author: POSNER, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Regina Elizabeth RADFORD, Defendant-Appellant.
    No. 16-3768
    United States Court of Appeals, Seventh Circuit.
    Argued April 25, 2017
    Decided May 22, 2017
    Segev Phillips, Attorney, Office of the United States Attorney, Peoria, IL, for Plaintiff-Appellee.
    Brian P. Mullins, Attorney, Office of the Federal Public Defender, Rock Island, IL, for Defendant-Appellant.
    Before POSNER, KANNE, and HAMILTON, Circuit Judges.
   POSNER, Circuit Judge.

The defendant, Regina Radford, was' convicted of possession of heroin with intent to distribute at least 100 grams of the drug, in violation of 21 U.S.C. § 841(a)(1)'—-a crime that normally (though not in this case, as we’ll see) subjects the offender to a minimum prison term of five years. Id. § 841(b)(1)(B). She argues that the search of her handbags was the product of an unlawful seizure of her—a seizure not authorized by warrant or probable cause—and that she did not consent to the search. The district judge, however, agreed with the government that Radford had not been seized and had consented to the search, and if this is right then she was rightly convicted of violating section 841(a)(1). But if the police found the heroin not because (as they argue and the judge found) Radford permitted them to search her handbags, but because by seizing her they left her with no choice but to consent to their searching her bags, she is entitled to be acquitted, for in the circumstances that she posits, the search of the bags was the product of warrantless and therefore unauthorized coercion.

The story begins in September 2015, when Radford boarded an Amtrak train in Flagstaff, Arizona, planning (we now know) to deliver heroin to a person in Toledo, Ohio. The train made a stop in Galesburg, Illinois, and while it was stopped there a Galesburg police officer named Mings, having studied Radford’s travel schedule (he testified that he goes every day to the Amtrak station to study the travel plans of passengers who booked roomettes on trains stopping at the station), noted several potential indicators that she was engaged in drug trafficking: she had purchased a one-way ticket two days before the trip, had paid a premium for a roomette, and was traveling between locations that Mings understood to be sources of illegal drugs: Flagstaff and Chicago being source cities and Ohio a source state. He checked government records for possible criminal history and learned that Radford had been arrested more than seven years earlier for assisting undocumented aliens and for possessing marijuana, but he didn’t know whether the arrest had led to prosecution, conviction, and punishment. And so he decided to accost her during the train’s brief stop in Gales-burg.

The defendant was sitting in a roomette measuring 3 ½ feet by 6 ½ feet (for a video of an Amtrak roomette see Amtrak, “Video Tour of Amtrak Roomette,” http://blog. amtrak.com/2014/02Mdeo-tour-amtrak-roomette/ (visited May 16, 2017)). Mings, in full police uniform, knocked on the door. The defendant, without having to stand, opened it. Mings remained standing in the hallway. He identified himself as an officer of the Galesburg Police Department and the Drug Enforcement Administration, and told her that they (there was another officer with him, although that officer didn’t speak to Radford) were doing “security checks” to “check for people transporting illegal narcotics on trains.” He requested her to show him her identification and train ticket. She had only an electronic train ticket, which was on her phone, but she handed him her identification, which he examined and returned. He asked whether her luggage was in the roomette and then told her he was going to ask her a series of “security questions.” He asked: “Did you pack your own bags? Did anyone ask you to transport anything for them? Are you transporting any illegal narcotics? Are you transporting any large sums of currency? And do you have any weapons?” She said that she had packed her own bags but answered no to the other questions. Last and critically he asked her whether he and the other officer could search her luggage “to confirm all statements were true.” Radford responded, “I guess so. You’re just doing your job.” He then asked her to step, out of the roomette so that he could search her luggage, and she complied.

Throughout the interview Mings spoke in what the district court determined was a “conversational tone.” But he never advised Radford that she could refuse to speak with him or to deny his request to search her bags. The search, to which she consented, revealed 707 grams of heroin contained in capsules in her makeup bag and her purse.

