author:
RILEY, Chief Judge.
      COLLOTON, Circuit Judge,

text:
    IN RE: WHOLESALE GROCERY PRODUCTS ANTITRUST LITIGATION Colella’s Super Market, Inc., Movant-Appellant v. SuperValu, Inc.; C&S Wholesale Grocers, Inc., Defendants-Appellees In re: Wholesale Grocery Products Antitrust Litigation JFM Market, Inc.; MFJ Market, Inc., Plaintiffs-Appellants v. SuperValu, Inc., Defendant-Appellee
    No. 15-3089, No. 15-3174
    United States Court of Appeals, Eighth Circuit.
    Submitted: May 17, 2016
    Filed: March 1, 2017

      Counsel who presented argument on behalf of the appellant and appeared on the brief was Edward T. Dangel, III, of Boston, MA.
    Counsel who presented argument on behalf of the appellees was Stephen Paul Safranski, of Minneapolis, MN. The following attorneys also appeared on the appel-lee brief; Christopher J. MacAvoy, of Washington, DC., Jeffrey Sullivan Gleason, of Minneapolis, MN., Lisa Louise Beane, of Minneapolis, MN., Erik T. Koons, of Washington, DC., Hugh Hollman, of Washington, DC., Rajat Rana, of Washington, DC., Todd A. Wind, of Minneapolis, MN., Nicole M. Moen, of Minneapolis, MN.
    Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.
   RILEY, Chief Judge.

Several retail grocers sued two large full-line wholesale grocers for violation of the Sherman Act, 15 U.S.C. §§ 1, et seq. The retailers sought to represent two putative classes, the Midwest class and the New England class. Each class had an Arbitration Subclass of retailers who had arbitration agreements with their respective wholesaler. The district court dismissed the purported representatives of the Arbitration Subclasses from the case, and we reversed. See In re Wholesale Grocery Prods. Antitrust Litig., No. 09-MD-2090, 2011 WL 9558054, at *1 (D. Minn. July 5, 2011) (unreported); King Cole Foods, Inc. v. SuperValu, Inc. (In re Wholesale Grocery Prods. Antitrust Litig), 707 F.8d 917, 919 (8th Cir. 2013).

By then the district court had rejected the proposed Midwest and New England classes and granted the defendants’ motion for summary judgment. See In re Wholesale Grocery Prods. Antitrust Litig., No. 09-MD-2090, 2012 WL 3031085, at *8 (D. Minn. July 25, 2012) (unreported); In re Wholesale Grocery Prods. Antitrust Litig., No. 09-MD-2090, 2013 WL 140285, at *1 (D. Minn. Jan. 11, 2013) (unreported). The Midwest class representative appealed, but the New England class representative did not. We reversed, ordering the district court to consider a narrower Midwest class. See D & G, Inc. v. SuperValu, Inc. (In re Wholesale Grocery Prods. Antitrust Litig.), 752 F.3d 728, 729, 736 (8th Cir. 2014). On remand, Colella’s Super Market, Inc. (Colella) moved to intervene to join MFJ Market, Inc. and JFM Market, Inc. (collectively, Village Market), the New England Arbitration Subclass representative, in seeking to certify a narrower New England class. The district court denied the motion and announced it would not consider any new class of New England plaintiffs. Before us are Village Market’s and Colella’s consolidated appeals.

1. BACKGROUND

In 2003, wholesale grocery suppliers Su-perValu, Inc. (SuperValu) and C&S Wholesale Grocers, Inc. (C&S) (collectively, appellees or wholesalers) entered into an Asset Exchange Agreement (AEA). C&S had recently purchased Fleming Companies, Inc.’s (Fleming) Midwest wholesale grocery business assets out of bankruptcy. In the AEA, C&S sold Fleming to SuperValu and C&S purchased Su-perValu’s New England business. Among the assets exchanged were supply agreements and arbitration agreements between each wholesaler and a number of its retail customers (the swap). The AEA also contained allegedly secret reciprocal non-compete provisions. Several retailers sued SuperValu ánd C&S, alleging the AEA violated the Sherman Act, 15 U.S.C. §§ 1, et seq., because it unlawfully allocated the New England market to C&S and the Midwest market to SuperValu.

The retailer-plaintiffs proposed two classes: Midwest SuperValu customers and New England C&S customers. DeLuca’s Corporation (DeLuca) was the putative New England class representative and. D&G, Inc. (D&G) was the putative Midwest class representative. Each class had an “Arbitration Subclass” of retailers who had arbitration agreements with their current wholesaler during the class period, and thus could only sue their pre-swap wholesaler. Village Market was the representative of the putative New England Arbitration Subclass.

In July 2011, the Arbitration Subclasses were dismissed from the case, the district court having determined the nonsignatory defendants (the pre-swap wholesalers) could each enforce against the plaintiffs the arbitration agreements they had assigned to the other. See In re Wholesale Grocery Prods. Antitrust Litig., 2011 WL 9558054, at *3, *6. In February 2013, we reversed. See In re Wholesale Grocery Prods. Antitrust Litig., 707 F.3d at 919.

By the time the Arbitration Subclasses were reinstated in February 2013, the class certification for the broader New England and Midwest classes had been denied, and the district court had granted summary judgment in favor of the defendants against D&G and DeLuca as individual plaintiffs (in July 2012 and January 2013, respectively). See In re Wholesale Grocery Prods. Antitrust Litig., 2012 WL 3031085, at *8; In re Wholesale Grocery Prods. Antitrust Litig., 2013 WL 140285, at *1. D&G appealed the summary judgment ruling, but DeLuca did not.

In May 2014, we affirmed the district court’s denial of the Midwest class certification, but reversed and remanded the grant of summary judgment against D&G, and ordered the district court to consider a narrower class of Midwest plaintiffs (Champaign class). See In re Wholesale Grocery Prods. Antitrust Litig., 752 F.3d at 736. The case was remanded on August 26, 2014, after rehearing and rehearing en banc were denied.

The issues on remand were referred to a magistrate. The issue of the Cham-paign class was pending, and an additional complaint had been filed by two putative classes of Midwest plaintiffs. Nemecek Markets, Inc. (Nemecek) proposed to represent a class of retailers serviced by SuperValu’s Green Bay, Wisconsin, distribution center. Elkhorn-Lueptows, Inc., Jefferson Lueptows, Inc., and East Troy Lueptows, Inc. (collectively, Lueptows) proposed to represent a class of retailers serviced by SuperValu’s Pleasant Prairie, Wisconsin, distribution center. On October 24, 2014, Colella moved to intervene to seek certification of a narrower New England class (Greater Boston class) in concert with Village Market, the New England Arbitration Subclass representative.

The magistrate judge permitted the Midwestern Champaign, Nemecek, and Lueptows plaintiffs to seek certification of their narrower classes. The magistrate judge denied Colella’s motion to intervene. The distinguishing factor was that the district court’s rejection of the broader New England class had never been appealed. While we remanded the question of the Midwest class certification after D&G appealed, there was no such order relating to the New England class. The magistrate judge noted “Defendants have litigated this matter without the involvement of New England Plaintiffs since February 2013 and without Colella’s involvement since the litigation’s inception.” The magistrate judge decided Colella’s motion was untimely, and even if it were timely, Colel-la would have no right to intervene. The magistrate judge explained “Colella’s has not provided reason for unduly delaying its attempt to intervene.... If an unnamed class member wished to appeal the ... denial [of class certification], it would have been appropriate to seek intervention” within thirty days of the district court’s order. Moreover, Colella was not entitled to intervene as a matter of right because it had no recognized interest in the litigation since the New England plaintiffs were out of the case. The magistrate judge reasoned Colella was free to file its own suit and would suffer “no preclusive effect” of the previous case since Colella was “a non-party and absent putative class member.”

