author: ERICKSEN, District Judge. KELLY, Circuit Judge,

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Esther C. DURHAM, Defendant-Appellant.
    No. 15-3206
    United States Court of Appeals, Eighth Circuit.
    Submitted: April 12, 2016
    Filed: September 6, 2016

      Counsel who represented the appellant was Michael David Gooch, of Omaha, NE.
    Counsel who represented the appellee was Thomas J. Kangior, AUSA, of Omaha, NE.
    Before GRUENDER and KELLY, Circuit Judges, and ERICKSEN, District Judge.

      . The Honorable Joan N. Ericksen, United States District Judge for the District of Minnesota, sitting by designation.

   ERICKSEN, District Judge.

Appellant Esther Durham, who pleaded guilty to a drug distribution conspiracy charge, appeals her sentence. Before sentencing, Durham’s attorney filed objections to the Presentence Investigation Report (“PSI”) and, in the same document, moved for a downward departure or variance. On appeal, Durham focuses on just one of her objections: her objection to the Probation Office’s finding that she was not entitled to a downward adjustment as a minor or minimal participant in calculating her offense level. The Probation Office distributed a revised PSI with an addendum responding to Durham’s filing, and the district court announced that it would consider Durham’s objections and motion at the sentencing hearing. At sentencing, after hearing argument from Durham’s attorney, the district court found the applicable United States Sentencing Guidelines (“Guidelines”) range for imprisonment to be 87 to 108 months and then, after further proceedings, imposed a sentence of 72 months’ imprisonment.

Durham appeals the sentence primarily on the ground that the district court did not explicitly rule on her objection relating to a mitigating role adjustment. That characterization of the sentencing proceedings, however, is incorrect. We recognize that it is a serious error to improperly calculate the applicable Guidelines range. Molina-Martinez v. United States, — U.S. —, 136 S.Ct. 1338, 1345, 194 L.Ed.2d 444 (2016). But the district court did rule on Durham’s role-adjustment objection, and we find no clear error in its calculation of Durham’s Guidelines range based on the denial of a mitigating role adjustment. We affirm.

I.

On appeal, Durham raises two issues: First, whether the district court erred by failing to resolve the factual dispute about the applicability of a downward adjustment to her offense level for a mitigating (minor or minimal) role under Guidelines § 3B1.2, and second, whether the district court erred in calculating Durham’s offense level. “We review de novo the district court’s application of the Guidelines, and we review for clear error the district court’s factual findings.” United States v. Betts, 509 F.3d 441, 445 (8th Cir. 2007) (citing United States v. Ingram, 501 F.3d 963, 968 (8th Cir. 2007)).

II.

Durham and her codefendant in this action, Ryan Franks, were charged in Count I of a superseding indictment with conspiring to distribute 50 grams or more of a mixture or substance containing a detectable amount of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846. On May 21, 2015, Durham pleaded guilty, without a plea agreement, to this single count. Franks pleaded guilty on June 1 pursuant to a plea agreement filed that same day, in which the parties agreed that Franks should be held responsible “for at least 500 grams, but less than 1.5kg of methamphetamine (mixture).”

The Probation Office was required to distribute its initial PSI regarding Durham to counsel by July 2. The PSI found, among othep things, that in an interview, Durham admitted that for four to five months, drugs were sold out of the apartment she shared with Franks; that she picked up pound quantities of methamphetamine from a supplier; that she had occasionally delivered narcotics to customers even though they usually met with Franks; and that she assisted Franks in maintaining a ledger of drug sales. PSI ¶ 31. It concluded that a “ ‘minimal participant’ or ‘minor participant’ reduction is not applicable in this case” because Durham “was involved with different aspects of the criminal enterprise,” “was aware of the transactions completed by ... Franks,” and “admitted to picking up quantities of methamphetamine from their supply source and conducting drug sale transactions with customers, as well as assisting in tracking their customers’ drug debts.” PSI ¶ 34. The initial PSI also found that Durham was accountable for a total of 19 pounds of methamphetamine mixture, resulting in a base offense level of 84-. PSI ¶ 32. It recommended a two-level increase for firearm possession, PSI ¶ 33, and a three-level decrease for acceptance of responsibility, PSI ¶ 38, but no downward adjustment for role, PSI ¶ 43. These determinations resulted in an offense level of 33. Combining the offense level with a criminal history category of III, the initial PSI calculated the applicable Guidelines range to be 168 to 210 months’ imprisonment.

In a document titled “Objections to PSI [and] Motion for Downward Departure or Variance,” DCD 90, Durham filed objections to the initial PSI, consistent with the district court’s amended order on sentencing schedule, DCD 85, which required any such objections to be filed by July 23. See also NECrimR 32.1(b). Durham raised numerous objections to the PSI. Most pertinent to this appeal, she objected to PSI ¶ 31 as follows:

Ms. Durham acknowledged that “she assisted Franks in keeping track of the drug debt in a ‘black book.’ ” The probation officer has interpreted this in the most damning possible way. In fact, Ms. Durham did occasionally write information in Ryan Franks’ black book but only occasionally and only under his direction .... Rather than supporting the inference, see 34, that Ms. Durham is not a minimal or minor participant, her obedience and subordination to Ryan Franks strongly supports a role adjustment for Ms. Durham.

DCD 90 ¶ 9 (emphasis added). Without specifically referencing PSI ¶ 34 again, Durham asked the district court to find “that she [was] in fact eligible for a downward role adjustment.” DCD 90 ¶ 21. Durham also objected to the amount of drugs for which she was responsible and to the application of the two-level increase for firearm possession. Referring to Franks’ plea agreement, Durham further asserted that her base offense level should be lower than Franks’ and that “an appropriate offense level would be 25.” She also argued that a downward variance or departure from the recommended Guidelines range was warranted because of policy considerations relating to how her relatively minor role in the drug distribution prohibited her from being eligible for a substantial-assistance departure.

Consistent with the scheduling order, the Probation Office distributed a revised PSI by August 6, with an addendum explaining its position regarding Durham’s objections (“PSI Addendum”). Responding to the objection to PSI ¶ 34, the PSI Addendum stated:

Regarding the issue of a role adjustment, the defendant admitted in her post-Miranda statement to being involved in various phases of drug distribution, including bookkeeping, picking up shipments from the supplier, as well as meeting with customers. The defendant’s participation was not simply limited to a single task within the conspiracy. Additionally, she acknowledged that drugs were being sold out of the apartment she shared with her codefendant. While her codefendant appears to have conducted most of the sales, the defen- • dant had knowledge and/or understanding of the scope and structure of the conspiracy, specifically the activities of her codefendant. Thus, the threshold requirement for a “minor” or “minimal participant” reduction is not satisfied.

The PSI Addendum also responded to other of Durham’s objections, including to the quantity of drugs involved and the firearm possession.

At this point, the district court’s scheduling order provided that Durham should file and serve “a written statement of position respecting each of the unresolved objections to the presentence report, including the specific mature of each objection,” and should attach any written evidence in support of the position to that document or request an opportunity to provide oral testimony. DCD 85. Durham did not file any written statement of position, did not file supporting documents, and did not make any request to provide testimony.

The district court held Durham’s sentencing hearing on September 28, four days after sentencing Franks. At the hearing, the parties first addressed Durham’s objections relating to the amount of drugs for which she should be held responsible. With a government concession, the court found that the attributable amount was 500 grams to 1.5 kilograms of methamphetamine mixture — the same as the amount agreed to in Franks’ plea agreement. Durham then raised her objection with regard to her allegedly minor role, “requesting] that the Court recognize Ms. Durham’s lesser involvement than of the codefendant ... either in the argument that she should get a two-level reduction for being a minor participant or that the Court consider at the level of a variance.” Sent. Tr. 4. Durham noted that this request could affect the Guidelines calculation but reiterated that she had no preference in “how you deal with it, so long as I can address to the Court basically what happened and why the Court should at least consider that in some fashion in deciding what sentence is appropriate.” Id. at 4-5. The district court responded that it would “be happy to consider that” and “should consider that in connection with the statutory sentencing factors that [it is] required to weigh,” including “the need to avoid unwarranted sentencing disparities.” Id. at 5. It explained that “where someone’s conduct is less culpable than a code-fendant, it makes sense that the less culpable person receives a lower sentence, unless obviously there’s some criminal history factor that causes that person to receive a greater sentence.” Id.

