ALPINE GLASS, INC., Plаintiff-Appellant, v. COUNTRY MUTUAL INSURANCE COMPANY; MSI Preferred Insurance Company; Mutual Service Casualty Insurance Company; Modern Service Insurance Company; Country Preferred Insurance Company; Country Casualty Insurance Company, Defendants-Appellees.
No. 14-2578
United States Court of Appeals, Eighth Circuit
July 10, 2015
Rehearing and Rehearing En Banc Denied Aug. 14, 2015
792 F.3d 1017
Before RILEY, Chief Judge, MURPHY and MELLOY, Circuit Judges.
Submitted: May 13, 2015.
Furthermore, in “the multiple punishments context,” the double jeopardy clause “is limited to ensuring that the total punishment did not exceed that authorized by the legislature.” Jones v. Thomas, 491 U.S. 376, 381, 109 S. Ct. 2522, 105 L. Ed. 2d 322 (1989). In Jones, the Supreme Court upheld a state court’s alteration of a defendant’s sentence after he was improperly sentenced to serve terms of imprisonment for both felony murder and the underlying felony of attempted robbery. Id. at 378, 387, 109 S. Ct. 2522. After “it became apparent that two consecutive sentences had been imposed where state law permitted but one,” the state “court vacated the attempted robbery conviction and sentence and credited the time that respondent had served under that conviction against the remaining sentence for felony murder,” even though the defendant had already served his sentence for attempted robbery. Id. at 378, 382, 109 S. Ct. 2522. The Supreme Court concluded that the altered sentence had not violated the “double jeopardy prohibition against multiple punishments” because the defendant was still serving a sentence that had been authorized by the legislature. Id. at 380–82, 382 n. 2, 109 S. Ct. 2522.
Litschewski does not dispute that the state court was permitted by statute to impose a 7.5 year sentence on count one, a 12.5 year sentence on count two, and a 7.5 year sentence on count three for а total term of 27.5 consecutive years imprisonment. A fairminded jurist could conclude that the state court’s chronological rearrangement of the three sentences did not impose a “total punishment” exceeding “that authorized by the legislature,” but rather corrected a clerical error by the sentencing court. See Jones, 491 U.S. at 381–82, 109 S. Ct. 2522. The “Constitution does not require that sentencing should be a game in which a wrong movе by the judge means immunity for the prisoner” and “neither the Double Jeopardy Clause nor any other constitutional provision exists to provide unjustified windfalls” to defendants. Id. at 387, 109 S. Ct. 2522 (internal quotations omitted). Given that the state court here, as in Jones, credited Litschewski for time served and imposed terms of imprisonment that had been authorized by the legislature, we conclude that Supreme Court precedent provides a “reasonаble basis” for fairminded jurists to disagree on the correctness of the state court’s chronological rearrangement of Litschewski’s sentence. Harrington, 562 U.S. at 98, 101, 131 S. Ct. 770.
For these reasons we reverse the judgment of the district court and remand for entry of judgment denying Litschewski’s amended petition under
Mark R. Bradford, argued (Jeanne H. Unger, Kerri J. Nelsоn, on the brief), Minneapolis, MN, for Defendants–Appellees.
OPINION
MELLOY, Circuit Judge.
Alpine Glass, Inc., appeals from an order confirming an arbitration award for one of 482 claims it asserted against several insurance companies. Because unresolved claims remain, because Alpine Glass did not obtain certification for an interlocutory appeal, and because the order below is not a qualifying order pursuant to
I.
As explained in a prior appeal in this matter, Alpine Glass repairs automotive glass in a highly regulated business in Minnesota. See Alpine Glass, Inc. v. Country Mut. Ins. Co., 686 F.3d 874, 876 (8th Cir. 2012). Pursuant to Minnesota law, Alpine Glass receives from insured vehicle owners the right to seek payment from insurance companies for repairs performed. This case involves disputes between Alpine Glass and several insurers regarding the amounts paid for 482 separate claims. Minnesota law mandates arbitration of these disputes. See
Alpine Glass filed suit in state court seeking a declaratory judgment consolidating the 482 claims for one arbitration. Country Mutual Insurance Company removed the case to federal court asserting diversity jurisdiction and a total combined amount in controversy for all claims in excess of the jurisdictional threshold of
Alpine Glass moved for summary judgment on the issue of consolidation. The district court examined the claims and determined many of the 482 claims were barred by a two-year statute of limitations included in some of the insurance policies. The court determined 248 claims either were not governed by the two-year statute of limitations or, if governed, were timely. The court consolidated these claims for one arbitration and ordered arbitration. The court determined the remaining 234 claims were time-barred.