She was indicted and moved to suppress the evidence of the heroin on the ground that it was the fruit of an unlawful seizure. After a hearing the district judge denied her motion on the ground that her encounter with Mings had been consensual rather than a seizure and that she had voluntarily consented to the search. She then pleaded guilty, reserving however a right to appeal the denial of her motion to suppress. The judge found Radford eligible for safety-valve relief from the five-year statutory minimum sentence, see 21 U.S.C. § 841(b)(1)(B); 18 U.S.C. § 3353(f), and sentenced her to 12 months’ imprisonment.

“Even when law enforcement officers have no basis for suspecting a particular individual, they may pose questions, ask for identification, and request consent to search luggage-—-provided they do not induce cooperation by coercive means,” United States v. Drayton, 536 U.S. 194, 201, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002), and a seizure hasn’t taken place so long as “a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter,” Florida v. Bostick, 501 U.S. 429, 436, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); see also Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); United States v. Notorianni, 729 F.2d 520, 522-23 (7th Cir. 1984); United States v. Savage, 889 F.2d 1113, 1116-17 (D.C. Cir. 1989).

Radford, however, argues that she was intimidated by" Mings, primarily because the roomette was small, Mings weighed 170 pounds and was fully uniformed and equipped (he was wearing a holster with a gun in it), he was white and she was black, he was standing and she was sitting, he said he was investigating drug trafficking but didn’t tell her she had a right to refuse to answer his questions or consent to a search of her handbags.

Her argument exaggerates the situation. Mings didn’t enter the roomette before she consented to the search, his uniform with its accouterments established his identity as a police officer, he told her why he wanted to search her, there can’t be a rule that a police officer is forbidden to speak to a person of another race, and since he didn’t tell her that she had to answer his questions and didn’t threaten her with arrest there was no need to tell her that she didn’t have to answer his questions or consent to a search—that was implicit in his asking her questions without telling her that she was required to answer them.

Radford’s argument that her Fourth Amendment rights were violated is weaker than that of the two defendants in United States v. Drayton, supra, 536 U.S. at 197-98, 122 S.Ct. 2105. There the police officer’s face was only 12 to 18 inches from the face of one of the defendants when the officer questioned him on a bus, two other officers being stationed at the front and back of the bus and thus visible to the defendants. The officer displayed his badge before asking to search their bags and persons and telling them they were investigating drugs and weapons on the bus. Id. at 198-99, 122 S.Ct. 2105. The Supreme Court held that the defendants had not been seized; it rejected their argument that their being in a bus, confronted by police displaying badges and with other officers standing at the bus doors, would make a reasonable person feel coerced. Id. at 203-05, 122 S.Ct. 2105. For similar cases see Florida v. Bostick, supra, 501 U.S. at 433, 436-37, 111 S.Ct. 2382; Schneckloth v. Bustamonte, supra, 412 U.S. at 227, 93 S.Ct. 2041; and the Noto-rianni and Savage cases, also cited earlier.

A case especially close to the present' one is United States v. Goodwin, 449 F.3d 766 (7th Cir. 2006), where three police officers had stood outside the defendant’s roomette on a train about to leave and asked him whether he was “willing to answer some questions.” Id. at 767. When he said yes, they requested his tickets and identification, asked whether he was “carrying weapons, narcotics, or large amounts of money” and asked for permission to search his bags. Id. We held that the encounter up to that point had “undoubtedly” not constituted a seizure. Id. at 768.

It would have been better had Mings, like his counterpart in Goodwin, 449 F.3d at 767, asked whether Radford was “willing to answer some questions,” or like his counterpart in Notorianni, 729 F.2d at 521, whether he “could ask [her] some questions”; see also United States v. Leiva, 821 F.3d 808, 813-14, 817-18 (7th Cir. 2016). But there was nothing stopping her from asking Mings whether she was under arrest and had to answer his questions. In all likelihood she answered his questions because she knew the jig was up. Cf. United States v. Savage, supra, 889 F.2d at 1115. She knew that she was carrying a substantial quantity of an illegal drug and that she had an arrest record for trafficking illegal immigrants and possessing marijuana. She probably guessed the police knew all this, and if so she probably also surmised that they knew the purpose of her train trip. She may well have realized that if she clammed up she would be greeted by police at .the other stops on her trip, and at her final destination, by which time the police might have obtained a warrant to arrest and search her. Or she may have thought that answering questions and consenting to a search would allay suspicion, inducing the police to leave after a minimal search or even without searching at all.