The parties presented to the district court objections to the magistrate judge’s rulings. SuperValu was concerned the magistrate judge’s order did not explicitly determine whether the New England plaintiffs would be permitted to seek certification of a narrower class and requested the district court clarify they could not. The district court ruled the magistrate judge “sufficiently and correctly determined that the New England Plaintiffs may not relitigate certification for a New England Class” and agreed with the magistrate judge that allowing Colella to intervene “ ‘would give New England Plaintiffs an unwarranted second bite at the class-certification apple.’ ” The district court explained that the New England Arbitration Subclass’s interests were protected by the broader New England class even while the subclass had been dismissed from the case and not yet reinstated. The district court also rejected Colella’s and Village Market’s argument that D&G represented the New England class’s interests when it appealed the denial of certification as to the Midwest class. The district court accepted the magistrate judge’s recommendation that the Midwest plaintiffs be permitted to seek certification of narrower classes.

Colella and Village Market (appellants) appeal, arguing they should not be bound by DeLuca’s failure to appeal the denial of the New England class certification, because Village Market, as the Arbitration Subclass representative, had been dismissed from the case and was not reinstated by our ruling until after the larger class was denied certification.

II. DISCUSSION

A. Interlocutory Appeal on Class Certification

Except in a few special situations, we do not review district court rulings that are not yet final. See 28 U.S.C. §§ 1291, 1292. We “may,” however, “permit an appeal from an order granting or denying class-action certification” under Federal Rule of Civil Procedure 28(f), if the would-be appellant petitions for permission “within 14 days after the order is entered.” Village Market filed such a petition after the district court entered its order refusing to consider certifying the Greater Boston class. That ruling did not purport to be “an order granting or denying class-action certification.” Fed. R. Civ. P. 23(f). Nor did it function as one, as by “openfing] up [a] class to individuals ... beyond the more limited group [originally included],” Glover v. Standard Fed. Bank, 283 F.3d 953, 959 (8th Cir. 2002), or otherwise “ ‘materially altering a previous order granting or denying class certification,’ ” Phillips v. Sheriff of Cook Cty., 828 F.3d 541, 559 (7th Cir. 2016) (quoting Matz v. Household Int’l Tax Reduction Inv. Plan, 687 F.3d 824, 826 (7th Cir. 2012)). Rather, right or wrong, the district court emphatically left the status quo — no class certification for the New England plaintiffs — untouched (and untouchable): “the denial of a New England Class was not appealed and is final, and the New England Plaintiffs are not permitted to pursue class certification of a narrower New England Class.”

We therefore have no discretion to hear Village Market’s appeal under Rule 23(f), as our sister circuits have unanimously concluded in analogous situations. See, e.g., id. at 559-60 (dismissing an attempted appeal because “the district court made no ruling that altered, in any meaningful sense, its earlier decision”); Nucor Corp. v. Brown, 760 F.3d 341, 343 (4th Cir. 2014) (“The district court’s post-certification orders never altered the status of the [relevant] class and thus were not orders granting or denying certification as to that class.”); Fleischman v. Albany Med. Ctr., 639 F.3d 28, 30-31 (2d Cir. 2011) (per curiam); In re DC Water & Sewer Auth., 561 F.3d 494, 496-97 (D.C. Cir. 2009); Gutierrez v. Johnson & Johnson, 523 F.3d 187, 194 (3d Cir. 2008); Jenkins v. Bell-South Corp., 491 F.3d 1288, 1291-92 (11th Cir. 2007); Carpenter v. Boeing Co., 456 F.3d 1183, 1191-92 (10th Cir. 2006); McNamara v. Felderhof, 410 F.3d 277, 281 (5th Cir. 2005). By its clear terms Rule 23(f) has no application in the absence of “an order granting or denying class-action certification,” and the only such order here was the district court’s original rejection of the New England class, which was entered many more than fourteen days before Village Market filed its petition. ■

That Village Market planned to seek consideration of the “much narrower” Greater Boston class, rather than “re-liti-gat[ion] [of] the same class of all New England grocers which was previously denied,” as emphasized in its briefing, is no reason to treat the district court’s later order as “granting or denying class-action certification.” What matters is not what Village Market wanted, but what the district court actually did in the order at issue. Otherwise, if a dissatisfied party could reset the clock simply by coming up with a new way of defining a class and having the district court reject it, Rule 23(f)’s strict time limit for seeking interlocutory review of a class-certification decision would be so easily circumvented as to be practically meaningless. See, e.g., DC Water & Sewer Auth., 561 F.3d at 496-97 (“To hold otherwise would leave Rule 23(f)’s deadline toothless.”); Carpenter, 456 F.3d at 1191 (‘We recognize that Rule 23(c)(1)(C) permits the district court to alter or amend a certification decision. And parties may suggest such changes as the factual record and legal theories develop. All we are. saying is that there can be no Rule 23(f) appeal from the denial of such a suggestion. An order that leaves class-action status unchanged from what was determined by a prior order is not an order ‘granting or denying class action certification.’ ”); cfi Fleischman, 639 F.3d at 30-31 (dismissing an attempted appeal by plaintiffs who, like Village Market, unsuccessfully sought certification of a new, narrower class after the district court first refused to certify a broad class on certain issues).

In reaching this conclusion, we express no view on the substantive concerns Village Market raises — particularly the significance of its not having been a party to the case while class-certification was litigated, the logic of making filing (and presumably losing) an appeal from the original denial of certification a prerequisite to trying to cure the defects of the overbroad New England class by proposing a narrower alternative, and the propriety of foreclosing any further consideration of any New England class regardless of how the case develops. Nor do we opine on the availability of other forms of prejudgment relief in light of Village Market’s consistent and exclusive reliance on Rule 23(f) as the vehicle for its challenge here to the district court’s ruling. But we must dismiss this appeal.

B. Intervention

The district court’s ruling on the timeliness of a motion to intervene is reviewed for abuse of discretion. See Am. Civil Liberties Union of Minn. v. Tarek ibn Ziyad Acad., 643 F.3d 1088, 1093 (8th Cir. 2011). In determining the timeliness of a motion to intervene, “the district court should specifically consider: (1) the extent the litigation has progressed at the time of the motion to intervene; (2) the prospective intervenor’s knowledge of the litigation; (3) the reason for the delay in seeking intervention; and (4) whether the delay in seeking intervention may prejudice the existing parties.” Id. at 1094.

We first consider the progression of the litigation. The magistrate judge observed this litigation was fairly advanced because “[t]he parties have briefed and argued motions to dismiss, motions for summary judgment, and motions for class certification; they have engaged in extensive discovery to support those motions; and they have twice argued this case before the Eighth Circuit.” Cf. WaterLegacy v. EPA, 300 F.R.D. 332, 343 (D. Minn. 2014) (highlighting “the parties have engaged in no discovery or motion practice and no proceedings regarding the merits of the litigation have occurred”). This is not necessarily determinative, as an intervention motion is not necessarily untimely even where the “litigation is nearly wrapped up” or where the motion is “post-judgment or even post-appeal.” Tweedle v. State Farm Fire & Cas. Co., 527 F.3d 664, 671 (8th Cir. 2008).

Second, we consider Colella’s knowledge of the litigation, which the parties dispute. This factor often weighs heavily in cases where the would-be inter-venor was aware of the litigation for a significant period of time before attempting to intervene. See, e.g., U.S. Bank Nat’l Ass’n v. State Farm Fire & Cas. Co., 765 F.3d 867, 869-70 (8th Cir. 2014) (noting would-be intervenor knew of litigation for twenty-one months before filing its motion); Tarek ibn Ziyad Acad., 643 F.3d at 1094 (observing potential intervenors knew of suit for fourteen months before filing motion).