The court then noted that the PSI Addendum had addressed many of Durham’s DCD 90 objections. Id. The court overruled certain objections relating to each party’s presentation of the offense, noted that the PSI Addendum “addressed the other objections that did not affect the guideline calculation,” and concluded, “So I am going to deny the remainder of the objections in ... filing number 90, recognizing that I can sentence outside the guideline range, recognizing that I have an obligation to consider all the statutory sentencing factors and an obligation to impose a sentence that is sufficient but not greater than necessary to serve all of those statutory objectives.” Id. at 5-6 (emphasis added).

After denying the DCD 90 objections, the district court began to walk through its calculation of the applicable Guidelines range. At the court’s determination to add two points to the base offense level for firearm possession, Durham’s counsel interrupted to press her objection that the upward adjustment was inapplicable. The district court resolved that objection in Durham’s favor.

The district court then set out its Guidelines calculations, starting with a base offense level of 30 (lower than the Probation Office’s selection of 34 because of the court’s findings on drug quantities) and decreasing by 3 points for acceptance of responsibility. With a criminal history category of III, which was not contested, the resulting range of imprisonment under the Guidelines was 87 to 108 months. Durham did not press her role-adjustment objection, and the proceedings moved on to allocution. At allocution, Durham argued that in its consideration of the 18 U.S.C. § 3553(a) factors, the district court should consider, among other things, how she attempted to cooperate but was deemed too insignificant a player to be helpful. Sent. Tr. 13-14. Echoing Durham’s policy arguments in DCD 90, counsel argued that these facts should be considered to “adjust the sentence appropriately.” Id. at 14; see also id. at 15 (alluding to her alleged inability to qualify for a sentence reduction under Rule 35 of the Federal Rules of Criminal Procedure). Counsel urged the court to impose the mandatory minimum sentence of 60 months’ imprisonment. Id. at 15.

Before announcing its sentence, the district court discussed the § 3553(a) factors that it was required to consider, including the need to avoid unwarranted sentencing disparities. The court explained that it ruled out the possibility of a mandatory minimum sentence because of Durham’s category III criminal history. The court concluded by sentencing Durham to 72 months’ imprisonment. Durham’s counsel then made several requests, e.g., regarding credit for time served. In closing, the district court asked Durham’s counsel if he had “anything further,” and he represented, “No, your Honor, that’s all.” Sent. Tr. 24-25.

III.

A.

Durham’s primary argument on appeal is that the district court erred by failing to resolve the factual dispute about the applicability of a minor-participant downward adjustment to her offense level. Durham asserts that the district court did not deny her role-adjustment objection and that the failure to rule on this objection at sentencing was a significant procedural error in violation of the directives outlined in Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).

The premise of Durham’s argument, however, is mistaken. The district court did rule on Durham’s role-adjustment objection. Durham’s counsel raised the issue at the sentencing hearing, asking the district court to “recognize Ms. Durham’s lesser involvement than of the codefen-dant” either “in the argument that she should get a two-level reduction for being a minor participant” or in considering a variance. Immediately after this request, the district court indicated that it would consider the lesser-involvement argument as part of the § 3553(a) factors, specifically with regard to “the need to avoid unwarranted sentencing disparities.” Then, the district court found that the PSI Addendum had addressed many of Durham’s DCD 90 objections, indicating its familiarity with both the objections and the Probation Office’s responses to those objections, which included the officer’s renewed determination that a minor-role downward adjustment to Durham’s offense level was not warranted. After addressing certain DCD 90 objections that did not affect the Guidelines calculation, the district court then explicitly stated that it was “going to deny the remainder of the objections in ... filing number 90.” By referring to “the remainder of the objections,” the district court reinforced the impression that it understood that Durham’s role-adjustment objection could affect the Guidelines calculation, and was rejecting that argument. This was the denial that Durham now asserts never happened.

The record suggests that Durham’s counsel understood that the district court was denying the argument that a minor-role two-point downward adjustment should be applied, and made a strategic decision to, instead of challenging that denial, ply the contention that Durham played a less substantial role as part of the argument for a variance. Indeed, this was the very choice that Durham’s counsel himself proposed to the district court. Two points reinforce this conclusion. First, when the district court was outlining its calculation of the offense level, counsel interrupted to press (successfully) the objection relating to the firearm-possession adjustment but did not speak up again to assert the role-adjustment objection. The court’s calculation of the offense level clearly made no downward adjustment for a mitigating role, yet he did not contest its absence. Second, at allocution, in arguing for a variance, counsel picked up his argument that Durham’s role was minor, urging the district court to consider how her relative insignificance prevented her eligibility for a cooperation-related departure or potential Rule 35 sentence reduction. This position tracks Durham’s factual contentions in arguing on appeal that the § 3B1.2 adjustment should have been applied. See Appellant Br. 8-9; see also infra § III.B.

After listening to counsel’s arguments at allocution, and having already explicitly denied the DCD 90 objections— which included the role-adjustment objection — the district court indicated that it considered Durham’s relative significance or culpability in considering “the need to avoid unwarranted sentencing disparities.” Sent. Tr. 19; see Gall, 552 U.S. at 50 n.6, 128 S.Ct. 586 (quoting, the § 3553(a) factors, including this factor, § 3553(a)(6)). The court’s statement of reasons for its sentence also identified this factor as one of its justifications for varying below the Guidelines range, calling out specifically in its written explanation for the sentence “the need to avoid unwarranted sentencing disparities.” DCD 112. The district court’s consideration of Durham’s role-related argument as part of its decision to vary, rather than as a downward adjustment to the offense level, is consistent with how the district court told Durham’s counsel that it would address that argument directly after counsel raised it and just before denying the DCD 90 objections. It is also consistent with how counsel raised the issue, asking the court to consider Durham’s relatively minor role either in calculating the offense level or in varying or departing downward.

Had the district court failed to rule on Durham’s role-adjustment objection, that might have constituted a “significant procedural. error.” United States v. Parker, 762 F.3d 801, 805 (8th Cir. 2014) (quoting Gall, 552 U.S. at 51, 128 S.Ct. 586). But the district court did not fail to rule on this objection.

To the extent Durham’s argument can be characterized as an assertion that the district court did not adequately explain its denial of the objection, we reject that argument too. A district court must “adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.” United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (quoting Gall, 572 F.3d at 596). In leading up to its denial of the DCD 90' objections, the district court explicitly referenced both DCD 90 and the Probation Office’s responses in the PSI Addendum. The PSI Addendum, as noted, set out several reasons in support of its conclusion that “the threshold requirement for a ‘minor’ or ‘minimal participant’ reduction is not satisfied.”' In addition, as indicated in the statement of reasons, the district court adopted the second revised PSI, which included the PSI Addendum and updated information to reflect the court’s findings at the sentencing hearing. The court’s adoption of and clear references to the Probation Office’s reasoning in the PSI Addendum provided adequate explanation for its denial of Durham’s objection. Cf. United States v. Phillips, 431 F.3d 86, 93-94 (2d. Cir. 2005) (determining that factual findings were sufficient where the district court adopted a PSI and referenced its addendum, which had specifically addressed the defendant’s arguments). Further, the district court, after hearing counsel’s argument that the court should consider how Durham’s relatively minor role prevented her from benefitting from a substantial-assistance departure or Rule 35 reduction, specifically stated in explaining its sentence that it had considered the need to avoid unwarranted sentencing disparities. This statement was further illuminated by the district court’s earlier explanation, after counsel first raised Durham’s role-related argument, that absent reasons related to criminal history, a less culpable person should receive a lower sentence than her more culpable codefendant in order to avoid unwarranted sentencing disparities. Sent. Tr. 5. These explanations were sufficient under the circumstances, given the context and in light of Durham’s multi-facet-ed arguments. See Rita v. United States, 551 U.S. 338, 356, 359, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007) (“The appropriateness of brevity or length, conciseness or detail, when to write, what to say, depends upon circumstances.”) (finding that an explanation was adequate given “context and the record”). Furthermore, the district court twice noted its consideration of this sentencing factor, § 3553(a)(6), in its statement of reasons.

