

address.

       Notwithstanding Guindon’s representation to his counsel in August 2000

that he would soon be moving to Colorado, the parties stipulated that he did not

actually move to Colorado until May 2001. On May 30, 2001, Guindon’s

                                        -4-
attorney moved to withdraw as his counsel in the fraudulent conveyance action.

Counsel’s motion attached a copy of Guindon’s August 23, 2000, letter. The

district court found that Plaintiffs received service of the motion to withdraw and

thus became aware at that time of Guindon’s stated plan to relocate to Colorado. 1

Despite that knowledge, Plaintiffs continued to try serve him with documents

related to the arbitration proceedings at the Strathmore Crescent address.

Plaintiffs’ mailings to that address were returned to them with notations that

Guindon had moved.

      After he relocated to Colorado, Guindon initially worked for Southwest

Recreational Industries, Inc. (Southwest). Although his job duties did not violate

the terms of a non-compete agreement with Plaintiffs, Guindon did not want

Plaintiffs to know about his new employer because he remained concerned that he

might lose his job if they accused the company of violating the non-compete.

      Guindon testified that he had no permanent address in Colorado for over a

year, as he traveled extensively for work and otherwise lived at inexpensive

motels in Colorado. Guindon’s expert witness, a private investigator hired to

illustrate the ease with which Guindon’s whereabouts could have been


1
      Guindon also received service of the motion (through unknown means), and
he sent a letter to the court on June 20, 2001, stating that he had moved from the
Strathmore Crescent address to Colorado. He advised the court he had no
permanent address in Colorado, providing only a telephone number at which he
could be reached. No evidence indicated that Plaintiffs received Guindon’s
June 20, 2001, letter before filing their action in 2008.

                                         -5-
determined, confirmed that Guindon had a mailing address in Colorado as of

April 2002. Guindon also used his real name to enter into leases and purchase

property in Colorado, and to obtain a Colorado driver’s license and a Social

Security number.

      As of August 2002, the total amount of Plaintiffs’ court orders against

Guindon for costs and attorneys’ fees was less than the amount of money

deposited by Guindon’s wife into the court registry.

      Guindon was laid off by Southwest in the spring of 2003. At about that

time he began using the name J.R. Gilles in his business dealings. He testified,

and the court found, that Plaintiffs were aware as early as 2000 that Guindon had

used this alias. The district court did not find Guindon’s explanation for using

this name to be wholly credible. Guindon’s wife moved to Colorado in late 2002

or early 2003. She did not provide a forwarding address to the post office. There

was no evidence, however, that Guindon’s wife used any name other than her own

after moving to Colorado.

      Huber testified that he thought Guindon was living and working in Canada.

He said that his attorney set up an electronic search filter to identify if Guindon’s

name appeared in any publications. He also claimed he made ongoing inquiries

regarding Guindon’s whereabouts, but the only example he provided was asking

two attendees about Guindon at a trade conference in Florida in 2005 or 2006.

Both men told Huber that they did not know where Guindon was, and one of

                                          -6-
them, who lived in Colorado, indicated that Guindon certainly was not in

Colorado. The district court noted that, despite Huber’s claim he thought

Guindon remained in Canada, his inquiries in Florida indicated that Huber may

have believed Guindon was in the United States. The court found that, other than

these inquiries at the Florida trade conference, Plaintiffs made no effort to locate

Guindon in Colorado or anywhere else in the United States. This was despite the

fact that Huber observed Guindon at another trade conference in Seattle in late

2006 and learned that there was no record of a Roger Guindon being registered at

that conference. The court found that Huber was therefore aware of the

possibility that Guindon was using a different name and that he may have

relocated to the United States.

      In June 2007, Plaintiffs retained a consultant to search for Guindon. That

search was limited to Ontario and did not include any known aliases or Guindon’s

wife’s name. The search report stated, “There is a possibility the subject no

longer resides in [Canada].” Aplts. App., Vol II at 525 (quotation omitted).

Plaintiffs initiated a new court action in Ontario in September 2007, asking the

court to confirm the 2003 arbitration award. Despite having reason to believe that

Guindon had left Canada as early as 2000 or 2001, Plaintiffs sent notice of this

action by mail to Guindon at the Strathmore Crescent address.

      Huber testified that he learned from an individual at a training session in

Colorado in December 2007 that a Canadian man was doing playground

                                         -7-
resurfacing work in Colorado. When asked if he knew Guindon, the man told

Huber a person he knew as J.R. had recently asked people to start calling him

Roger Guindon. The district court found there was no evidence as to how

Plaintiffs located Guindon after Huber received this information or if the methods

Plaintiffs used were available to them before that time. Plaintiffs filed this action

in April 2008.