Here, the district court observed that “Colella’s counsel has participated in this case since its inception, having served as counsel for DeLuca’s,” but counsel’s knowledge before Colella became a client is not relevant. (Emphasis added). And the magistrate judge proceeded under the impression that “[t]he parties agree that Co-lella’s had knowledge of this litigation long before it moved to intervene.” Colella’s president signed an affidavit averring she “only learned of the existence of the case in October, 2014.” It appears the district court did not consider this affidavit.' Air though we are concerned by this point, appellants in their opening brief do not deny Colella knew about the litigation, and they only explicitly challenge the district court’s failure to address the affidavit in their reply brief. See, e.g., Neb. State Legislative Bd., United Transp. Union v. Slater, 245 F.3d 656, 658 & n.3 (8th Cir. 2001) (“ ‘[C]laims not raised in an initial brief are waived, and we generally do not consider issues raised for the first time on appeal in a reply brief.’ ” (quoting Mahaney v. Warren County, 206 F.3d 770, 771 n.2 (8th Cir. 2000))).

The third factor, the reason for the delay in seeking intervention, is only applicable to the extent Colella was in fact aware of this litigation before it attempted to intervene, as appellees assert and the district court concluded. Even some of appellants’ arguments with respect to this prong of the analysis seem to accept the premise that Colella was long aware of the litigation. Colella moved to intervene on October 24, 2014, ánd appellants assert it could not reasonably have done so sooner. The district court agreed the pending appeal prevented Colella from pursuing intervention between February 2013 and August 2014, but decided “Colella’s fail[ed] to provide a convincing reason for not intervening before February 2013.”

Appellants explain Colella had no reason “to intervene before the [summary judgment order] went up on appeal in February, 2013. To the contrary, until the case was dismissed, [Colella’s] rights were fully protected by the existing class action in which New England representatives sought to represent all New England retail grocers.” (Citation omitted). But appellants do not adequately explain why Colel-la thought its interests were protected from July/August 2012 to February 2013. The New England class certification was denied in July 2012, and in August 2012, D&G asked for permission to certify a narrower class of Midwest plaintiffs. By August 2012, the district court explained, “there was absolutely no doubt that D&G was not serving as class plaintiff for retailers in New England.” Appellants point out DeLuca participated in the summary judgment proceedings, but once class certification had been denied, DeLuca was acting as an individual plaintiff. As appellees argue, “[o]nce the district court denied certification, ‘the putative class members had no reason to assume that their rights were being protected.... [T]hey were notified that they were no longer parties to the suit and they should have realized that they were obligated to file individual suits or intervene in the action.’ (Quoting Taylor v. United Parcel Serv., Inc., 554 F.3d 510, 520 (5th Cir. 2008)).

Fourth, we consider the potential prejudice to appellees if Colella is permitted to intervene, a factor the district court concluded “disfavors intervention.” According to appellants, “[a]dding Colella’s to the litigation will entail comparatively trivial time and expense” because “the Defendants have all of Colella’s records of past dealings, including full transactional records” and “Colella’s will provide no new theories to the case.” Cf. Tarek ibn Ziyad Acad., 643 F.3d at 1094-95 (explaining introduction of a new legal theory could support a finding of prejudice). Colella points out it “is bound by the prior rulings and discovery,” including the future discovery schedule, “so this Court’s and the District Court’s rulings on summary judgment and discovery do not have to be revisited.”

Ultimately, we are unpersuaded by appellants’ argument that the district court abused its discretion in determining Colel-la’s motion to intervene was untimely. Although we are concerned by the district court not explicitly addressing Colella’s affidavit concerning its knowledge of the litigation, Colella’s incomplete explanation about its knowledge of the litigation and its reason for any delay leaves us with more questions than answers. We affirm the district court’s denial of Colella’s motion to intervene as not an abuse of discretion.

III. CONCLUSION

Village Market’s appeal is dismissed. The judgment of the district court is affirmed.

COLLOTON, Circuit Judge,

concurring in the judgment.

I concur in the dismissal of Village Market’s appeal for lack of jurisdiction. Alternatively, even treating Village Market’s appeal as a petition for writ of mandamus, I would deny relief. For the reasons stated in the separate opinion in No. 15-1786, Millennium Operations, Inc. v. SuperValu, Inc., Village Market should be compelled to arbitrate its dispute with Sup'erValu pursuant to the arbitration agreement between the parties. The district court thus did not err in declining to permit Village Market to seek certification of a class in federal court.

Although I doubt that the motion of Colella’s Supermarket, Inc., to intervene was untimely, once Village Market is compelled to arbitrate its dispute with Super-Valu, Colella’s is not entitled to intervene in this action. With Village Market directed to arbitrate, Colella’s has no interest relating to the transaction which is the subject of the remaining action, and disposition of the remaining action would not impair or impede Colella’s ability to protect its interest. See Fed. R. Civ. P. 24(a). Colella’s is free to pursue its claim against SuperValu in a separate action.

For these reasons, I concur in the judgment.

      . The Honorable Ann D. Montgomery, United States District Judge for the District of Minnesota.

      . We have appellate jurisdiction of Colella's appeal under 28 U.S.C. § 1291. See also Am. Civil Liberties Union of Minn. v. Tarek ibn Ziyad Acad., 643 F.3d 1088, 1092 n.2 (8th Cir. 2011) ("The district court's order denying the ... motion to intervene of right is immediately appealable as a final judgment.”). We address our lack of authority to hear Village Market’s appeal below. We need not decide whether the relevant time limit is jurisdictional or could have been forfeited, because in this case it was timely raised and preserved. Cf., e.g., Coco v. Inc. Vill. of Belle Terre, 448 F.3d 490, 491-92 (2d Cir. 2006) (per curiam) (reserving the question in similar circumstances).

      . Meanwhile, the issue of the Arbitration Subclasses was back before the district court on remand. The district court rejected two alternative theories offered by the wholesalers in support of their motion to dismiss the Arbitration Subclasses, and the wholesalers appealed again. In a separate opinion, we affirmed.

      . We are not bound by the summary decision of an administrative panel of this court to grant Village Market's petition and docket its appeal. See In re Rodriquez, 258 F.3d 757, 758-59 (8th Cir. 2001) (per curiam).

      . Colella was not a member of the New England Arbitration Subclass, which would have prevented it from moving to intervene until our February 2013 opinion reinstated the Arbitration Subclasses.

      . Appellees insist "it [also] borders on preposterous for Colella's counsel, who also represented DeLuca's, to argue that he was unaware until after the appellate deadline expired whether his own client would continue to pursue class certification or appeal from the judgment against it.” Also questionable is appellants’ insistence that D&G's notice of appeal from the summary judgment order did not "sen[d] a clear signal that [Co-lella’s] legitimate interests on appeal — those relating to summary judgment — were not protected.” Appellants contend D&G’s counsel was appointed as lead counsel for the entire case. There were three co-lead counsel, which included D&G's counsel and De-Luca’s counsel.


source: Caselaw Access Project

author: RILEY, Chief Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee v. Inmar HERNANDEZ-PINEDA, Defendant-Appellant United States of America, Plaintiff-Appellee v. Inmar Hernandez-Pineda, Defendant-Appellant
    No. 16-1004, No. 16-1007
    United States Court of Appeals, Eighth Circuit.
    Submitted: October 17, 2016
    Filed: March 1, 2017

      Counsel who represented the appellant was Bradley Ryan Hansen, AFPD, of Sioux City, IA.
    Counsel who represented the appellee was Kevin Craig Fletcher, AUSA, of Sioux City, IA.
    Before RILEY, Chief Judge, WOLLMAN and BENTON, Circuit Judges.
   RILEY, Chief Judge.

This case is about whether Inmar Hernandez-Pineda’s ten-year sentence for illegally reentering the United States, see 8 U.S.C. § 1326(a), (b)(2), was reasonable. It is also, incidentally, about the dangers of running with knives. On the legal issue, we hold the sentence was within the district court’s discretion. The second point speaks for itself.