The district court’s consideration of Durham’s argument about her relatively minor role in view of the sentencing disparities factor makes sense when seen in the context of the whole record. Durham’s arguments in DCD 90 and at sentencing consistently hammered home an overarching theme: she should receive less time, or certainly no more time, than her co-con-spirator and codefendant, Franks, for the same count. This was, after all, a conspiracy of two. Durham could only be considered less culpable than (or less significant than, or minor in relation to) the one other person indicted in the conspiracy: Franks. So, she vigorously and successfully contested being held accountable for 19 pounds of methamphetamine mixture when Franks had reached a plea agreement that would hold him accountable for 500 grams to 1.5 kilograms. She protested, again successfully, being held responsible for Franks’ firearm possession. She sought a § 3B1.2 downward adjustment. And she sought a variance or departure because supposedly despite her willingness to cooperate, she was too relatively minor a player to be helpful. Given the totality of the arguments and the record in this case, the district court understandably homed in on the heart of the argument: whether, in the spirit of avoiding unwarranted sentencing disparities, Durham’s sentence should be lower than her co-conspirator’s on the same count. Cf. Gall, 552 U.S. at 51-52, 128 S.Ct. 586 (“The sentencing judge has access to, and greater familiarity with, the individual case and the individual defendant before him [or her] than the Commission or the appeals court.”) (quoting Rita, 551 U.S. at 357-58, 127 S.Ct. 2456). We note that Durham did not challenge the substantive reasonableness of her sentence on appeal or argue that she was entitled to a larger variance or that she was dissatisfied with the explanation for' the variance.

B.

Durham also identified as an issue in this appeal whether the district court erred in calculating her base offense level. As the government noted in its brief, Durham did not flesh out this issue clearly.

A defendant’s base offense level is calculated pursuant to Chapter 2 of the Guidelines Manual. USSG Manual § 1B1.1(a)(2) (U.S. Sentencing Comm’n 2014). Next, the district court considers whether the adjustments discussed in Chapter 3 apply. Id. § 1B1.1(a)(3).

Although Durham’s statement of the issues refers to an error in calculating the base offense level, she identifies no alleged error relating to the Chapter 2 findings. To the extent she intended to argue such a Chapter 2-related error, she has abandoned the issue by not supporting it with any argument. United States v. Aldridge, 561 F.3d 759, 765 (8th Cir. 2009).

We understand Durham’s issue instead to be that the district court erred in calculating the offense level (but not the base) by failing to apply the requested 2-point reduction under § 3B1.2. The determination whether to apply a § 3B1.2 adjustment “is based on the totality of the circumstances and involves a determination that is heavily dependent upon the facts of the particular case.” USSG Manual § 3B1.2 cmt. 3(C). A “minor participant” adjustment applies to a defendant “who plays a part in committing the offense that makes [her] substantially less culpable than the average participant” (here, Franks) “but whose role could not be described as minimal.” Id. § 3B1.2 cmts. 3(A) & 5. Durham bore the burden of establishing her entitlement to a minor-role reduction. See United States v. Salazar-Aleman, 741 F.3d 878, 880 (8th Cir. 2013). We review for clear error the district court’s determination that the minor-role adjustment was inapplicable. Id.

As noted above, before denying Durham’s DCD 90 objections, the district court referred several times to the PSI Addendum. The PSI Addendum stated that Durham was not a minor participant because she sometimes picked up pound quantities of methamphetamine from the supplier, participated in drug hand-offs to customers, and helped maintain accounts of customer debts; drugs were sold out of the home she shared with Franks; and she knew about the extent of Franks’ endeavors. Although Durham took issue with the interpretation of some of these facts, she did not argue that these statements of fact were inaccurate. Significantly, moreover, she offered no evidence in support of her objection. The district court’s scheduling order notified Durham of the opportunity to make such submissions or requests and provided a deadline for doing so. Even overlooking the deadline, Durham never— timely or untimely — submitted any written evidence or asked to put on testimony in support of her objection. The district court did not fail to consider evidence in support of a factual finding on the objection; rather, Durham did not submit any. On appeal, Durham argues that the record shows a factual basis for a role reduction: that Durham was denied the opportunity to cooperate because she played too minor a role. Those “facts” mirror the arguments, again without evidentiary support, that Durham’s counsel made in asking for a variance. Considering the entire record, we cannot find clear error in the denial of Durham’s objection that a § 3B1.2 reduction should apply.

IV.

Accordingly, we affirm.

KELLY, Circuit Judge,

dissenting.

I respectfully disagree that the district court explicitly ruled on Durham’s request for a 2-level reduction in her offense level pursuant to USSG § 3B1.2. While the district court did “deny the remainder of the objections in ... filing number 90” — the document in which Durham presented her objections to the presentence report and her request for a departure or variance— the court later revisited one of the very objections listed in filing number 90 and ruled in Durham’s favor. I also do not read the district court’s rulings on the § 3553(a) factors as a denial of the request for a role reduction. The court discussed factors such as deterrence and Durham’s progress on pretrial release, but did not address the participants’ relative culpability. See United States v. Deans, 590 F.3d 907, 909 (8th Cir. 2010) (noting that a determination of whether a defendant is entitled to a minor role reduction requires the district court to first determine the defendant’s relevant conduct and then compare the defendant’s actions against those of the other participants in relation to the elements of the offense). In my view, the district court— not the appellate court — should have the opportunity in the first instance to decide whether Durham is entitled. to a 2-level reduction in her offense level for her role in the offense. See Molina-Martinez, 577 U.S. —, 136 S.Ct. at 1345. I offer no view on whether the reduction should be applied — indeed, this court lists several reasons why the reduction may not be appropriate. But I would leave that decision to the sound discretion of the district court. Accordingly, I respectfully dissent.

      . The Honorable Laurie Smith Camp, United States District Judge for the District of Nebraska.

      . We are sensitive to the confidentiality of the sealed objections but discuss them to the extent that arguments were repeated in the unsealed sentencing transcript and briefing on appeal.

      . The district court sentenced Franks to 87 months’ imprisonment on Count I, and 60 months on a separate count, to be served consecutively. DCD 99.

      . The government argues that because Durham did not raise the issue of whether the district court failed to decide the objection, the court was not alerted to the argument and this claim of error was thus not preserved for appeal. See United States v. McDowell, 676 F.3d 730, 732 (8th Cir. 2012). Because we think it clear that Durham is mistaken on this point and the court did make a decision on the record, we need not decide whether to review for harmless or plain error. The question of whether the district court would have imposed the same sentence anyway — a question examined in Molina-Martinez, 136 S.Ct. at 1342-48, and United States v. Martinez, 821 F.3d 984, 988-90 (8th Cir. 2016) — therefore need not be answered in this case. If there is no error, we need not analyze whether the asserted error would have been plain or harmless.

      . Indeed, counsel represented at the end of the hearing that he had no further arguments, passing up another opportunity to remind the district court to decide the role-adjustment objection if he thought the court had failed to decide it.

      . The district court ultimately determined Durham's base offense level to be 30. Under § 2D1.1, if her offense level had been 32 or above, the court’s determination on the § 3B1.2 adjustment could have affected her base offense level under § 2D 1.1, but the Guidelines do not provide for any effect on the base offense level of 30. USSG Manual § 2D 1.1 (a)(5).

      . Comment 3(B) to § 3B1.2 appears to further support a finding that the minor role was inapplicable. “If a defendant has received a lower offense level by virtue of being convicted of an offense significantly less serious than warranted by his actual criminal conduct, a reduction for a mitigating- role under this section ordinarily is not warranted....” Id. § 3B1.2 cmt. 3(B). The district court found that Durham should only be accountable for 500 grams to 1.5 kilograms of methamphetamine mixture — not the 19 pounds that the PSI said was actually attributable to the conspirators' crime. Durham did not contest the accuracy of the amounts of the drugs involved during the period in which she participated, but argued that it would be unfair to hold her accountable for more than what Franks had agreed to. The court ultimately decreased Durham's base offense level four points below what it would have been if she had been held accountable for the actual amount of drugs involved in the conspiracy during the relevant time. Despite the potential effect of this change to the applicability of a § 3B 1.2 adjustment under comment 3(B), at no point after the district court accepted the lower quantities of drugs attributable to Durham did her counsel alert the court to whether this change affected her objection as previously articulated in DCD 90.


source: Caselaw Access Project

author: PERRY, District Judge.

license: Public Domain

text:
    David J. SAMPLE, Plaintiff-Appellant v. CITY OF WOODBURY; Mark J. Vierling; Sean P. Stokes; Rebecca Christensen; Joseph Van Thomme; Eckberg, Lammers, Briggs, Wolff & Vierling, PLLP, Defendants-Appellees.
    No. 15-3213
    United States Court of Appeals, Eighth Circuit.
    Submitted: June 15, 2016
    Filed: September 6, 2016

      Counsel who represented the appellant was Kevin Shoeberg of Woodbury, MN.
    Counsel who represented the appellee City of Woodbury were Leonard Jacob Schweich and Jamie L. Jonassen of Lake Elmo, MN.
    Before MURPHY and SHEPHERD, Circuit Judges, and PERRY, District Judge.