Radford further argues that even if she wasn’t seized, her response to Mings’s request to search her bags was not a voluntary consent to search. She may not have known that she could refuse. But the Supreme Court in Schneckloth v. Bustamonte, supra, 412 U.S. at 227, 248-49, 93 S.Ct. 2041, held that the lack of such knowledge is not dispositive. Radford contends that her response—“I guess so. You’re just doing your job.”—is so noncommittal as not to amount to a “yes.” It’s true that some phrases offered in response to a request to search, like “whatever,” “resistance is futile,” or the line uttered in United States v. Worley, 193 F.3d 380 (6th Cir. 1999), “you’ve got the badge, I guess you can,” could indicate acquiescence rather than consent. But “I guess so” does literally mean “yes,” even if half-heartedly, and nothing otherwise indicated that her response was not voluntary.

Affirmed.


source: Caselaw Access Project

author: RILEY, Chief Judge.

license: Public Domain

text:
    Rudy F. WEBB; Betty Webb; Arnez Harper; Charletha Harper, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants v. EXXON MOBIL CORPORATION; ExxonMobil Pipeline Company; ExxonMobil Pipeline Company, L.P.; Mobil Pipe Line Company, Defendants-Appellees
    No. 15-2879
    United States Court of Appeals, Eighth Circuit.
    Submitted: October 49, 2016
    Filed: May 11, 2017

      Counsel who appeared on the brief and presented argument on behalf of the appellant was Phillip J. Duncan, of Little Rock, AR. The following attorney(s) appeared on the appellant brief; Thomas Thrash, of Little Rock, AR., Marcus Neil Bozeman, of Little Rock, AR., Richard Lee Quintus, I, of Little Rock, AR., Jerrold S. Parker, of Bonita Springs, FL., Peter J. Cambs, of Bonita Springs, FL.
    Counsel who appeared on the brief and presented argument on behalf of the ap-pellee was Gary D. Marts, Jr., of Little Rock, AR. The following attorney(s) appeared on the appellee brief; Scott A. Irby, of Little Rock, AR., Edwin L. Lowther, Jr., of Little Rock, Ar., Stephen R. Lancaster, of Little Rock, Ar., Michelle M. Kaemmerling, of Little Rock, Ar., Michael D. Barnes, of Little Rock, Ar., Jane A. Kim, of Little Rock, Ar., Michael A. Thompson, of Little Rock, Ar.
    Before RILEY, Chief Judge, WOLLMAN and BENTON, Circuit Judges.

      . The Honorable William Jay Riley stepped down as Chief Judge of the United States Court of Appeals for the Eighth Circuit at the close of business on March 10, 2017. He has been succeeded by the Honorable Lavenski R. Smith.

   RILEY, Chief Judge.

Approximately seventy years ago, a pipeline company entered into a series of easement contracts with landowners in Texas, Arkansas, Illinois, and Missouri for the purpose of constructing a pipeline that would transport oil from Texas to Illinois. Decades later, the successors-in-interest of those easement contracts brought this suit against the pipeline’s current owners and operators, alleging the defendants have breached their easement contracts by failing to reasonably operate, maintain, and repair the pipeline. This lawsuit seeks rescission of their easements and the pipeline’s removal or replacement—or in the alternative, damages. After initially certifying the lawsuit as a class action, the district court reversed its decision and granted summary judgment to the defendants. Because we conclude the class was correctly decertified and the claims properly dismissed, we affirm the judgment of the district court.