I. BACKGROUND

In late spring 2015, Hernandez-Pineda and Elim Eseobar-Alvira tried to hold up a bakery in Sioux City, Iowa. Eseobar-Alvira brought an unloaded sawed-off shotgun, Hernandez-Pineda carried a butcher knife. Things did not go well. While a bakery employee disarmed Escobar-Alvira and briefly wrestled him to the ground, Hernandez-Pineda bolted. On his way out, Hernandez-Pineda ran into the door and stabbed himself in the stomach. By the time Escobar-Alvira got up, Hernandez-Pineda was gone, along with their getaway van. Both perpetrators were caught within an hour, and Hernandez-Pineda was taken to the hospital for emergency surgery.

The botched robbery brought Hernandez-Pineda, a citizen of El Salvador who had been removed from the United States twice before, to the attention of federal immigration authorities. Hernandez-Pine-da eventually pled guilty to unlawful reentry in exchange for the government agreeing not to take a position on whether his various sentences should run concurrently or consecutively. He also admitted the reentry and robbery were violations of the terms of his supervised release for a 2013 illegal-reentry conviction.

At a combined sentencing and revocation hearing, the district court acknowledged the uncontested United States Sentencing Guidelines (Guidelines) advisory range for the illegal reentry was 33 to 41 months. Because Hernandez-Pineda’s original removal had followed an “aggravated felony” conviction — second-degree theft, for stealing a van and driving to Las Vegas, see Iowa Code § 714.2(2) — the statutory maximum was twenty years. See 8 U.S.C. § 1326(b)(2). The government asked for half that, presenting evidence of the circumstances of the robbery, Hernandez-Pineda’s gang membership, and the many other crimes he had previously committed. Hernandez-Pineda conceded “there are certainly aggravating factors in the case,” but argued they were mitigated by other considerations. He emphasized that he was brought to the United States as a toddler and has known no other home, virtually his entire family lives in Iowa, and he faced a substantial risk of violence in El Salvador, all of which arguably helped explain, if not justify, his decision to return to the United States. He also pointed out that an Iowa state court had already sentenced him to fifteen years on counts arising out of the robbery itself, so he would be serving a significant prison term regardless of how the district court ruled in this case.

The district court agreed with the government and varied upward to 120 months, listing the following reasons:

The serious -nature of the defendant’s criminal conduct, the escalating nature of the defendant’s criminal conduct, the repetitive nature .df the defendant’s criminal conduct, the fact that he’s been to prison, he doesn’t seem to have learned anything and gets out and then commits an even more serious offense than any of the offenses that caused him to go to prison.

The district court alson-evoked Hernandez-Pineda’s supervised release and sentenced him to 24 months for the admitted violations. The district court made half of each federal sentence — that is, six years total— consecutive, with the other halves to run concurrently with each other and the state sentences. See 18 U.S.C. § 3584(a). Hernandez-Pineda filed appeals from both sentences, which we consolidated for review, see 28 U.S.C. § 1291 (appellate jurisdiction), yet Hernandez-Pineda now focuses on the 120 months he received for the illegal reentry.

II. DISCUSSION

We review sentences for abuse of discretion. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Hernandez-Pineda argues the district court abused its discretion by either failing to consider the factors that supported a shorter sentence — namely “the young age at which [he] came to the United States, the presence of his family in the United States, and his lengthy state prison sentence” — or committing a clear error of judgment in doing so. See United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc).

Hernandez-Pineda presented his mitigating circumstances to the district court both in his sentencing memorandum and orally at the hearing. We are satisfied the district court did not ignore them. Cf. United States v. Keating, 579 F.3d 891, 893 (8th Cir. 2009) (“[Wjhere the district court heard argument from counsel about specific [18 U.S.C.] § 3553(a) factors, we may presume that the court considered those factors.”). Prompted by Hernandez-Pineda’s oral argument, the district court asked about how much of the state sentence he would likely serve before being up for parole, and the district court then made the federal sentence partially concurrent with the state sentence, clearly demonstrating an. understanding of Hernandez-Pineda’s concerns about the total prison time he faced. In explaining the sentence and upward variance, the district court repeatedly expressed its view that Hernandez-Pineda’s recidivism “far, far, far outweigh[ed] any mitigating factors,” again reflecting an awareness and consideration — and, in this case, rejection — of Hernandez-Pineda’s arguments for leniency.

The sentence was not substantively unreasonable either. True, the contrast between what the district court imposed and the Guidelines recommendation is sharp— 120 months is almost triple the high end of the advisory range. But the circumstances of this case plainly supported a long term of imprisonment, and even Hernandez-Pineda acknowledged “there are certainly aggravating factors in th[is] case.” And the district court offered a detailed “ ‘individualized assessment’ ” and explanation of why it considered the sentence appropriate, Feemster, 572 F.3d at 461 (quoting Gall, 552 U.S. at 50, 128 S.Ct. 586), specifically focusing on Hernandez-Pineda’s personal “history and characteristics” and the need “to protect the public from further crimes,” 18 U.S.C. § 3553(a)(1), (2)(C), in light of his “nonstop” and “escalating” criminal activity. Supported by that explanation, the 120-month sentence here, while perhaps unusually long, was not an abuse of discretion. Cf. Feemster, 572 F.3d at 461-62 (explaining “we ‘may consider the extent of the deviation,’ ” but “may not require ‘ “extraordinary” circumstances to justify a sentence outside the Guidelines’ and are prohibited from ‘the use of a rigid mathematical formula that uses the percentage of a departure as the standard for determining the strength of the justifications required for a specific sentence’ ” (quoting Gall, 552 U.S. at 47, 51, 128 S.Ct. 586)).

III. CONCLUSION

Hernandez-Pineda’s sentence is affirmed.

      . The Honorable Mark W. Bennett, United States District Judge for the Northern District of Iowa.

      . The passing references to the revocation séntence in Hernandez-Pineda's brief are not enough to raise an issue on appeal. See, e,g„ United States v. Sigillito, 759 F.3d 913, 933 (8th Cir. 2014); see also Fed. R. App. P. 28(a)(8)(A). In any event, 24 months was the low end of the uncontested advisory Guidelines range (albeit also the statutory maximum, see 18 U.S.C. § 3583(e)(3)), and we perceive no abuse of discretion in the sentence. See United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (standard of review).

      . We are not swayed by Hernandez-Pineda’s citation — for the first time on appeal — to a report noting that in fiscal year 2013 "virtually all illegal reentry offenders ... were sentenced at or below” ten years. U.S. Sentenc-mg Comm'n, Illegal Reentry Offenses 10 (2015). A statistic about the rarity of sentences longer than Hernandez-Pineda’s tells us next to nothing about how many defendants receive sentences the same length as his, particularly given that ten years is the maximum authorized sentence for illegal reentry in many cases, see 8 U.S.C. § 1326(b)(1), (3), (4). Nor do we have any way of knowing how the backgrounds of the defendants who received lighter sentences compared to the extensive and rapidly acquired criminal history of Hernandez-Pineda that the district court described as "escalating” and found exceptional enough to justify a significant upward variance for Hernandez-Pineda in this case. See 18 U.S.C. § 3553(a)(6) (recognizing “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct” (emphasis added)).


author: SHEPHERD, Circuit Judge.

text:
    Leonard N. ANDERSON; Carol D. Berg; Carol D. Berg LLC, Plaintiffs-Appellants, v. CITY OF ST. PAUL, MINNESOTA, a Minnesota Charter City; Steven Magner, both individually and in his official capacity as an employee of the City of St. Paul, Minnesota; Kathy Lantry; Melvin Carter; Dave Thune; Pat Harris; Russ Stark; Lee Helgen; Don Bostrom, both individually and in their capacities as members of the City Council of the City of St. Paul; Kamish Excavating, Inc., a Minnesota corporation, Defendants-Appellees.
    No. 16-1661
    United States Court of Appeals, Eighth Circuit.
    Submitted: November 16, 2016
    Filed: March 1, 2017

      Counsel who represented the appellant' was Frederic W. Knaak of Saint Paul, MN.
    Counsel who represented the appellee was Judith Ann Hanson, of Saint Paul, MN., Nathan John Knoernschild of Minneapolis, MN.
    Before BENTON and SHEPHERD, Circuit Judges, and STRAND, District Judge.