      . The Honorable Catherine D. Perry, United States District Judge for the Eastern District of Missouri, sitting by designation.

   PERRY, District Judge.

David J. Sample brought this lawsuit under 42 U.S.C. § 1983 against the City of Woodbury (“the City”) and City prosecutors. Sample alleged that the City’s failure to develop a conflict-of-interest policy led to a violation of his constitutional rights when the prosecutors filed a criminal complaint against him while simultaneously representing the victim of his alleged crime in separate civil actions. The prosecutors — Mark J. Vierling, Sean P. Stokes, Rebecca Christensen, and Joseph Van Thomme — are private attorneys from the law firm of Eckberg, Lammers, Briggs, Wolff & Vierling, PLLP (together, “the Attorneys”). Under contract with the City, the Eckberg law firm and its lawyers prosecute certain criminal matters on the City’s behalf.

The district court granted the City’s and the Attorneys’ separate motions to dismiss under Federal Rule of Civil Procedure 12(b)(6), finding that absolute immunity barred Sample’s federal constitutional claims as well as various of his supplemental state law claims. The district court dismissed a remaining state law claim under Minnesota’s doctrine of statutory discretionary immunity. Sample appeals the district court’s decision as it relates bo absolute immunity. We affirm in part, reverse in part, and remand.

I.

Sample’s complaint alleges the following facts, which we must accept as true when analyzing whether the district court correctly ruled the defendants’ Rule 12(b)(6) motions to dismiss. Gorog v. Best Buy Co., 760 F.3d 787, 792 (8th Cir. 2014); Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir. 1996).

On August 29, 2013, the Woodbury Police Department responded to a 911 call at Sample’s residence regarding an incident in which a woman, J.D., claimed that Sample had assaulted her. Attorney Vierling of the Eckberg law firm obtained copies of the police reports regarding the incident and, on September 26, attorney Christensen of the Eckberg law firm filed a criminal complaint against Sample on behalf of the City. At the time the criminal complaint was filed, Vierling and the Eckberg law firm represented J.D. in a domestic civil action in Hennepin County District Court. The Eckberg law firm later asked another firm to prosecute the criminal case against Sample, citing that it had a conflict of interest.

Sample filed a motion to dismiss the City’s charges against him. In August 2014, the state court granted Sample’s motion and dismissed the criminal complaint, finding that the Eckberg law firm engaged in prosecutorial misconduct when it brought criminal charges against Sample on behalf of the City while simultaneously representing the alleged victim in domestic civil actions, including in an action seeking an order for protection against Sample. The state court found that this misconduct violated Sample’s constitutional right to due process.

Sample then brought this section 1983 action in federal district court, alleging that the Attorneys’ filing of criminal charges against him while acting under a conflict of interest, and the City’s failure to have a conflict policy in place, violated his constitutional rights. Sample also raised supplemental state law claims against all defendants for abuse of process, malicious prosecution, and negligent failure to train and to establish a conflicts policy. The City and the Attorneys filed separate Rule 12(b)(6) motions to dismiss the complaint for failure to state a claim, which the district court granted after a hearing. Specifically, the district court held that the Attorneys enjoyed absolute prosecutorial immunity as to Sample’s section 1983 claim as well as to his claims of abuse of process, malicious prosecution, and negligent failure to establish a conflicts policy; and that the City enjoyed derivative absolute immunity on the claims. The district court further found that the doctrine of statutory discretionary immunity under Minnesota law barred Sample’s remaining claim of negligent failure to train. The district court thus dismissed Sample’s complaint in its entirety and entered final judgment thereon.

Sample now appeals the district court’s dismissal of his complaint, arguing that the district court erred in finding absolute immunity to bar his claims. We review de novo the district court’s grant of a Rule 12(b)(6) motion to dismiss. Gorog, 760 F.3d at 792.

II.

“[AJbsolute immunity defeats a suit at the outset, so long as the official’s actions were within the scope of the immunity.” Imbler v. Pachtman, 424 U.S. 409, 419 n.13, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). Where an official’s challenged actions are protected by absolute immunity, dismissal under Rule 12(b)(6) is appropriate. Patterson v. Von Riesen, 999 F.2d 1235, 1237 (8th Cir. 1993).

Prosecutors enjoy absolute immunity in their review of and decisions to charge a violation of the law. Imbler, 424 U.S. at 420-27, 431, 96 S.Ct. 984. Absolute immunity protects prosecutors against claims arising from their initiation of a prosecution and presenting a criminal case “insofar as that conduct is ‘intimately associated with the judicial phase of the criminal process.’ ” Burns v. Reed, 500 U.S. 478, 486, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991) (quoting Imbler, 424 U.S. at 430, 96 S.Ct. 984). Because the immunity depends upon the functional nature of the prosecutor’s activities, allegations of improper motive in the performance of prosecutorial functions will not defeat its protection. Myers v. Morris, 810 F.2d 1437, 1446 (8th Cir. 1987), abrogated on other grounds, Burns v. Reed, 500 U.S. 478, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991). See also Reasonover v. St. Louis Cnty., 447 F.3d 569, 580 (8th Cir. 2006).

Sample does not challenge the functional nature of a prosecutor’s action in filing a criminal complaint and acknowledges that absolute immunity protects this conduct. He argues, however, that the Attorneys’ filing of the complaint here fell outside the scope of their prosecutorial duties because it was done only to advance the claims of their client, J.D., in other civil actions. Absolute immunity, however, “is not defeated by allegations of malice, vindictiveness, or self-interest,” Reason-over, 447 F.3d at 580, and applies even if the prosecutor’s steps to initiate a prosecution are patently improper. Saterdalen v. Spencer, 725 F.3d 838, 842 (8th Cir. 2013). Allegations of unethical conduct and improper motive in the performance of prose-cutorial functions do not defeat the protection of absolute immunity. Myers, 810 F.2d at 1446.

There is no question that the Attorneys’ filing of criminal charges against Sample was an action intimately associated with the judicial phase of the criminal process. See Imbler, 424 U.S. at 430, 96 S.Ct. 984; Malley v. Briggs, 475 U.S. 335, 342-43, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). Whatever their motives may have been— including the advancement of another client’s interests — the Attorneys’ conduct in filing the charges is protected by absolute immunity. See Cleavinger v. Saxner, 474 U.S. 193, 200-01, 106 S.Ct. 496, 88 L.Ed.2d 507 (1985) (application of absolute immunity not affected by motives with which protected acts are performed). The district court properly dismissed these claims against the Attorneys.

The district court likewise properly found that absolute immunity barred Sample’s section 1983 and negligence claims to the extent they alleged that the Attorneys wrongfully failed to develop a conflicts policy. While the claims on their face appear to allege a defect in an administrative duty, which would remove the protection of absolute immunity, the district court properly found that the development of a conflicts policy and the determination as to what constitutes a conflict of interest would necessarily require legal knowledge and the exercise of related discretion, features to which the doctrine of absolute immunity applies. Van de Kamp v. Goldstein, 555 U.S. 335, 344, 129 S.Ct. 855, 172 L.Ed.2d 706 (2009).

Because the Attorneys enjoyed absolute prosecutorial immunity from suit on Sample’s claims, the district court did not err in dismissing Sample’s complaint against the Attorneys under Rule 12(b)(6) for failure to state a claim.

III.

Unlike government officials, municipalities do not enjoy absolute immunity from suit under section 1983. Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). Accordingly, the district court erred in holding that the City was absolutely immune from suit on Sample’s claims.

In finding absolute immunity to bar Sample’s claims, the district court did not distinguish the claims against the Attorneys from those against the City. It simply held all claims were barred by the doctrine. In Leatherman, however, the Supreme Court made it “quite clear that, unlike various government officials, municipalities do not enjoy immunity from suit— either absolute or qualified — under § 1983.” 507 U.S. at 166, 113 S.Ct. 1160. The Supreme Court based this clear statement on previous decisions, including Owen v. City of Independence, Mo., 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980), where it reasoned:

How “uniquely amiss” it would be ... if the government itself — “the social organ to which all in our society look for the promotion of liberty, justice, fair and equal treatment, and the setting of worthy norms and goals for social conduct” — were permitted to disavow liability for the injury it has begotten. A damages remedy against the offending party is a vital component of any scheme for vindicating cherished constitutional guarantees, and the importance of assuring its efficacy is only accentuated when the wrongdoer is the institution that has been established to protect the very rights it has transgressed. Yet owing to the qualified immunity enjoyed by most government officials, many victims of municipal malfeasance would be left remediless if the city were also allowed to assert a good-faith defense. Unless countervailing considerations counsel otherwise, the injustice of such a result should not be tolerated.