1. BACKGROUND

The relevant portion of the Pegasus Pipeline (pipeline), as it has come to be known, was constructed between 1947 and 1948 and originally stretched approximately 650 miles between Corsicana, Texas, and Pakota, Illinois. Today, the 20-inch pipe, containing both seam and seamless welded steel, covers roughly 850 miles, traveling northeast from Nederland, Texas, through Arkansas and Missouri to Pa-kota, Illinois. In 2006, the flow of the pipeline was reversed in order to transport oil from Illinois to Texas, and in 2009, an expansion project increased the pipeline’s daily capacity by 30,000 barrels of oil. Currently the pipeline can carry up to 95,000 barrels per day.

In April 2013, a group of plaintiffs, who are successors-in-interest to the easement contracts, filed this class action lawsuit against the pipeline’s current owners and operators: Exxon Mobil Corporation, Exx-onMobil Pipeline Company, and Mobil Pipe Line Company (collectively, Exxon). See Fed. R. Civ. P. 23. As relevant to the allegations brought forth here, the plaintiffs claim Exxon’s operation of the pipeline is unreasonable and unsafe. Exxon admits the pipeline has suffered “releases” over the years: in 1987 near Corsicana and in 1990 near Bragg, Texas, and—due to a third party, according to Exxon—in 1995 in Hot Springs, Arkansas, and in 2013 near Doniphan, Missouri. On March 29, 2013, a release of “Wabasea Heavy crude oil” occurred near Mayflower, Arkansas, forcing residents living near the release site to evacuate their homes. The plaintiffs claim Exxon has materially breached the terms of their' easement contracts by failing to inspect, maintain, repair, and replace the pipeline, resulting in hazardous conditions and damages to the plaintiffs’ servient estates.

The “right of way” easements include generally similar terms and provisions stating each landowner:

hereby grant[s] and conveyfs] to MAGNOLIA PIPE LINE COMPANY ... its successors and assigns, the rights' of way, easements and privileges to lay, repair, maintain, operate and remove pipe lines and replace existing lines with other lines, for the transportation of oil and gas and the products thereof ... over, across and through Grantor’s lands....
TO HAVE AND TO HOLD unto said Magnolia Pipe Line Company, its successors and assigns for the purposes aforesaid. The said Grantors shall have the right fully to use and enjoy the said premises except for the purposes herein-before granted to said Magnolia Pipe Line Company, its successors and assigns, which hereby agrees to pay any damages that may arise to crops, timber or fences from the use of said premises for such purposes; said damages if not mutually agreed upon to be ascertained and determined by three disinterested persons.... Should more than one pipe line be laid under this grant at any time, fifty cents per rod shall be paid for each additional line so laid, besides the damage above provided for. It is further agreed that said pipes shall be buried to a sufficient depth so as not to interfere with the cultivation of soil.

In light of the alleged breach, the plaintiffs assert they are entitled to rescind their easements and force Exxon to remove the pipeline or replace it; or, alternatively, to recover damages resulting from the breach of contract and diminished value of their properties.

The amended complaint identified Rudy and Betty Webb of Mayflower, Arkansas, and Arnez and Charletha Harper of Conway, Arkansas, as the named plaintiffs for the proposed class. See Fed. R. Civ. P. 23. Opposing the plaintiffs’ motion for class certification, Exxon argued the plaintiffs’ claims are preempted by the Pipeline Safety Act (PSA), 49 U.S.C. §§ 60101, et seq„ and the class was not ascertainable because identification of its members would require individual title searches of thousands of parcels of land. The district court granted class certification, but narrowed the class definition from all easement owners to individuals “who currently own real property subject to an easement for the Pegasus Pipeline and who have pipeline physically crossing their property.” (Emphasis added). The district court determined the Webbs lacked standing to be class representatives, because although their property is subject to an easement, it has no pipeline crossing it. The district court also determined the lawsuit was not preempted by the PSA because the claims sought to enforce a private easement agreement.