      . The Honorable Leonard T. Strand, United States District Judge for the Northern District of Iowa, sitting by designation.

   SHEPHERD, Circuit Judge.

Leonard Anderson appeals the district court’s order dismissing his federal and state law claims arising from a nuisance abatement carried out on his land. For the reasons discussed below, we affirm.

I.

Mr. Anderson owns a 2.3-acre lot in St. Paul, Minnesota where he collects and stores, among other things, vehicles, trailers, commercial • storage units, barrels, boats, and broken lawn mowers. Branding the collection a public nuisance, the City of St. Paul has tried for years to make Mr. Anderson clean up his lot. Indeed, this appeal is only the latest development in an ongoing struggle between Mr. Anderson and the city, one that has spawned property inspections, nuisance abatements, city council hearings, and now both state and federal lawsuits.

Just before Christmas 2011, the city issued a “notice to proceed with nuisance abatement” instructing city contractor Kamish Excavation to remove and dispose of various items of personal property stored on Mr. Anderson’s lot. A month earlier, the city had ordered Mr. Anderson to cure the nuisance on his own and warned him that failure to do so could lead to an abatement by the city. Mr. Anderson did not cure the nuisance but appealed to the city council. When he failed to attend his legislative hearing, the council denied the appeal but granted an extension for Anderson to clean up the nuisance himself. The deadline arrived and the nuisance remained, so Kamish, in accordance with the city’s instructions, entered Anderson’s land and completed the abatement. Mr. Anderson promptly sued the city and two of its officials in the Ramsey County District Court, alleging violations of the Fifth and Fourteenth Amendments to the United States Constitution, along with state constitutional claims, trespass, and conversion. In addition to Mr. Anderson, the plaintiffs were Anderson’s long-term companion Carol Berg and her business, Berg LLC. Ms. Berg and Berg LLC were included partly because one of the items removed from Mr. Anderson’s property, a commercial shipping container, belonged to Berg LLC. The trial court granted the defendants’ motion for summary judgment on all claims and entered final judgment against the plaintiffs. The Minnesota Court of Appeals affirmed, and the Minnesota Supreme Court denied review.

Unsuccessful in state court, Anderson, Berg, and Berg LLC (collectively, Appellants) next filed suit in the United States District Court for the District of Minnesota, again challenging the 2011 abatement. They named the city, a city employee, seven city counselors, and the city contractor as defendants. The complaint alleged violations of the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution, as well as state constitutional claims, conversion, negligence, and violations of the Minnesota Government Data Practices Act. The district court held that claim preclusion prevents the Appellants from relitigating their federal claims arising from the 2011 abatement because those claims already were or could have been adjudicated in the 2012 state court action. In doing so the district court rejected Anderson’s argument that his federal claims are for “continuing wrongs,” that is, failure to return the abáted property, which Anderson claimed did not occur until after the state litigation ended. The court noted that Anderson’s federal complaint did not raise a continuing wrong claim and, even if it had, the claim would fail because it does not allege ongoing conduct but rather ongoing harm — interrupted use of property — which could have been redressed by the state court had Anderson prevailed. Having disposed of the federal claims arising from the 2011 abatement, the' district court declined to exercise supplemental jurisdiction over the remaining state law claims and dismissed the case.

II.

A district court’s grant of a motion to dismiss is reviewed de novo, with all reasonable inferences construed in favor of the nonmovant. E-Shops Corp. v. U.S. Bank Nat’l Ass’n, 678 F.3d 659, 662 (8th Cir. 2012).

Minnesota law governs the pre-clusive effect of a prior Minnesota state court judgment. See Restatement (Second) of Judgments § 86 (“A valid and final judgment of a state court has the same effects under the rules of res judicata in a subsequent action in a federal court that the judgment has by the law of the state in which the judgment was rendered.... ”); see also Hillary v. Trans World Airlines, Inc., 123 F.3d 1041, 1043 (8th Cir. 1997) (“[T]he res judicata effect of the first forum’s judgment is governed by the first forum’s law, not by the law of the second forum.”) (internal quotation marks omitted). Under Minnesota’s claim preclusion doctrine (also known as “res judicata”), claims that were or could have been adjudicated by a court of competent jurisdiction cannot be relitigated in another court. Hauschildt v. Beckingham, 686 N.W.2d 829, 837 (Minn. 2004). The doctrine “applies as an absolute bar to a subsequent claim when (1) the earlier claim involved the same set of factual circumstances; (2) the earlier claim involved the same parties or their privies; (3) there was a final judgment on the merits; [and] (4) the estopped party had a full and fair opportunity to litigate the matter.” Id. at 840. Applying these elements to the case at hand, we hold that Appellants’ federal action challenging the 2011 nuisance abatement is precluded by the summary judgment granted in the Ramsey County District Court and affirmed by the Minnesota Court of Appeals. Accordingly, we affirm.

A. Same Set of Factual Circumstances

“The common test for determining whether a former judgment is a bar to a subsequent action is to inquire whether the same evidence will sustain both actions.” Id. at 840-41 (internal quotation marks omitted). It follows that, if facts giving rise to a claim in the second action did not occur until after the first action terminates, claim preclusion would not bar the subsequent claim. See Mach v. Wells Concrete Prods. Co., 866 N.W.2d 921, 925 (Minn. 2015) (“Claims are not considered the same cause of action if the right to assert the second claim did not arise at the same time as the right to assert the first claim.”) (internal quotation marks omitted). Appellants argue that their federal complaint “was entirely based on a new set of facts occurring after the dismissal of the [state court suit].” Though not a model of clarity on this point, Appellants’ brief indicates that, while litigating in state court, Appellants did not and could not have known that city employees retained Mr. Anderson’s abated property for personal use. These recently discovered facts, according to Appellants, gave rise to two new claims- — never before litigated in any court — -that the abated property “was fraudulently concealed and part of a continuing violation.”

The supposedly new facts and causes of action that Appellants argue enable their federal suit to survive are visibly absent from their federal complaint. Indeed, neither fraudulent concealment nor continuing tort are stated as bases for relief, and no facts are set forth suggesting that Ap-pellees’ conduct satisfied either of the unstated claims. Rather, as the district court observed, at its core this litigation challenges the taking and destroying, not the concealing or retaining, of the property removed from Mr. Anderson’s land. For instance, the complaint specifically asks for a finding that (1) “no authority existed ... that would allow for the destruction of personal property in the manner Defendants destroyed the personal property of the Plaintiffs”; and that (2) the Defendants’ actions “permanently deprived Plaintiffs of their personal property.” Because the federal complaint does not identify any new facts that would support fraudulent concealment or continuing tort, we fail to see how those claims distinguish present from prior proceedings in any meaningful manner.

In sum, the relevant factual circumstances of the former and current actions are those surrounding the December 22, 2011 nuisance abatement carried out on Mr. Anderson’s property. The record does not point to a single factual development that occurred after the state court litigation ended. We therefore conclude that both actions involve the same set of facts.

B. Same Parties or Privies

Four of the thirteen parties to the current action were also parties to the state suit: Anderson, Berg, and Berg LLC as plaintiffs, and the City of St. Paul as a defendant. As to the seven city counselors and city contractor Kamish Excavating, who were not parties in state court, Appellants’ counsel has expressly conceded that those defendants are in privity with the city. Mot. Hr’g Tr. 11-12, Sept. 16, 2015, ECF No. 94. The only remaining party is Steven Magner, the city manager of code enforcement who, according to Appellants’ complaint, supervised the abatement on Mr. Anderson’s property in 2011. Thus, we must determine whether Mr. Magner is in privity with a party to the prior state court action.