Id. at 650, 100 S.Ct. 1398 (internal citations and footnote omitted). Although the City laudably argues that extending absolute immunity to municipalities would further the underlying policy governing immunity protections to prosecutors, we cannot ignore the Supreme Court’s explicit holding in Leatherman that absolute immunity does not apply to municipalities. Nor can we ignore its reasoning in Owen.

Municipalities already enjoy some protection in that they .can only be liable under section 1983 if municipal policy or custom caused the unconstitutional injury. See Leatherman, 507 U.S. at 166, 113 S.Ct. 1160 (citing Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). Extending immunity protections to municipalities as the City proposes would leave innocent persons harmed by the abuse of governmental authority without a remedy for compensation for their injury. See Owen, 445 U.S. at 650, 657, 100 S.Ct. 1398.

Simply stated, absolute immunity does not bar Sample’s claims against the City.

We therefore reverse the district court’s finding that the City is absolutely immune from suit on Sample’s section 1983 and supplemental state law claims and remand the matter for further proceedings on Sample’s claims against the City.

IV.

For the foregoing reasons, the judgment of the district court is affirmed in part and reversed in part, and the case is remanded to the district court for further proceedings consistent with this opinion.

      . Sample does not challenge the district court’s conclusion that his claim of negligent failure to train is barred by statutory discretionary immunity. Sample has thus waived any challenge to the district court’s finding in this regard. XO Mo., Inc. v. City of Maryland Heights, 362 F.3d 1023, 1025 (8th Cir. 2004) (by failing to raise issue on appeal, party waived challenge to court’s determination on issue).

      . Our decision today addresses only the doctrine of absolute immunity as applied to municipalities, because that is the only basis upon which the district court determined Sample’s claims against the City to be barred. We do not express an opinion on whether, or the extent to which, respondeat superior liability plays a role in Sample's section 1983 claim challenging the City’s policy, or lack of policy; or whether additional bases exist for dismissal of Sample’s supplemental state law claims. See Leatherman, 507 U.S. at 166, 113 S.Ct. 1160 (freedom from respondeat superior liability distinguished from immunity from suit).
      Nor does today’s decision conflict with Patterson v. Von Riesen, 999 F.2d 1235 (8th Cir. 1993), where a panel of this court found the dismissal of claims against a county to be proper where its prosecutors were absolutely immune from suit. Id. at 1238. In Patterson the court relied on a respondeat superior theory to find the county not liable. Id. at 1238 n.2. As stated in Leatherman and as noted above, immunity from suit and freedom from respondeat superior liability are separate doctrines. Because the latter doctrine was not addressed in the district court and has not been developed on this appeal, we express no opinion on its application to the circumstances of this case.


author: SHEPHERD, Circuit Judge. MURPHY, Circuit Judge,

text:
    AMERICAN FAMILY INSURANCE; Liberty Mutual Insurance, Plaintiffs-Appellants, v. CITY OF MINNEAPOLIS, Defendant-Appellee.
    No. 15-3216
    United States Court of Appeals, Eighth Circuit.
    Submitted: June 15, 2016
    Filed: September 6, 2016

      Counsel who presented argument on behalf of the appellant was Steven L. Thees-feld, of Minneapolis, MN. The following attorney(s) appeared on the appellant brief; Lawrence M. Baill, of Minneapolis, MN.

      Counsel who presented argument on behalf of the appellee was Brian Scott Carter, of Minneapolis, MN. The following attorney(s) appeared on the appellee brief; Gregory P. Sautter, of Minneapolis, MN.
    Before MURPHY and SHEPHERD, Circuit Judges, and PERRY, District Judge.

      . The Honorable Catherine D. Perry, United States District Judge for the Eastern District of Missouri, sitting by designation.

   SHEPHERD, Circuit Judge.

American Family Insurance (“American Family”) and Liberty Mutual Insurance (“Liberty Mutual”) brought suit against the City of Minneapolis (“the City”) following a water-main break in Minneapolis, Minnesota. The district court granted summary judgment in favor of the City on each asserted claim. American Family and Liberty Mutual (together, “Appellants”) appeal the district court’s decision on their Equal Protection Clause claim, federal takings claim, and state takings claim. Having jurisdiction under 28 U.S.C. § 1291,, we affirm.

I.

A water main in Minneapolis broke on October 20, 2013, and flooded the basement condominiums and street-level window wells in the nearby Sexton Condominium building (“Sexton building”), which is owned by the Sexton Condominium Association, Inc. (“Sexton”). Although the City repaired the break within twelve hours, the flood caused damage to both uninsured and insured owners in the Sexton building. Two owners, Juliana Koe and Jane Grenell each owned apartments in the Sexton building and insured their apartments with Liberty Mutual. American Family insured Sexton. For damage associated with the water-main break, Liberty Mutual paid $25,900 to Koe and $20,800 to Grenell. American Family paid $1.37 million to Sexton for the damage associated with the water-main break.

Several entities and individuals submitted claims for damages associated with the water-main break to the City. The City settled, thirteen claims made by natural persons who were tenants of the Sexton building and one claim made by Sexton for the portion of its damages that was not covered by its insurance. The City paid these fourteen claims without requiring evidence or admitting that the water-main break resulted from the City’s negligence. Appellants, along with another insurance company not a party to the present case, submitted several claims to the City on behalf of their insureds. The only claims denied by the City were those submitted by the insurance companies.

Appellants filed a state court action in April 2014, which the City removed to federal court in May 2014. The Amended Complaint asserted five causes of action against the City: negligence, trespass, violation of the Equal Protection Clause, federal law takings, and state law takings. After the parties stipulated to the dismissal of the negligence claim, the City filed a motion for summary judgment on each of the remaining claims. The district court granted the City’s motion for summary judgment on all remaining claims, dismissing with prejudice the trespass and Equal Protection claims and dismissing without prejudice the federal and state takings claims. Specifically, the district court concluded that no evidence existed that the City displayed the requisite intent for the water main to break as would be required for a trespass claim, that the City made settlement decisions based on the nature of the loss — insured versus uninsured— and therefore did not treat similarly situated persons differently as would be required for an Equal Protection claim, and that the state takings claim was procedurally defective so the federal takings claim was not ripe for review. American Family and Liberty Mutual now appeal the district court’s grant of summary judgment on the Equal Protection and takings claims.

II.

Appellants first claim the district court erred in granting the City’s motion for summary judgment on their Equal Protection claim. “We review the district court’s grant of summary judgment de novo, viewing the record and drawing all reasonable inferences in the light most favorable to the nonmoving party.” Life Investors Ins. Co. of Am. v. Corrado, 804 F.3d 908, 912 (8th Cir. 2015) (citing Shrable v. Eaton Corp., 695 F.3d 768, 770 (8th Cir. 2012)). If no dispute of material fact exists, summary judgment is appropriate. Id. at 770-71.

As subrogating insurance carriers, Appellants argue they assume the rights of their insureds and are therefore similarly situated to the uninsured claimants whose claims the City settled and paid. Appellants cite Medica, Inc. v. Atl. Mut. Ins. Co., 566 N.W.2d 74, 76-77 (Minn. 1997) and contend that because the insurer “stands in the shoes of the insured and acquires all of the rights the insured may have against a third party,” the insurance companies have assumed their insured’s right to bring a claim against responsible third parties. According to Appellants, because both the insured and uninsured property owners suffered property damage as a result of the water-main break, they are similarly situated with respect to their causes of action against the City. Upon that foundation, Appellants argue that because they “stand in the shoes” of the insured owners — Sexton, Koe, and Gre-nell — they are similarly situated to the uninsured tenants in the Sexton building, thus the City should have settled Appellants’ claims in the same manner it settled the fourteen claims from uninsured claimants. Finally, Appellants note that both American Family and Liberty Mutual are “mutual” insurance companies, meaning casualty losses as well as subrogation recoveries are passed on to policyholders in the form of premium rate changes, so the policyholders will ultimately pay the cost of the City’s denial of the insurance companies’ claims.

The Equal Protection Clause requires state actors to treat similarly situated persons alike, but state actors do not run afoul of the Equal Protection Clause if they treat dissimilarly situated persons dissimilarly. Ganley v. Minneapolis Park & Recreation Bd., 491 F.3d 743, 747 (8th Cir. 2007) (internal quotations and citations omitted). Appellants must show the City treated them differently than similarly situated claimants. “[B]ecause the appellants are not members of a suspect class and their claims do not involve a fundamental right, their federal equal protection claim is subject to rational basis review.” Id. (citing Koscielski v. City of Minneapolis, 435 F.3d 898, 901 (8th Cir. 2006)). Under rational basis review, the classification must only be rationally related to a legitimate government interest. Gallagher v. City of Clayton, 699 F.3d 1013, 1019 (8th Cir. 2012) (internal citations omitted); Friends of the Lake View Sch. Dist. Incorp. No. 25 v. Beebe, 578 F.3d 753, 762 (8th Cir. 2009) (internal quotations and citations omitted).

