Order OF COURT
The petition for rehearing en banc filed by plaintiff-appellant Carl Kale is, under this court's internal operating procedures, considered both by the panel and by the full court. Panel rehearing is hereby denied for the following reasons.
Appellant's argument that his second action should survive because his pendent state-law claim in the first action was dismissed "without prejudice" was adequately answered in the panel opinion at pp. 1167. Appellant's claim that the res judicata effect of that language was broader than the panel indicated overlooks that appellee, having won, could not appeal the "without prejudice" dismissal and thus could not be bound by that characterization to the extent urged by appellant. See In re Public Serv. Co., 898 F.2d 1, 2 (1st Cir. 1990) ("a party cannot appeal a judgment entered in its own favor"); Bath Iron Works Corp. v. Coulombe, 888 F.2d 179, 180 (1st Cir. 1989) (similar); see also Sierra Club v. Marsh, 907 F.2d 210, 213 (1st Cir. 1990) ("appellant, having prevailed, could not have appealed [the order]").
Insofar as appellant urges, for the first time, new theories, variously characterized in his petition as "waiver," "acquiescence" and "estoppel by judgment," based on the fact that the defendant knew all along that the plaintiff could have asserted diversity jurisdiction, the contentions are not properly before us. The appellant did not make the contentions below. He did not make them in his appellate briefs. He did not make them at oral argument. He did not request leave, after oral argument, to file a supplemental brief. The points are, therefore, foreclosed. "[A] party cannot be permitted to raise a new issue for the first time on a petition for rehearing in the court of appeals." Anderson v. Beatrice Foods Co., 900 F.2d 388, 397 (1st Cir. 1990) (opinion denying rehearing).
The petition for panel rehearing is denied.