Privity exists where a non-party’s “interests are represented by a party to the action,” or where a party is “otherwise so identified in interest with another that he represents the same legal right” with respect to a previously asserted claim. Rucker v. Schmidt, 794 N.W.2d 114, 118 (Minn. 2011) (internal quotation marks omitted). It is not enough that two individuals both wish to prevail in litigation; their legal interests must be aligned to the point of being “similarly affected by the outcome of a legal proceeding.” Id. at 120. The Minnesota Supreme Court has emphasized that privity has no per se definition and that privity determinations “require[] a careful examination of the circumstances of each case.” Id. at 118.

The district court concluded that Minnesota law generally recognizes privity between the government and its employees. In support, the court cited Vizenor v. Hoffman, an unpublished decision from the Minnesota Court of Appeals. No. A070646, 2008 WL 933480, at *3 (Minn. Ct. App. Apr. 8, 2008). Though we do not adopt the district court’s generalization regarding employer-employee privity, we find the facts and analysis of Vizenor instructive to our determination that Mr. Magner and the City of St. Paul are in privity. Vizenor involved a challenge to a taking and forfeiture of the plaintiffs personal property by county deputies. Id. at *1. The plaintiff first sued the county and, after settling those claims, initiated a second suit against the sheriffs department and the two deputies involved in the property, seizure. Id. at *1, *3. In finding that the deputies, as county employees, were in privity with the county, the court noted that the deputies’ “interests were affected by the [prior lawsuit] because it was their job to seize the property and carry out the forfeiture.” Id. at *3.

Like the deputies in Vizenor, Mr. Mag-ner is a government actor charged with enforcing provisions of the city code. It was his job to order the city contractor to carry out the nuisance abatement on Mr. Anderson’s land, and his interests were therefore affected by the prior suit challenging that abatement. As a result, Mr. Magner is in privity with the City of St. Paul. See Rucker, 794 N.W.2d at 120.

C. Final Judgment on the Merits

The Ramsey County District Court granted summary judgment against Anderson, Berg, and Berg LLC and entered judgment accordingly. “It is well established that summary judgment is a final judgment on the merits for purposes of res judicata.” Dicken v. Ashcroft, 972 F.2d 231, 233 n.5 (8th Cir. 1992). Accordingly, there was a final judgment on the merits in the prior litigation.

D. Full and Fair Opportunity to Litigate the Matter

“The question of whether a party had a full and fair opportunity to litigate a matter generally focuses on whether there were significant procedural limitations in the prior proceeding, whether the party had the incentive to litigate fully the issue, or whether effective litigation was limited by the nature or relationship of the parties.” State v. Joseph, 636 N.W.2d 322, 328 (Minn. 2001) (internal quotation marks omitted). According to Appellants’ brief, “Leonard Anderson has never had an opportunity to challenge the constitutionality of St. Paul’s nuisance abatement ordinance.” This assertion is belied by. the state court record. Appellants’ complaint to the Ramsey County District Court specifically requested a declaratory judgment that the defendants’ “actions, customs, and policies ... have violated the United States and Minnesota Constitutions.” Both the trial court and the state court of appeals analyzed the state and federal constitutionality of the defendants’ conduct and determined that the plaintiffs were not entitled to relief. While Appellants may object to the outcome of the state court proceedings, “a litigant’s disagreement with a legal ruling does not necessarily mean that the court denied the litigant a full and fair opportunity to litigate a matter.” Joseph, 636 N.W.2d at 329.

The record reveals no barriers to Appellants’ ability or incentive to challenge the 2011 nuisance abatement in Minnesota’s state courts. We therefore conclude that Appellants had a full and fair opportunity to litigate this matter in the prior action.

III.

We hold that Appellants’ claims arising from the 2011 nuisance abatement on Mr. Anderson’s land are precluded under the doctrine of claim preclusion. Accordingly, the district court’s order dismissing those claims is affirmed.

      . The Honorable Patrick J. Schiltz, United States District Judge for the District of Minnesota.

      . The federal complaint also challenged a separate nuisance abatement that occurred in 2010, although this appeal involves only the 2011 abatement. Litigation surrounding the 2010 abatement has its own convoluted procedural posture. Anderson first challenged the 2010 abatement order in a legislative hearing before the St. Paul City Council. When he failed, he appealed to the Ramsey County District Court. The court dismissed for lack of jurisdiction, concluding that the city council’s decision was quasi-judicial and therefore ap-pealable only to the Minnesota Court of Appeals. Anderson then appealed to that court, seeking a writ of certiorari requiring the district court to review the city council’s decision. The appeals court refused to issue the writ, instead affirming both the abatement order as well as the district court’s jurisdictional decision. Anderson v. City of St. Paul, No. A09-1269, 2010 WL 1850648 (Minn. Ct. App. May 11, 2010). The Minnesota Supreme Court denied review.

      . The Minnesota Supreme Court has indicated that privity is not established by virtue of an employment relationship alone. Kaiser v. N. States Power Co., 353 N.W.2d 899, 904 (Minn. 1984).


text:
    Thomas NASH, Plaintiff-Appellant v. OPTOMEC, INC., Defendant-Appellee
    No. 16-2186
    United States Court of Appeals, Eighth Circuit.
    Submitted: October 20, 2016
    Filed: March 1, 2017

      Counsel who presented argument on behalf of the appellant and appeared on the brief was Stephen Charles Fiebiger, of Burnsville, MN.
    Counsel who presented argument on behalf of the appellee was Andrew E. Tanick, of Minneapolis, MN. The following attorney also appeared on the appellee brief; David P. McKinney, of Minneapolis, MN.
    Before RILEY, Chief Judge, LOKEN and BENTON, Circuit Judges.
   RILEY, Chief Judge.

Thomas Nash filed suit against Opto-mec, Inc., alleging the company fired him on account of his age in violation of the Minnesota Human Rights Act (MHRA), Minn. Stat. §§ 363A.01, et seq. The- district court granted Optomec’s motion for summary judgment, finding Nash failed to establish a prima facie case of age discrimination, and even if he had, there was insufficient evidence to suggest the lawful reason Optomec gave for its decision was pretext for an underlying unlawful motive. Nash appeals, see 28 U.S.C. § 1291 (appellate jurisdiction), and we affirm.

I. BACKGROUND

In fall 2011, Nash enrolled in the nanos-cience technology program at Dakota County Technical College (Dakota Tech). Some time later, Nash and his classmates toured Optomec’s advanced applications lab in St. Paul, Minnesota, which develops 3-D printing systems. Nash needed to complete an internship in order to. finish his program, and after the tour, he decided to pursue one with Optomec. Two interviews later, John Lees, Optomec’s then-49-year-old Vice President of Engineering, offered Nash a full-time paid internship for the summer and fall of 2013. The offer did not contain any guarantee of post-internship employment, nor did either party have that understanding. Nash was 54 years old when he was offered and accepted the position.

During his tenure at Optomec, Nash’s duties included taking measurements, recording data, and operating and maintaining the lab equipment. Nash performed these duties alongside three interns:. Travis Evans, Chenxing Pei, and Dan Bakke, each of whom was an engineering student at the University of Minnesota and in his early twenties. Nash claims Lees began exhibiting a “pattern of preference” for these younger interns almost immediately. According to Nash, he received the “cold shoulder” from Lees, while Evans was sent on expenses-paid, work trips and Pei made $2 more per hour than he did. Notably, neither Pei nor Bakke were ever sent on work trips, and Evans and Bakke both made $16 per hour just as Nash.