Here, the City distinguished between two classifications of claimants: (1) those made by claimants, both natural persons and business entities, where insurance did not cover the loss; and (2) claims made by insurance companies based on losses suffered by. their insureds. The City paid claims to the first classification of claimants but denied claims made by the second classification of claimants.

While Appellants contend that they are similarly situated to the first classification of claimants, we recognize several significant differences between the two groups. First, the Appellants are insurance companies in the business of assuming risks of loss on behalf of their insureds. Both American Family and Liberty Mutual utilize detailed calculations and analysis to compute risks of each insured individual or entity, then charge policyholders premium rates to assume those risks. Conversely, the uninsured owners in the Sexton building are not in the business of assuming the risk of loss on behalf of them. Second, while American Family and Liberty Mutual each received premium payments, intended to cover the risk of loss, from their .insureds in the Sexton building, the uninsured claimants received no premium payments from others. This difference in the nature of the losses between the two groups greatly distinguishes them. The uninsured tenants suffered personal property damage and needed temporary housing, while Sexton suffered property damage to the Sexton building, which is its primary asset and revenue source. The insurance companies, on the other hand, suffered only the loss of the payments made to their insureds, for which they had already been compensated through the premium payments from those same insureds. Finally, the losses suffered by the first classification of claimants were real and immediate losses to personal property caused by the flood. The losses suffered by Appellants were monetary sums that they were legally bound to pay pursuant to insurance contracts with their insureds. Due to these significant differences between the two classifications of claimants and the losses they incurred, we conclude the insurance companies are not similarly situated to the uninsured property owners for purposes of an Equal Protection Clause claim. Carter v. Arkansas, 392 F.3d 965, 968-69 (8th Cir. 2004) (rejecting equal protection challenge because plaintiff public school employees failed to show they were similarly situated “in all relevant respects” to state employees who received different treatment); Bogren v. Minnesota, 236 F.3d 399, 408 (8th Cir. 2000) (“State actors may, however, treat dissimilarly situated people dissimilarly without running afoul of the protections afforded by the [Equal Protection Clause].”); Klinger v. Dep’t of Corr., 31 F.3d 727, 733 (8th Cir. 1994) (holding that plaintiffs, who were not similarly situated to others who received different treatment than the plaintiffs, did not suffer equal protection violations).

Even if Appellants could demonstrate that they are similarly situated to the uninsured claimants, they must also show the City’s differential treatment between the classes of claimants is not rationally related to a legitimate government interest. See True v. Nebraska, 612 F.3d 676, 683-84 (8th Cir. 2010). The City claims it has a legitimate interest in protecting the health, safety, and welfare of persons within its jurisdiction. Because the welfare of its citizens was threatened by the flooding of the Sexton building, the City contends that it agreed to pay the claims for the uninsured losses in order to compensate the injured persons quickly and minimize the time that the uninsured claimants were without housing and suffering uncompensated damage. On the other hand, the City argues that the losses suffered by the insurance companies — monetary damages only — were not related to the health, safety, and welfare of its citizens. Appellants argue the City settled and paid the claims of the uninsured claimants based on litigation risks and potential sympathy by a jury toward the uninsured claimants as opposed to an insurance company. Sympathy, according to Appellants, cannot serve as the rational basis for a distinction made by a state actor because it is subjective and does not serve the City’s role of protecting its citizens.

We are satisfied that the reasons proffered by the City, including protecting the welfare of its citizens by minimizing the time claimants were without housing and suffering uncompensated damages, as well as minimizing its own costs and litigation risks, demonstrate that its settlement decisions were rationally related to legitimate, government interests. See Stevenson v. Blytheville Sch. Dist. #5, 800 F.3d 955, 972-73 (8th Cir. 2015) (rejecting an equal protection claim where the defendant, a school district, had “at least a rational basis” for its differential treatment of dis-similarly situated students); Kansas City Taxi Cab Drivers Ass’n, LLC v. City of Kansas City, Mo., 742 F.3d 807, 810-11 (8th Cir. 2013) (denying an equal protection claim where the plaintiffs failed to meet “the burden of negating every conceivable basis which might support the classification at issue”) (internal quotations omitted); Weems v. Little Rock Police Dep’t, 453 F.3d 1010, 1015 (8th Cir. 2006) (recognizing a legitimate government interest in protecting the health, safety, and welfare of its citizens). Accordingly, we conclude the district court did not err in granting summary judgment in favor of the City on Appellants’ Equal Protection Clause claim.

III.

We now turn to Appellants’ claims regarding both state and federal law takings. We apply the same de novo review to the district court’s decision to grant summary judgment on the takings claims as we applied to the Equal Protection Clause claim. See Life Investors Ins. Co. of Am., 804 F.3d at 912 (internal citation omitted). Private property may not be taken without just compensation under either federal law or the applicable state law. U.S. Const, amend. V; Minn. Const. art. I § 13. Under both Supreme Court and Eighth Circuit precedent, a property owner’s federal takings claim is not ripe until the property owner has exhausted any available state procedure for seeking just compensation and been denied. Williamson Cnty. Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 195, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985) (holding that “if a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause [of the United States Constitution] until it has used the procedure and been denied just compensation”); Dahlen v. Shelter House, 598 F.3d 1007, 1010 (8th Cir. 2010) (holding that a federal claim is not ripe where the property owner failed to seek just compensation through any available state procedure); Snaza v. City of Saint Paul, 548 F.3d 1178, 1181-82 (8th Cir. 2008) (same).

In Minnesota, a property owner has a cause of action for inverse condemnation when the government has taken property without formally invoking its eminent-domain powers. Nolan & Nolan v. City of Eagan, 673 N.W.2d 487, 492 (Minn. Ct. App. 2003) (internal citation omitted). Under Minnesota law, a property owner must bring an action for inverse condemnation in state court through a mandamus action. Id. The parties agree that Appellants did not bring such an inverse condemnation claim through an action for mandamus in Minnesota state court. Appellants allege that pursuit of a state court mandamus action would have been futile in this case, so they should be permitted to bring takings claims in this federal action. Appellants reason that because they used the City’s formal claims process to submit their claims and the City subsequently denied their claims, a mandamus action in state court would be futile. However, a Minnesota state court hearing such a mandamus action has the ability not only to determine whether a taking occurred under the state constitution, but also to determine the monetary value of the harm inflicted by the taking. City of Minneapolis v. Meldahl, 607 N.W.2d 168, 172 (Minn. Ct. App. 2000). Such a remedy can hardly be considered futile.

Appellants further contend that they can pursue a state takings claim directly under the Minnesota Constitution because private property was damaged by the watermain break. In support, Appellants cite only Wegner v. Milwaukee Mut. Ins. Co., 479 N.W.2d 38 (Minn. 1991) for the proposition that the Minnesota Supreme Court ' has permitted a takings action to proceed without requiring the property owner to file a mandamus action. We first note that Appellants fail to call to our attention, and we are independently unable to find, any later case citing Wegner for this proposition. The Wegner court neither discussed the procedure by which the takings claims were asserted therein, nor addressed the issue of mandamus. We also recognize that Wegner specifically notes that a “significant restriction on recovery under [Article I, section 13 of the Minnesota Constitution] is the requirement that the taking or damaging must be for a public use.” 479 N.W.2d at 40. Unlike the damage in Weg-ner, here the damage caused by the water-main break was clearly not for a public use. See Wegner, 479 N.W.2d at 40-41 (recognizing that police officers damaged the appellant’s house during the course of apprehending a suspected felon and concluding that such a purpose was a public use). Thus, we conclude that Appellants’ reliance on Wegner is misplaced, and a state takings claim, under these facts, may not be pursued directly under the Minnesota Constitution in federal court. Because Appellants failed to pursue the available mandamus action in state court, both the state and federal takings claims are not ripe for review by the federal district court.

IV.

For the foregoing reasons, we affirm the district court’s grant of summary judgment in favor of the City.

MURPHY, Circuit Judge,

concurring.

