Hisert v. Haschen, 980 F.3d 6

H2H Associates, LLC (H2H) won a 2015 Army Corps dredging contract for Cohasset Harbor and subcontracted the work to Blue Waters Dredging LLC (BWD), of which Herbert Haschen was a member.
In December 2015 Haschen signed a partial lien waiver on behalf of BWD stating BWD had been paid in full, despite knowing about unpaid vendors and open accounts.
H2H relied on the waiver and continued payments; later H2H sued for fraud. A jury found Haschen liable under Massachusetts law and awarded $148,626 (plus a default judgment against another defendant).
The district court applied Massachusetts choice-of-law principles (the functional approach) over Maryland law, noting differences in intent and burden of proof between the two states.
On appeal Haschen challenged dismissal/summary-judgment rulings, the choice of law, the fraud verdict, and whether the arbitration clause barred the suit; the First Circuit found many challenges unpreserved and affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Choice of law: whether Massachusetts or Maryland law governs the fraud claim	Hisert: Massachusetts law applies (transaction and harm centered in MA)	Haschen: Maryland law should apply	Massachusetts law governs under the functional approach (MA had the most significant relationship)
Sufficiency/standards for fraud (intent and burden)	Hisert: evidence supports fraud under MA law (preponderance; no deliberate-intent requirement)	Haschen: Maryland requires deliberate intent and clear-and-convincing proof	Jury verdict upheld; MA standards apply and evidence was sufficient
Effect of arbitration clause in H2H–BWD contract	Hisert: arbitration right was waived because Haschen never moved to compel	Haschen: arbitration clause bars the claim against him	Arbitration right waived—Haschen never sought to compel or stay under the FAA; claim proceeds in court
Preservation and appealability of pretrial rulings (12(b)(6), summary judgment, Rule 50)	Hisert: many pretrial denials are not reviewable after trial	Haschen: challenges earlier denials and jury instruction on choice of law	Several issues were unpreserved or not appealable; appellant’s arguments lacking preservation and merit; affirmed

Ortiz v. Jordan, 562 U.S. 180 (2011) (orders denying summary judgment are generally not reviewable after a full trial)
Levin v. Dalva Bros., Inc., 459 F.3d 68 (1st Cir. 2006) (First Circuit explains functional choice-of-law approach guided by Restatement)
UBS Fin. Servs., Inc. v. Aliberti, 133 N.E.3d 277 (Mass. 2019) (Massachusetts recognizes functional/interest analysis in choice-of-law)
Cosme v. Whitin Mach. Works, Inc., 632 N.E.2d 832 (Mass. 1994) (Mass. application of choice-of-law factors)
Bushkin Assocs., Inc. v. Raytheon Co., 473 N.E.2d 662 (Mass. 1985) (Mass. courts assess comparative state interests and significant relationship)
Ji v. Bose Corp., 626 F.3d 116 (1st Cir. 2010) (preservation rules for appellate review)
In re Citigroup, Inc., 376 F.3d 23 (1st Cir. 2004) (arbitration rights may be waived expressly or implicitly)
Udemba v. Nicoli, 237 F.3d 8 (1st Cir. 2001) (Rule 50 renewal required to preserve JMOL challenge for appeal)