      Guindon’s expert witness testified that he had recently conducted a

nationwide search for Guindon’s name in two public records databases that had

been accessible to subscribers for ten years. Within minutes, he was able to find

Guindon’s Social Security number, his date of birth, and his Colorado address

history between April 2002 and April 2010. He indicated that he found no

Colorado address for Guindon prior to April 2002. The district court found this

testimony was consistent with Guindon’s statements about not having a

permanent address before that time. The searches performed by Guindon’s expert

witness cost less than $200.

                       District Court’s Conclusions of Law

      The district court held that 9 U.S.C. § 207 imposes a three-year statute of

limitations on enforcement of foreign arbitral awards. Under the version of the

Recognition Act applicable at the time Plaintiffs filed this action, which did not

specify a period of limitations, the court held that their claims were subject to a




                                         -8-
two-year statute of limitations. See Colo. Rev. Stat. § 13-80-102(1)(i). The same

two-year statute applied to Plaintiffs’ claims under principles of comity.

      The district court found that Plaintiffs had conceded that their claims with

respect to the pre-2007 orders were not brought within the applicable limitations

periods. The court therefore considered their arguments in favor of equitable

tolling. It held that equitable tolling could apply to their claims under any of

their theories of recovery. Citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)

and Dean Witter Reynolds, Inc. v. Hartman, 911 P.2d 1094, 1096 (Colo. 1996) (en

banc), the court stated that the principles of equitable tolling are similar under

federal law and Colorado law. The court applied the following test from Pace:

“Generally, a litigant seeking equitable tolling bears the burden of establishing

two elements: (1) that he has been pursuing his rights diligently, and (2) that

some extraordinary circumstance stood in his way.” 544 U.S. at 418. It noted

further that “[t]olling of the statute of limitations is equitable relief. Plaintiffs

must demonstrate entitlement to that relief based upon their efforts and confront a

heavy burden when doing so.” Aplts. App., Vol. II at 535 (quotation omitted).

      The district court concluded that Plaintiffs failed to meet their burden to

show that they had diligently pursued their rights. It found that Plaintiffs

possessed information that Guindon intended to move to Colorado in the summer

of 2001. Yet Huber provided only one example, in 2005 or 2006, of his efforts to

make inquiries as to Guindon’s whereabouts. The court found there was no

                                           -9-
evidence presented regarding the scope and time frame of the search filter set up

to identify Guindon’s name in publications, nor was there evidence of any search

for Guindon on the internet or in public records databases. The court stated:

“Plaintiffs[’] failure in the 21st century to avail themselves of the simple

expedient of conducting a computer search [for] the defendant in the United

States, despite having reason to believe that the defendant was in the United

States, is not diligence for purposes of claiming equitable tolling.” Id. at 537.

The court concluded further:

             Moreover, plaintiffs have failed to show some “extraordinary
      circumstance” that stood in the way of their filing their claims within
      the limitations period. Even if the defendant’s conduct between 2000
      and 2002 could be described as active deception, plaintiffs have
      failed to show that there is any impediment that existed after 2002
      that frustrated their ability to conduct a database search for the
      defendant in the United States. As a result, the plaintiffs also failed
      this prong of the equitable tolling test.

Id. at 538.

      The district court next addressed the enforceability of the Ontario court

order enforcing the 2003 arbitration award. It concluded that Plaintiffs’ service

of Guindon with a new lawsuit in 2007 at the Strathmore Crescent address was

not reasonably calculated to provide him with notice and therefore did not

comport with due process. Consequently, the court held that the 2007 order was

unenforceable under principles of comity and the Recognition Act. The district

court entered judgment in favor of Guindon.


                                         -10-
                                     Discussion

      “In an appeal from a bench trial, we review the district court’s factual

findings for clear error and its legal conclusions de novo.” Roberts v. Printup,

595 F.3d 1181, 1186 (10th Cir. 2010) (quotation omitted). We review the district

court’s determination whether to apply equitable tolling for an abuse of

discretion. See Edwards v. Int’l Union, United Plant Guard Workers of Am.,

46 F.3d 1047, 1055 (10th Cir. 1995). “An abuse of discretion occurs when the

district court’s decision is arbitrary, capricious, or whimsical, or results in a

manifestly unreasonable judgment.” United States v. Weidner, 437 F.3d 1023,

1042 (10th Cir. 2006) (quotation omitted). “[E]quitable tolling is appropriate

only in rare and exceptional circumstances.” Sigala v. Bravo, 656 F.3d 1125,

1128 (10th Cir. 2011) (quotation omitted).