I respectfully disagree with the majority’s conclusion that appellants’ state takings claim was not “ripe for review” by the federal district court due to their failure to first pursue it through a mandamus action in state court. I do not see why Minnesota’s mandamus requirement for inverse condemnation claims would preclude such claims from proceeding in the federal courts when there is a basis for federal jurisdiction. See, e.g., SK Finance SA v. La Plata Cty., Bd. of Cty. Comm’rs, 126 F.3d 1272, 1276 (10th Cir. 1997) (rejecting argument that state inverse condemnation claim must be brought through Colorado’s “special judicial procedure for condemnation claims” where federal diversity jurisdiction existed); see also White v. Cty. of Newberry, S.C., 985 F.2d 168, 172 (4th Cir. 1993) (exercising supplemental jurisdiction over state takings claim brought in conjunction with federal CERCLA claim).

Other circuit courts have recognized that federal courts may exercise jurisdiction over state law inverse condemnation claims even when a related federal takings claim is unripe. See SK Finance, 126 F.3d at 1276; Vulcan Materials Co. v. City of Tehuacana, 238 F.3d 382, 385-86 (5th Cir. 2001) (diversity jurisdiction). I see no reason to adopt a different rule in this case; the Minnesota cases on which the majority relies address state court procedural requirements and have no bearing on the issue of federal jurisdiction. See Nolan & Nolan v. City of Eagan, 673 N.W.2d 487 (Minn. Ct. App. 2003); City of Minneapolis v. Meldahl, 607 N.W.2d 168 (Minn. Ct. App. 2000). Accordingly, while I agree with the majority that appellants’ federal takings claim is not ripe for review, I do not agree that this conclusion extends to their related state claim.

I nonetheless concur in the judgment because appellants have not advanced any arguments showing federal jurisdiction over their inverse condemnation claim. Contrary to appellants’ assertions, the district court need not have exercised supplemental jurisdiction over their state takings claim since the related federal claims were properly dismissed. See, e.g., Hervey v. Cty. of Koochiching, 527 F.3d 711, 726-27 (8th Cir. 2008) (when federal claims correctly dismissed, pendent state claims should be dismissed without prejudice). Further, while appellants’ coiriplaint alleges that the parties are diverse, they argue on appeal only that the district court should have exercised supplemental jurisdiction over their state takings claim (they did not raise diversity jurisdiction as in SK Finance and Vulcan Materials). I would therefore not reverse the district court on this basis. See, e.g., U.S. ex rel. Ramseyer v. Century Healthcare Corp., 90 F.3d 1514, 1518 n.2 (10th Cir. 1996) (“Our duty to consider unargued obstacles to subject matter jurisdiction does not affect our discretion to decline to consider waived arguments that might have supported such jurisdiction.”) (emphasis in original). I therefore concur in the court’s judgment affirming the district court’s grant of summary judgment to the City.

      . The Honorable Susan Richard Nelson,- United States District Judge for tire District of Minnesota.


author: COLLOTON, Circuit Judge.

text:
    Alex BRAITBERG, on behalf of himself and all others similarly situated, Plaintiff-Appellant, v. CHARTER COMMUNICATIONS, INC., Defendant-Appellee.
    No. 14-1737
    United States Court of Appeals, Eighth Circuit.
    Submitted: January 13, 2015
    Filed: September 8, 2016

      Counsel who presented argument on behalf of the appellant was Joseph Siprut, of Chicago, IL. The following attorneys also appeared on the appellant brief; Anthony G. Simon, of Saint Louis, MO, and Ryan A. Keane, of Saint Louis, MO.
    Counsel who presented argument on behalf of the appellee was Roman Paul Wul-ler, of Saint Louis, MO. The following attorney also appeared on the appellee brief; Robert J. Wagner, of Saint Louis, MO.
    Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.
   COLLOTON, Circuit Judge.

Alex Braitberg sued Charter Communications, Inc., alleging that Charter retained his personally identifiable information in violation of a section of the Cable Communications Policy Act, 47 U.S.C. § 551(e). Charter filed a motion to dismiss for lack of Article III standing and failure to state a claim. The district court granted the motion, and Braitberg appeals. We heard oral argument and then held the case pending a decision in Spokeo, Inc. v. Robins, — U.S. —, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016), which informs our analysis of Article III standing. We now affirm the judgment.

I.

Alex Braitberg signed up for cable services with Charter Communications, Inc. around July 2007. Charter required Braitberg to provide various items of personally identifiable information, including his address, telephone number, and social security number, to activate the cable services. Braitberg then canceled his cable services around June 2010.

In March 2013, Braitberg contacted Charter and confirmed that Charter retained all of the personally identifiable information he had submitted in July 2007. Braitberg alleged that “Charter’s uniform policy and practice has been to retain customer [personally identifiable information] indefinitely, long after customers’ accounts have been terminated” and when it is no longer needed for providing services or collecting payments. This indefinite retention, according to Braitberg, is not necessary to satisfy Charter’s tax, accounting, or legal obligations.

Braitberg sued on behalf of himself and a class of former Charter customers under the Cable Act. The statute provides that “[a] cable operator shall destroy personally identifiable information if the information is no longer necessary for the purpose for which it was collected and there are no pending requests or orders for access to such information [by the subscriber] or pursuant to a court order.” 47 U.S.C. § 551(e). Braitberg alleged that Charter’s retention of personal information after it was no longer required to provide services, collect payments, or satisfy tax, accounting, or legal obligations violated the rights of putative class members under the Cable Act.

Braitberg claimed that Charter’s failure to destroy customers’ personal information injured him and the proposed class members in two ways. First was an alleged “direct invasion of their federally protected privacy rights.” Second, Charter allegedly deprived Braitberg and the class of the full value of the services they purchased from Charter. On this theory, Braitberg and others ascribed monetary value to controlling their personal information, and Charter failed to destroy the information as mandated by the Cable Act and by Charter’s privacy policy. Braitberg sought an order enjoining Charter from indefinitely retaining former customers’ personal information, statutory and punitive damages, and attorneys’ fees. Braitberg moved to certify a class.

Charter moved to dismiss on the ground that Braitberg lacked standing under Article III, lacked statutory standing under the Cable Act, and failed to state a claim because he had not alleged damages. The district court convened a hearing on Charter’s motion to dismiss on February 12, 2014. At the close of the hearing, the district court issued a minute order dismissing Braitberg’s claims without prejudice and dismissing the parties’ motions on class certification as moot.

Because there is a question about the timeliness of the appeal, we provide some detail about the docket. The courtroom minute sheet for the hearing was entered on the docket and provided: “Parties present for ORAL Argument RE: Mtns [3] [11] + [13]. Arguments heard. Motion to Dis miss Granted (HEA) Remaining Motions Denied as Moot. Cause Dismissed w/o predjudice [sic].” The text on the docket was substantially the same as that contained in the minute sheet, but was followed by the clerk’s initials. An automatic Notice of Electronic Filing was generated by the district court’s case management and electronic case filing system (“CM/ECF”) and sent to the parties via electronic mail. The e-mail provided that “[t]he following transaction was entered on 2/12/2014,” followed by the same text as the docket entry apd the note “WARNING: CASE CLOSED on 02/12/2014.”

On March 13, 2014, twenty-nine days after the district court dismissed the claims, Braitberg filed a “Motion to Modify Dismissal Order into an Order of Dismissal with Prejudice,” because he thought a dismissal with prejudice was necessary for “a timely appeal.” The district court granted this motion on March 14, 2014, and text reflecting the court’s disposition was entered on the docket. Braitberg filed a notice of appeal on March 21, 2014, thirty-seven days after the district court dismissed his claims without prejudice at the hearing.

II.

Charter first contends that Braitberg did not timely file his notice of appeal and that we therefore lack jurisdiction. The district court dismissed Braitberg’s claims without prejudice on February 12, 2014. The court did not explicitly grant Braitberg leave to amend the complaint, so its dismissal without prejudice is a “final, appealable order” that triggers the time for filing an appeal or a motion to alter or amend the judgment. Quartana v. Utterback, 789 F.2d 1297, 1299-1300 (8th Cir. 1986). Braitberg filed his notice of appeal thirty-seven days after the district court dismissed the suit without prejudice and filed his “Motion to Modify Dismissal Order into an Order of Dismissal with Prejudice” twenty-nine days after that dismissal.

