United States Court of Appeals

For the Eighth Circuit

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No. 14-2578

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Alpine Glass, Inc.

lllllllllllllllllllll Plaintiff - 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

lllllllllllllllllllll Defendants - Appellees

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Appeal from United States District Court 

for the District of Minnesota - Minneapolis

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 Submitted: May 13, 2015

 Filed: July 10, 2015

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Before RILEY, Chief Judge, MURPHY and MELLOY, Circuit Judges.

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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 Fed. R. Civ. P. 54(b), we lack jurisdiction to entertain this appeal.

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 receivesfrom insured vehicle ownersthe 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 Minn. Stat. § 65B.525, subd. 1.

Alpine Glass filed suit in state court seeking a declaratory judgment

consolidating the 482 claims for one arbitration. CountryMutualInsurance 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

$75,000. Alpine Glass then filed an amended complaint naming as defendants

Country Mutual subsidiaries who had issued several of the underlying policies.

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 limitationsincluded 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

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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 issue before this court as an appeal from a final order.

Id. at 878 n.3.

The parties next pursued arbitration of one claimin which Alpine Glass sought

reimbursement for an alleged underpayment of $398.77. Arbitration resulted in a

ruling in favor 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 vacate. 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

the relief Alpine Glass seeks. 

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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 Fed. R. Civ. P. 15(c)(1)(C), the date of the amended complaint should

relate back to the original complaint, thus bringing additional claims within the group

of consolidated claims even if the statute oflimitation applies. The insurers challenge

our jurisdiction to entertain this interlocutory appeal.

II.

The district court directed entry of a final judgment on the arbitrated and

confirmed claim. Hundreds of claims remain outstanding, however, and Alpine Glass

did not seek certification for an interlocutory appeal pursuant to 28 U.S.C. § 1292(b). 

Section 1292(b) certification, however, is not the only potential vehicle to establish

jurisdiction for an interlocutory appeal. Rather, the Federal Rules of Civil Procedure

contemplate multi-claim and multi-party situations when such an appeal may be

appropriate.

When an action presents more than one claim for relief—whether as a

claim, counterclaim, crossclaim, orthird-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

claims and all the parties' rights and liabilities.

Fed. R. Civ. P. 54(b). 

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 for delay." Id. The requirement for this express

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determination is mandatory in nature. See Mathers v. Wright, 636 F.3d 396, 398 (8th

Cir. 2011). Rule 54(b) is to be used sparingly, we are not at liberty to disregard the

"no just reason for delay" requirement, and even when such a determination is made,

we review for an abuse of discretion. Williams v. Cnty. of Dakota, Neb., 687 F.3d

1064, 1067 (8th Cir. 2012). Given the 481 outstanding claims and the absence of the

required Rule 54(b) finding, we lack jurisdiction over this matter.

Alpine Glass correctly notes that it attempted to follow 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 treat 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., No. 14-3276, 2015

WL 3429462 (8th Cir. May 29, 2015).

The appeal is dismissed for lack of jurisdiction.

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