Alpine Glass appealed the consolidation order to our court, and we dismissed for lack of jurisdiction. We held the consolidation order was not an appealable final judgment. Alpine Glass, Inc., 686 F.3d at 877. We also held we could not reach the consolidation order pursuant to the collateral order doctrine. Id. at 877–79. In our opinion, we noted a discussion that took place at oral argument:
Alpine stresses that, if the district court’s order stands, then Alpine will be forced into piecemeal arbitration of the claims that were not consolidated, thereby rendering the consolidation order unreviewable following final judgment. However, the parties at oral argument were unable to articulate a reason why Alpine could not pursue a single claim to final judgment, which would then allow Alpine to properly place the consolidation issuе before this court as an appeal from a final order.
The parties next pursued arbitration of one claim in which Alpine Glass sought reimbursement for an alleged underpayment of $398.77. Arbitration resulted in a ruling in fаvor of the insurance company. Alpine Glass then moved the district court to vacate that arbitration award. The district court denied the motion, finding no statutory grounds to support granting the motion. Alpine then filed a motion to confirm the arbitration award. The district court confirmed the award, stating:
[T]he only reason Alpine Glass brought a Motion to Vacate was its belief that this Court’s ruling on the Motion would allow it to appeal the issue to the Eighth Circuit Court of Appeals. Having failed to persuade the Court of the merits of its undisputedly meritless motion, Alpine Glass now asks for the inverse: an order confirming the very award it sought to vacаte. Alpine Glass does not explain why it did not initially move to confirm the award if it believes that the award must be confirmed. The Court cannot countenance Alpine Glass’s change of position, and will deny Alpine Glass’s Motion.... However, the Court is bound by statute to confirm the arbitration award, given its previous determination that the award would not be vacated. Thus, although Alpine Glass is estopped from bringing its Motion, the Court must grant thе relief Alpine Glass seeks.
Alpine Glass again appeals, arguing: (1) the district court erred in finding the two-year statute of limitations applies to the consolidation complaint; and (2) pursuant to
II.
The district court directed entry of a final judgment on the arbitrated and confirmed claim. Hundreds of claims remain
When an action presents more than onе claim for relief—whether as a claim, counterclaim, crossclaim, or third-party claim—or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the сlaims and all the parties’ rights and liabilities.
Here, Alpine Glass did not seek, and the district court did not provide, a certification under Rule 54(b) indicating that the court had “expressly determine[d] that there is no just reason fоr delay.”
Alpine Glass correctly notes that it attempted to fоllow the procedure suggested by footnote 3 in our prior opinion. Our suggestion, however, cannot create jurisdiction. Further, the footnote merely referenced a discussion from oral argument during which neither counsel immediately recognized any jurisdictional impediment to using a “test claim” as a vehicle for appellate review of the consolidation issue. And, to the extent Alpine Glass urges us to treаt the “test claim” as an independent case, we again lack jurisdiction. This matter is in federal court pursuant to diversity jurisdiction. Only by aggregating the claims can the amount in controversy approach the jurisdictional threshold. Because we may not entertain a diversity case involving a mere $398.77, we need not address this theory.
Finally, Alpine Glass requests through a footnote in its reply brief that, if we find jurisdiction lacking, we treat the appeal as a petition for writ of mandamus. We recently discussed the stringent standards associated with such a writ and find no basis for issuing a writ in this case. See In re Union Elec. Co., 787 F.3d 903 (8th Cir. 2015).
The appeal is dismissed for lack of jurisdiction.