Charter asserts that the notice of appeal was untimely because Federal Rule of Appellate Procedure 4(a)(1)(A) requires the notice to be filed “within 30 days after entry of the judgment or order appealed from,” while Braitberg filed his notice thirty-seven days after the district court issued the dismissal without prejudice. Charter also contends that Braitberg’s motion to modify the dismissal should be construed as an untimely motion to alter or amend a judgment under Federal Rule of Civil Procedure 59(e) that did not toll the time for filing a notice of appeal. The company points out that Appellate Rule 4(a)(4) specifies that only “timely” filed motions restart the appeal clock. Charter argues that Braitberg’s motion was not timely because Civil Rule 59(e) requires motions to “be filed no later than 28 days after the entry of the judgment,” and Braitberg filed his motion twenty-nine days after the district court dismissed the claims without prejudice.

We conclude that Braitberg’s notice of appeal was timely for a different reason. The time for filing both a notice of appeal and a motion to alter or amend the judgment does not commence until “entry of the judgment.” Fed. R. App. P. 4(a)(1)(A); Fed. R. Civ. P. 59(e). Civil Rule 58(a) provides that “[e]very judgment and amended judgment must be set out in a separate document,” with certain exceptions not relevant here. If the separate document requirement applies but is not satisfied, then a judgment or order is deemed “entered” for purposes of the time for filing a notice of appeal and a Rule 59(e) motion when 150 days have run from the entry of the judgment in the civil docket. Fed. R. App. P. 4(a)(7)(A)(ii); Fed. R. Civ. P. 58(c)(2). If judgment here was not entered until 150 days after the docket entry of February 12, 2014, then Brait-berg’s appeal is timely.

Charter argues that the e-mail sent to the parties on February 12, 2014, which contained the docket text and the warning that the case was closed, satisfied the separate document requirement. We disagree. The separate document requirement “must be ‘mechanically applied’ in determining whether an appeal is timely ... to avoid the uncertainties that once plagued the determination of when an appeal must be brought.” Bankers Tr. Co. v. Mallis, 435 U.S. 381, 386, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978) (per curiam) (quotation omitted). We have held that “[n]either the courtroom minute sheet nor the court’s docket book constitute a separate document” for purposes of Rule 58(a). Lupo v. R. Rowland & Co., 857 F.2d 482, 484 (8th Cir. 1988).

In this case, the automatic e-mail message generated by the CM/ECF system constituted the provision of notice to the parties required by Civil Rule 77(d)(1). That rule states that “[fimmediately after entering an order or judgment, the clerk must serve notice of the entry ... on each party.” Fed. R. Civ. P. 77(d)(1); see Am. Boat Co. v. Unknown Sunken Barge, 567 F.3d 348, 349-50 & n.3, 352-53 (8th Cir. 2009). Given that the courtroom minute sheet and the docket text do not satisfy the separate document requirement, see Lupo, 857 F.2d at 484, an automatically generated notice of the filing of the courtroom minute sheet and entry of the docket text, followed by a reproduction of the docket text, likewise cannot satisfy the requirement.

As the separate document requirement was not satisfied, the district court’s judgment is deemed entered 150 days after the judgment was entered in the civil docket on February 12, 2014. Fed. R. App. P. 4(a)(7)(A)(ii); Fed. R. Civ. P. 58(c)(2). Braitberg filed his notice of appeal thirty-seven days after the district court’s judgment dismissing the case was entered in the docket, well before the district court’s judgment was deemed “entered” and the time for filing a notice of appeal began to run. Although the notice of appeal was filed prematurely, “[a] failure to set forth a judgment or order on a separate document when required by Federal Rule of Civil Procedure 58(a) does not affect the validity of an appeal from that judgment or order.” Fed. R. App. P. 4(a)(7)(B); Chambers v. City of Fordyce, 508 F.3d 878, 881 (8th Cir. 2007) (per curiam). Braitberg’s notice of appeal is thus timely and valid.

III.

The parties next dispute whether there is a case or controversy under Article III over which the district court had jurisdiction. Braitberg argues that Charter violated his rights under the Cable Act and that he has standing to sue for redress of that violation. Article III of the Constitution limits the jurisdiction of the federal courts to cases or controversies. A plaintiff invoking the jurisdiction of the court must adequately allege an injury in fact, an essential element of the “irreducible constitutional minimum of standing.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). “The party invoking federal jurisdiction bears the burden of establishing” the requisite injury, which must be both “concrete and particularized” and “actual or imminent, not ‘conjectural’ or ‘hypothetical.’ ” Id. at 560-61, 112 S.Ct. 2130 (quotation omitted). We review a district court’s dismissal for lack of standing de novo, accepting the material allegations in the complaint as true. Shain v. Veneman, 376 F.3d 815, 817 (8th Cir. 2004).

Braitberg contends that a violation of a statutory right constitutes an injury in fact that is sufficient by itself to establish standing under Article III. He asserts that there is no need for him to allege or show any “actual injury” arising from Charter’s retention of his personal information. This court’s decisions in Hammer v. Sam’s East, Inc., 754 F.3d 492, 498-99 (8th Cir. 2014), and Charvat v. Mutual First Federal Credit Union, 725 F.3d 819, 822 (8th Cir. 2013), seemed to accept that view. Hammer, citing Charvat and Warth v. Seldin, 422 U.S. 490, 500, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975), declared that “the actual-injury requirement may be satisfied solely by the invasion of a legal right that Congress created.” 754 F.3d at 498.

In Spokeo, however, the Supreme Court rejected this absolute view and superseded our precedent in Hammer and Charvat. While acknowledging that Congress is “well positioned to identify intangible harms that meet minimum Article III requirements,” the Court emphasized that “Congress’ role in identifying and elevating intangible harms does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right.” Spokeo, 136 S.Ct. at 1549. “Article III,” the Court explained, “requires a concrete injury even in the context of a statutory violation.” Id. A concrete injury must “actually exist,” and it must be “real,” not “abstract.” Id. at 1548.

“[T]he violation of a procedural right granted by statute can be sufficient in some circumstances to constitute injury in fact.” Id. at 1549. The Spokeo Court identified two examples in which plaintiffs were unable to obtain information that Congress had decided to make public as statutory violations that also established injury in fact. Id. at 1549-50. But a plaintiff cannot “allege a bare procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement of Article III.” Id. at 1549. The Court envisioned scenarios in which a statutory violation would not amount to concrete injury, because there was no real harm or material risk of harm. In the context of the Fair Credit Reporting Act, the Court observed that certain procedural violations — such as a credit agency’s failure to provide a required notice to a user when the agency’s report was nonetheless entirely accurate, and the dissemination of a credit report with minor inaccuracies (such as an incorrect zip code) — likely could not, by themselves, establish standing because the violations result in no concrete harm. Id. at 1550.

With the benefit of Spokeo's guidance, we conclude that Braitberg has not alleged an injury in fact as required by Article III. His complaint asserts “a bare procedural violation, divorced from any concrete harm.” Id. at 1549. Braitberg alleges only that Charter violated a duty to destroy personally identifiable information by retaining certain information longer than the company should have kept it. He does not allege that Charter has disclosed the information to a third party, that any outside party has accessed the data, or that Charter has used the information in any way during the disputed period. He identifies no material risk of harm from the retention; a speculative or hypothetical risk is insufficient. Although there is a common law tradition of lawsuits for invasion of privacy, the retention of information lawfully obtained, without further disclosure, traditionally has not provided the basis for a lawsuit in American courts. See Restatement (Second) of Torts § 652A (Am. Law Inst. 1977); see also Spokeo, 136 S.Ct. at 1549. Modern courts have expressed a similar view. See Sterk v. Redbox Automated Retail, LLC, 672 F.3d 535, 538 (7th Cir. 2012) (“If, though not timely destroyed, [the personally identifiable information] remained secreted in the video service provider’s files until it was destroyed, there would be no injury.”); Gubala v. Time Warner Cable, Inc., No. 15-cv-1078-pp, 2016 WL 8890415, at *5 (E.D. Wis. June 17, 2016) (dismissing, complaint for lack of concrete injury where plaintiff alleged only that cable operator retained personally identifiable information).

Nor are we convinced that Braitberg has alleged an economic injury arising from an alleged diminution of the value of the cable services that he purchased from Charter. Braitberg alleges that consumers place a value on protecting their personal data against improper access and unauthorized secondary use. Therefore, he contends, Charter’s retention of personal information deprives him of “the full monetary value” of his transaction with the company. But without a plausible allegation that Charter’s mere retention of the information caused any concrete and particularized harm to the value of that information, Braitberg has not adequately alleged that there was any effect on the value of the services that he purchased from Charter.

For these reasons, we conclude that Braitberg lacks Article III standing, and the case was properly dismissed. The judgment of the district court is affirmed.

      . The Honorable Henry E. Autrey, United States District Judge for the Eastern District of Missouri.