      Plaintiffs argue on appeal that the district court applied an incorrect legal

standard for equitable tolling in requiring them to show that they diligently

searched for Guindon. 2 They maintain that the court should have focused

exclusively on Guindon’s wrongful conduct in fraudulently concealing his




2
       Plaintiffs advance no argument that the district court erred in determining
the applicable statutes of limitations. Nor do they address in their appeal brief
the district court’s holding that the 2007 order was unenforceable. They have
therefore forfeited appellate consideration of these issues. See Bronson v.
Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e routinely have declined to
consider arguments that are not raised . . . in an appellant’s opening brief.”).

                                         -11-
whereabouts through December 2007, when Plaintiffs actually discovered he was

living in Colorado.

         Plaintiffs’ case citations fail to support this proposition. They rely on a

district court case holding, without citation to authority, that where a defendant

takes positive steps after committing a fraud to keep it concealed, “the focus of

inquiry shifts [and] [d]efendant’s conduct will toll the limitations period (without

any special concern as to plaintiff’s due diligence) until such time as plaintiff

actually discovers the underlying wrong.” Ohio v. Peterson, Lowry, Rall, Barber

& Ross, 472 F. Supp. 402, 406-07 (D. Colo. 1979). In affirming that decision,

however, we rejected this proffered alternative standard for equitable tolling,

stating:

         [W]e see no reason why an act of concealment by defendant should
         excuse plaintiff from his obligation of diligence, which he owes the
         court as well as his adversaries. Of course, if defendant successfully
         conceals the fraud, the concealment would fool the hypothetical
         diligent plaintiff and toll the statute. But where, as here, the
         concealment is insufficient to fool a reasonably diligent plaintiff but
         nevertheless allegedly prevented discovery by Ohio, the second
         doctrine of fraudulent concealment urged by appellant would simply
         give it a second arrow to its bow. We hold, therefore, that there is
         but one federal doctrine of equitable tolling, as set forth in Holmberg
         v. Armbrecht.

Ohio v. Peterson, Lowry, Rall, Barber & Ross, 651 F.2d 687, 694-95 (10th Cir.

1981).

         In Holmberg v. Armbrecht, a case which Plaintiffs also cite in their brief,

the Supreme Court set forth the standard for equitable tolling as follows:

                                           -12-
      [W]here a plaintiff has been injured by fraud and remains in
      ignorance of it without any fault or want of diligence or care on his
      part, the bar of the statute does not begin to run until the fraud is
      discovered, though there be no special circumstances or efforts on
      the part of the party committing the fraud to conceal it from the
      knowledge of the other party.

327 U.S. 392, 397 (1946) (emphasis added) (quotation omitted). Before and after

Holmberg, the Court has consistently required a showing of diligence to invoke

equitable tolling. See, e.g., Pace, 544 U.S. at 418 (listing elements for equitable

tolling, including the burden to establish diligence); Irwin v. Dep’t of Veterans

Affairs, 498 U.S. 89, 96 (1990) (“We have generally been much less forgiving in

receiving late filings where the claimant failed to exercise due diligence in

preserving his legal rights.”); Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S.

147, 151 (1984) (“One who fails to act diligently cannot invoke equitable

principles to excuse that lack of diligence.”); Wood v. Carpenter, 101 U.S. 135,

141 (1879) (“A party seeking to avoid the bar of the statute on account of fraud

must aver and show that he used due diligence to detect it, and if he had the

means of discovery in his power, he will be held to have known it.”). This court,

too, has applied a diligence requirement. See Sigala, 656 F.3d at 1128.

      Alternatively, Plaintiffs contend the district court erred in concluding that

they did not diligently search for Guindon. Plaintiffs neither acknowledge that

the district court’s factual findings are subject to clear-error review, nor argue

that any of the court’s findings are reversible under that standard. Instead, they


                                         -13-
recite only the evidence they contend supports a finding of diligence, ignoring the

evidence relied on by the district court. They conclude, “Given the length and

degree of deception employed by [Guindon], no amount of diligent searching

could have allowed Plaintiffs to pursue enforcing the various awards, judgments

and orders entered against [Guindon] in Canada in a more timely manner than

occurred here.” Aplts. Opening Br. at 32. The district court concluded otherwise,

and its decision was not “arbitrary, capricious, or whimsical,” nor did it “result[]

in a manifestly unreasonable judgment.” Weidner, 437 F.3d at 1042.

      The judgment of the district court is AFFIRMED.


                                                     Entered for the Court



                                                     Bobby R. Baldock
                                                     Circuit Judge




                                         -14-