Nash’s internship ended in December 2013. Despite believing he was treated less favorably than his peers, Nash described his experience positively in post-internship reports to Dakota Tech. Nash also felt he was “very well prepared” for the internship and gave himself high marks in various performance-related categories for his self-assessment. In comparison, the district court accurately summarized Opto-mec’s evaluation of Nash as “fairly tepid.” Though commending his spreadsheet skills and “much appreciated discipline and rig- or,” Lees noted that tasks requiring “physical skill or dexterity” were difficult for Nash and “Understanding and troubleshooting systems [was] also a bit beyond him.” Lees expressed his belief that “[previous interns had more learning potential.”

When Nash received his associates degree from Dakota Tech he immediately inquired about a permanent position with Optomec. Lees spoke with John Wright, an engineer at Optomec, about the idea of hiring Nash. Wright, age 52, echoed Lees’s concerns: Nash “wasn’t a particularly skilled technician” and “required very specific instructions and step-by-step instructions on how to complete a task.” But despite Wright’s criticism and his own apprehension, Lees offered Nash a full-time position. Nash, now 55 years old, accepted and began work as an at-will employee in January 2014.

As Optomec’s lone full-time lab technician, Nash worked on several projects over the following months that he claims demonstrated his hard work, value, and skill. Still, according to Nash, Lees continued to treat the younger interns more favorably in many of the same ways he had during Nash’s internship. For example, Evans continued to be sent on work trips that “gave him troubleshooting and teamwork experiences not offered to Nash.” Nash felt “humiliated” when Lees “went to great lengths to highlight his concern to other employees” about Bakke’s exposure to hazardous chemicals after a lab spill in April 2014. Lees expressed no such concern about Nash’s exposure despite the fact Nash, not Bakke, led the cleanup effort.

As Nash’s concerns were apparently mounting, so too were Optomec’s. By May 2014, Nash had amassed a considerable amount of experience, but his abilities had not grown like Wright and Lees had hoped. According to Wright, Nash “did well at following explicit instructions, but when you asked him to step back and maybe look at things [ ]holistically, he struggled with putting that all together.” Lees agreed, and believed “[Nash] was not — not progressing beyond the kind of basic lab skills.... [S]ome of the issues with his performance were not getting better.” Nash’s struggles with troubleshooting and critical thinking were an even bigger problem when Lees began to look ahead: “The business was growing. There was going to be a need to support more customers. We needed just a higher level of functionality across the board on the team.” This realization led Lees to change his views as to what he wanted from lab technicians — he now considered it “a way to bring people into the technology” in hopes they would “grow and progress beyond that point.” To Lees, Nash had not exhibited the capacity to “take it to that next level.” Lees shared his concerns with David Ramahi, Optomec’s Chief Executive Officer, who left the decision up to Lees, but encouraged him to “be decisive and take action.”

Lees fired Nash on June 6, 2014, less than six months after he had hired him. Lees told Nash the decision “was not performance related,” but that the company was going in a “different direction.” The parties dispute exactly what happened next, yet both sides agree Nash was upset and the situation became tense as Nash complained about the lack of warning and claimed he was being discriminated against. A few days later, Nash exercised his right under Minnesota law to request a letter from Optomec explaining why he was fired. See Minn. Stat. § 181.933, sub-div. 1. In its response, Optomec noted Nash’s performance was “satisfactory in terms of performing more menial tasks,” but ultimately explained he “unfortunately •[did] not possess the full breadth of skills required to successfully meet the challenges required of [his] position,” like independent troubleshooting.

Nash filed an administrative charge with the Minnesota Department of Human Rights, which found no probable cause to believe unlawful discrimination occurred and issued him a right-to-sue letter. Nash filed suit against Optomec for age discrimination in violation of Minn. Stat. § 363A.08, subdiv. 2(2). After discovery, the district court granted Optomec’s motion for summary judgment, deciding Nash failed to establish his prima facie case under the familiar McDonnell Douglas burden-shifting analysis. The district court bolstered its decision by finding that even if Nash could satisfy his initial burden, “Optomec has proffered a legitimate, nondiscriminatory reason” and there was insufficient evidence “to create a genuine issue of fact as to pretext.” Nash appeals.

II. DISCUSSION

“We review the district court’s grant of summary judgment de novo and may affirm on any basis supported by the record.” Tenge v. Phillips Modern Ag Co., 446 F.3d 903, 906 (8th Cir. 2006). We view the evidence in the light most favorable to Nash, see Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc), and will affirm the dismissal only if “there is no genuine dispute as to any material fact,” Fed. R. Civ. P. 56(a). But if the record taken as a whole “‘could not lead a rational trier of fact to find for [Nash], there is no genuine issue for trial’ ” and summary judgment was proper. Torgerson, 643 F.3d at 1042 (quoting Ricci v. DeStefano, 557 U.S. 557, 586, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009)).

The MHRA prohibits an employer from discharging an employee “because of ... age.” Minn. Stat. § 363A.08, subdiv. 2(2). With few exceptions, “[w]e analyze MHRA claims using the same standards we apply to claims under the federal Age Discrimination in Employment Act [ (ADEA) ].” Chambers v. Travelers Cos., 668 F.3d 559, 566 (8th Cir. 2012). See generally 29 U.S.C. §§ 621, et seq. Opto-mec provided a non-discriminatory reason for firing Nash and “[t]he record was fully developed in the district court ... so we may turn directly to the question whether [Nash] has presented sufficient evidence to raise a genuine issue for trial on the ultimate question of age discrimination vel non.” Noreen v. PharMerica Corp., 833 F.3d 988, 992 (8th Cir. 2016).

We begin by noting our agree-' ment with the district court that “[t]he fact that Evans and Bakke might have assumed Nash’s duties for a short time does not suggest that age played a part in Nash’s termination.” Although replacement by substantially younger employees may allow for an inference of discrimination, the “important datum” is the age of Nash’s permanent replacement, Lewis v. St. Cloud State Univ., 467 F.3d 1133, 1136-37 (8th Cir. 2006), and here there simply was none. Even if we accept Nash’s position that his duties went exclusively to Evans and Bakke — which requires ignoring Nash’s admission that he does not know who assumed his duties and Wright’s (age 52) testimony that he had to “pick up” most of them — such workload redistribution was temporary. That Nash was terminated around the time Evans and Bakke returned to full-time status does not change the fact their internships were scheduled to (and indeed, did) end in August 2014.

Moving on, the overarching reason Optomec gave for firing Nash was that he lacked the skill set and potential Optomec wanted from lab technicians to account for the company’s anticipated growth. Nash argues this explanation has “no basis in fact” because his shortcomings (e.g., independent troubleshooting) were not part of his job description or ever asked of him. This argument misses the point. As the district court recognized, it was the company’s “vision for the future of the lab technician position, and Nash’s inability to fit that vision, that led to his dismissal.” We are not convinced by Nash’s suggestion that this is a “similar situation” to Gaworski v. ITT Commercial Finance Corp., 17 F.3d 1104, 1110 (8th Cir. 1994), where we questioned the employer’s claim that it fired the plaintiff for inferior computer skills. There, the employer did not tell the plaintiff that it considered computer skills “ ‘critical’ ” even though the plaintiff had demonstrated an “ability to grasp new concepts” and the employer admitted that, if asked, the plaintiff probably could have learned the computer system. Id Conversely, here Optomec noted from the very beginning and throughout litigation its belief both that Nash lacked the ability to adequately troubleshoot issues and that he exhibited little ability to progress and acquire new skills. There is no evidence to suggest Optomec failed to notify Nash — an at-will employee and not entitled to any advance warning under company policy— of his alleged deficiencies “for fear that he might correct them.” Ryther v. KARE 11, 108 F.3d 832, 841 (8th Cir. 1997) (en banc). To the contrary, Optomec hired Nash despite these shortcomings in hopes that he would correct them, but he did not.

