Wayne Farms appeals from the district court’s 1 dеnial of its motion to compel arbitration, arguing that the court erroneously applied Arkansas law rather than Georgia law. Wayne Farms filed its motion in response to Clyde and Wanda Wiser’s complaint alleging fraud, fraudulent inducement, and promissory estoppel. The district court found that the arbitration clauses in two agreements between Wanda Wiser and Wayne Farms were unenforceable under Arkansas law due to lack of mutuаlity of obligation. We affirm.
I.
In 1997, Wayne Farms and Wanda Wiser signed two Breeder Flock Agreements (the “Agreements”) contemplating a five-year relationship in which Wanda would care for chickens supplied by Wayne *925 Farms and harvest the chickens’ eggs in exchange for compensation. This arrangement remained essentially unchanged until 1999, when the Wisers attempted to sell their farm. Instead of a buyer, the Wisers located a potential lessee who was interested in operating the Wisers’ farm with an option to purchase it. The potential lessee wanted to retain the contracts with Wayne Farms, and offered to pay the Wisers a percentagе of the income received therefrom.
The Wisers allege that upon hearing of the lessee’s interest, they contacted Wayne Farms regarding the potential lease. Wayne Farms, according to the Wisers, agreed to permit the lessee to operate under the Agreements so long as certain improvements were made to the Wisers’ facilities. The Wisers needed to borrow money in order to make the improvements, so, according to the Wisers’ complaint, Clyde Wiser sought assurances from Wayne Farms that if the lessee did not perform acceptably under the Agreements, Wayne Farms would permit Wanda Wiser to resume raising its poultry. Wayne Farms, the Wisers allege, “promised both Wanda and Clyde Wiser that in the event Wayne Farms decided to terminate its relationship with the [lessee], Wanda Wiser would be allowed to again raise breeder hens for Wayne Farms.” (Comply 7).
The Wisers borrowed about $54,000 to make the required improvements and proceeded to lease their farm in 2000. The lessee did not perform to Wayne Farms’s satisfaction, and, as a result, Wayne Farms removеd its hens from the Wisers’ farm in 2002. The Wisers repeatedly requested that they be permitted again to raise breeder hens for Wayne Farms, but they were denied each time.
The Wisers brought suit against Wayne Farms on March 7, 2003, seeking damages in excess of $500,000 for alleged fraud, fraudulent inducement, and promissory es-toppel. Wayne Farms answered on April 21, 2003, and, on the same day, moved the court to compel arbitration pursuant to the arbitration clauses contained in the Agreements. The district court issued its order denying Wayne Farms’s motion on March 25, 2004, holding that the Wisers were not bound by the arbitration clauses in the Agreements. The court’s order contained no express consideration of choice of law, but relied on the Arkansas Supreme Court opinion in
Tyson Foods, Inc. v. Archer,
II.
The parties do not dispute that if Arkansas law applies to the Agreements, then their requirement to arbitrate is unenforceable. Wayne Farms asserts that the district court erred in applying Arkаnsas law because the Agreements clearly state that Georgia law is to govern any disputes arising between the parties. The Agreements each contain a paragraph entitled “Governing Law” providing that thе Agreements are to “be governed by, and interpreted and construed in accordance with, the laws of the State of Georgia.” They also contain arbitration clauses stipulating to the application оf Georgia law in the event of arbitration. The Wisers con *926 tend, however, that any error committed by the district court in applying Arkansas law is of Wayne Farms’s own making, and that Wayne Farms “waived” the argument that Georgia law should apply by its conduct in the district court.
The Wisers are certainly correct that “[o]rdinarily this court will not consider arguments raised for the first time on appeal.”
Wever v. Lincoln County, Nebraska,
This case fits that category. Wayne Farms failed to argue for the application of Georgia law in the district court. The refеrences to Georgia law contained in the Agreements were never urged upon the district court, and citations to Georgia cases or statutes are wholly absent from Wayne Farms’s pleadings, motions, and supporting documents. Wayne Farms, in fact, affirmatively relied on Arkansas law to argue almost every legal issue. In its Brief in Support of Motion to Compel Arbitration and to Stay, Wayne Farms cited Arkansas cases regarding the interpretation of the Federal Arbitration Act, 9 U.S.C. §§ 1-14, and the enforceability of arbitration clauses. With respect to the crucial issue on appeal, Arkansas’ requirement of mutuality of obligation, Wayne Farms cited only opinions of the Arkansas Supreme Court. “The rule that we will not address arguments raised for the first time on appeal applies even more forcefully when the appellant took the opposite position in thе district court,”
Davidson & Schaaff,
Wayne Farms attempts to explain its failure to argue for the application of Georgia law by noting that there was no difference between the mutuality requirements of Georgia and Arkansas until the Arkansas Supreme Court decided Archer in 2004. As Wayne Farms conceded at oral argument, however, after Archer was decided on February 19, 2004, there was more than a month delay before the district court issued its order, during which time Wayne Farms again failed to direct the district court’s attention to a choice of law issue. Responsibility for the district court’s application of Arkansas law thus lies squarely with Wayne Farms.
Wayne Farms argues that despite its repeatеd citation of Arkansas law and failure to direct the district court’s attention to Georgia law, the court’s application of Arkansas law should be reviewed for plain error. According to Wayne Farms, the district cоurt’s application of Arkansas law is “an obvious instance of misapplied law.” (Appellant’s Reply Br. at 7). “[I]t is well settled,” according to Wayne Farms, that a court of appeals may consider an issue for the first timе on appeal “in order to prevent plain error or a miscarriage of justice.”
(Id.)
This contention draws some support from
Singleton v. Wulff,
More recently, however, the Court has established a stringent test for the correction of unpreserved errors in the criminal cоntext, requiring an obvious error that
*927
would affect a defendant’s substantial rights and “seriously affect the fairness, integrity, or public reputation of judicial proceedings” before a court of appeals may take сorrective action.
United States v. Olano,
The law in our circuit on the plain-error test in a civil context, however, is not entirely clear. Although
Rush
has been interpreted as “applying] the
Olano
test in the civil context without expressly saying so,”
Owens-Ill., Inc.,
Even assuming Wayne Farms did not waive,
ie.,
intentionally relinquish, any argument about choice of law by its citation in the district court of Arkansas (rather than Georgia) precedents, we think the better view among our apparently conflicting precedents is that an unpreserved error in the civil context must meet at least the
Olano
standard to warrant correction. The alleged error in this case is that the district court failed to apply a contract provision that Wayne Farms never invoked, with the consequence that this dispute will be litigated in federal court. To hold Wayne Farms to the application of Arkansas law under these circumstances surely would not “seriously affect the fairness, integrity, or public reputation of judicial proceedings.”
Olano,
But even if there remains discretion to resоlve newly-raised issues based simply on the presence of an obvious error, it is clear that “[t]he matter of what questions may be taken up and resolved for the first time on appeal is one left primarily to the discrеtion of the courts of appeals, to be exercised on the facts of individual cases.”
Singleton,
The judgment of the district court is affirmed.
Notes
. The Honorable Stephen M. Reasoner, United States District Judge for the Eastern District of Arkansas.