Nash next argues Optomec changed its explanation in a way that suggests an underlying discriminatory animus. It is true an employer’s shifting explanation can be probative of discriminatory motive, but our case law is clear the change must be “ ‘substantial.’ ” Johnson v. Securitas Sec. Servs. USA, Inc., 769 F.3d 605, 613 (8th Cir. 2014) (en banc) (quoting Bone v. G4S Youth Servs. LLC, 686 F.3d 948, 957 (8th Cir. 2012)). Nash tries to construct a “substantial difference” by contrasting Lees’s initial statement that the decision “was not performance related” with the subsequent letter from Optomec’s corporate counsel explaining Nash lacked “the full breadth of skills required to successfully meet the challenges required” of his position. We do not consider this a substantial change when, as here, various employees explain or elaborate on the decision to fire the plaintiff in ways that are slightly different, but nonetheless consistent with the overall reason stated by the employer. See id. We are satisfied every explanation in the record fits with the general notion that, although Nash’s performance was “satisfactory in terms of performing more menial tasks,” Optomec believed he lacked the skills or capacity to “grow” alongside the company and fill their anticipated needs.

Nash also contends Lees exhibited favoritism towards the younger interns, but the district court’s well-reasoned opinion correctly characterized Nash’s evidence as “ ‘weak and not probative of discrimination.’ ” (Quoting Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 359 (3d Cir. 1999)). True, Nash was never afforded the opportunity to travel on Optomec’s behalf as Evans was, but neither was Pei or Bakke, and there is no reason to discredit the unrebutted testimony that Lees sent Evans because of his superior experience, skill, and success with previous trips. Cf. Torgerson, 643 F.3d at 1051 (noting instances of alleged disparate treatment are only probative if the comparators are “similarly situated in all relevant respects — a rigorous standard” (internal quotation marks omitted)). In his deposition, Lees justified Pei’s higher pay rate on the basis “[h]e was an outstanding student and an exceptional young engineer.” .Nash clings to Lees’s use of “young,” but “young” could be synonymous with “new,” and we consider this to be a textbook example of a “stray remark” unrelated to the decisional process. See Twymon v. Wells Fargo & Co., 462 F.3d 925, 933-34 (8th Cir. 2006). The district court was correct to disregard the other “trivial matters,” such as the chemical spill and the perceived “cold shoulder.” See Sprenger v. Fed. Home Loan Bank of Des Moines, 253 F.3d 1106, 1113 (8th Cir. 2001) (“[W]e hesitate to rely on isolated comments as proof of bias lest the law become a ‘general civility code.’ ” (citation omitted) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998))).

We are similarly unconvinced by Nash’s other arguments. Nash points to instances where Lees criticized him for “physical dexterity issues,” an “inability to think on his feet,” and “stubbornness” to suggest Lees harbored ageist stereotypes that motivated his decision. However unlike the cases Nash cites, see, e.g., Hilde v. City of Eveleth, 777 F.3d 998, 1005-06 (8th Cir. 2015) (retirement age), these statements are generic workplace criticisms used to explain many terminations regardless of the employee’s age. That these comments were not directed at the younger interns does not suggest they were age-based, but only that Lees did not think these issues similarly plagued their performance. Nash also suggests he is entitled to a favorable inference because neither Lees nor Wright immediately denied his allegations of age discrimination at the termination meeting. The two eases Nash cites to support this proposition — Baxter v. Palmigiano, 425 U.S. 308, 316-20, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976), and National Acceptance Co. of America v. Balthalter, 705 F.2d 924, 926-30 (7th Cir. 1983) — were both rooted in Fifth Amendment principles that are not applicable here. Allowing for any sort of adverse inference would be unsupported by law and seemingly require employers to risk further escalation of an already tense situation by engaging with a distressed employee upon termination. We think it unwise to create such a rule.

Whatever small amount of combined probative value the above-described evidence has is eroded when we apply two well-established presumptions to the undisputed facts at hand. First, it is significant that Nash was hired and fired “ ‘within a relatively short period of time.’ ” Arraleh v. County of Ramsey, 461 F.3d 967, 976 (8th Cir. 2006) (quoting Herr v. Airborne Freight Corp., 130 F.3d 359, 363 (8th Cir. 1997)); accord Haigh v. Gelita USA, Inc., 632 F.3d 464, 470 (8th Cir. 2011) (“ ‘We have noted it is unlikely a supervisor would hire an older employee and then discriminate on the basis of age, and such evidence creates a presumption against discrimination.’ ” (quoting Fitzgerald v. Action, Inc., 521 F.3d 867, 877 (8th Cir. 2008))); Lowe v. J.B. Hunt Transp., Inc., 963 F.2d 173, 175 (8th Cir. 1992) (“It is simply incredible, in light of the weakness of plaintiffs evidence otherwise, that the company officials who hired him at age fifty-one had suddenly developed an aversion to older people less than two years later.”). Second, the fact Lees himself was only five years younger than Nash when he made the decision both to hire and fire Nash also “run[s] counter to any reasonable inference of discrimination based on age.” Rothmeier v. Inv. Advisers, Inc., 85 F.3d 1328, 1337 (8th Cir. 1996); see also Bone, 686 F.3d at 956 n.3; Lowe, 963 F.2d at 174-75.

Nash attempts to avoid these presumptions by arguing they do not apply to MHRA claims, but “[t]he Minnesota Supreme Court has held time and again that MHRA claims are to be construed in accordance with federal precedent. We see no reason why the Minnesota Supreme Court would deviate from federal precedent now.” Rothmeier, 85 F.3d at 1338-39 (citation omitted) (applying these presumptions to both the ADEA and MHRA). Nash also suggests such presumptions are improper under Tolan v. Cotton, 572 U.S. -, 134 S.Ct. 1861, 188 L.Ed.2d 895 (2014), and Torgerson, 643 F.3d at 1043, but this argument does not move the needle. Those cases merely remind us that we are not to credit Optomec’s version of disputed facts, see Tolan, 572 U.S. at-, 134 S.Ct. at 1868, or treat motions for summary judgment more harshly in the employment-discrimination context, see Torgerson, 643 F.3d at 1043. See generally Fed. R. Civ. P. 56(a). Here it is undisputed that Nash was hired to be an intern (age 54), hired permanently (age 55), and fired (age 55), all by the similarly aged Lees and all events occurring within less than a year. Looking to these facts and applying these presumptions does not run contrary to Rule 56, Tolan, or Torgerson. Cf. Buytendorp v, Extendicare Health Servs., Inc., 498 F.3d 826, 836 (8th Cir. 2007) (noting “[w]e need not ignore undisputed facts” at the summary judgment stage).

III. CONCLUSION

We conclude Nash failed to present sufficient evidence to raise a genuine issue for trial as to whether Optomec discriminated against him on the basis of age. Therefore, we affirm.

      . The Honorable Richard H. Kyle, United States District Judge for the District of Minnesota.

      . Evans began working for Optomec before Nash did, and became an engineer with the company after his internship ended. Pei was hired shortly after Nash, and left in December 2013. Bakke began his internship in January 2014, and accepted employment elsewhere after his internship ended in August 2014.

      . Nash brought this action in state court, but Optomec- — a Delaware corporation with its principal place of business in New Mexico— removed the case to federal court. See 28 U.S.C. § 1332(a)(1) (diversity jurisdiction); id. § 1441 (removal).

      . One possible exception relates to Nash's ultimate burden under the MHRA. Optomec calls for the but-for standard applicable to ADEA plaintiffs. See, e.g., Rahlf v. Mo-Tech Corp., 642 F.3d 633, 636-37, 636 n.2 (8th Cir. 2011). Nash counters that MHRA plaintiffs need only show age was a “motivating factor.” See, e.g., Noreen v. PharMerica Corp., 833 F.3d 988, 992-94 (8th Cir. 2016). The district court took the prudent approach by applying the "less-stringent 'motivating factor' standard,” and we will do the same because we agree Optomec is entitled to summary judgment under either standard.