In August and September 2014, respectively, Exxon moved for reconsideration of the district court’s certification decision and for summary judgment. Moving for summary judgment, Exxon argued the plaintiffs could not prove breach of the easement contracts because no affirmative duty of maintenance or repair exists under Arkansas law. See City of Crossett v. Riles, 261 Ark. 522, 549 S.W.2d 800, 801-02 (1977).

In early March 2015, Exxon filed a second motion for summary judgment, advancing an additional basis for judgment as a matter of law—that specific performance and rescission were not available remedies under state law. Two weeks later, the district court granted Exxon’s motion for reconsideration of the class certification and first motion for summary judgment, dismissing the plaintiffs’ case with prejudice. Under further scrutiny, the district court determined class certification was improper. The district court then concluded the suit was federally preempted by the PSA, but “[e]ven if’ it were not, the plaintiffs’ claims otherwise failed under Arkansas law. The plaintiffs moved to alter or amend the judgment, but the district court denied their motion. On appeal, see 28 U.S.C. § 1291 (appellate jurisdiction), the plaintiffs challenge the district court’s (1) reversal of certification; (2) grant of summary judgment; and (3) denial of the motion to alter or amend the judgment.

II. DISCUSSION

A. Class Certification

“The class action is ‘an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.’ ” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011) (quoting Califano v. Yamasaki, 442 U.S. 682, 700-01, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979)). “In order to justify a departure from that rule, ‘a class representative must be part of the class and possess the same interest and suffer the same injury as the class members.’ ” Id. (quoting E. Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 403, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977)). “Federal Rule of Civil Procedure 23(a) sets out four threshold requirements that must be met before a plaintiff may file a lawsuit on behalf of a class of persons.” Avritt v. Reliastar Life Ins. Co., 615 F.3d 1023, 1029 (8th Cir. 2010). Those are numerosity, commonality, typicality, and adequacy. See Fed. R. Civ. P. 23(a). Once those requirements are satisfied, the proposed class must also fit within “one of the three subsections of Rule 23(b).” Ebert v. Gen. Mills, Inc., 823 F.3d 472, 477 (8th Cir. 2016) (citation omitted); see Fed. R. Civ. P. 23(b). We review a district court’s class action certification decision for an abuse of discretion. See Avritt, 615 F.3d at 1029.

The plaintiffs sought certification under Rule 23(b)(3), which joins plaintiffs whose “questions of law or fact common to class members predominate over any questions affecting only individual members.” Fed. R. Civ. P. 23(b)(3). Reversing its original order, the district court concluded the plaintiffs could not satisfy commonality, typicality, or adequacy under Rule 23(a), as the nature of the claims were more “nuanced” than the district court had initially considered. See, e.g., Day v. Celadon Trucking Servs., Inc., 827 F.3d 817, 830 (8th Cir. 2016) (“ ‘Even after a certification order is entered, the judge remains free to modify it in the light of subsequent developments in the litigation.’ ” (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982))). Because the pipeline is comprised of individual segments, the district court reasoned, “Exxon’s actions, or inactions, on one individual’s land would not necessarily implicate the interests of other landowners,” and “trial would necessarily devolve into a parcel-by-parcel analysis of whether Exxon breached the individual easement.”

We agree with the district court’s assessment. “The ‘common contention’ in Rule 23(a)(2) ‘must be of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.’ ” Sandusky Wellness Ctr., LLC v. Medtox Sci., Inc., 821 F.3d 992, 998 (8th Cir. 2016) (quoting Dukes, 564 U.S. at 350, 131 S.Ct. 2541). The plaintiffs argue they satisfy Rule 23(a)(2) because Exxon, owing the same contractual promises to class members, operates the pipeline uniformly as “one continuous unit.” Pivotal to commonality, however, is whether the “ ‘class members have suffered the same injury,’” in addition to being owed identical duties. Smith v. ConocoPhillips Pipe Line Co., 801 F.3d 921, 925 (8th Cir. 2015) (quoting Dukes, 564 U.S. at 350, 131 S.Ct. 2541). Even if Exxon’s decisions concerning the transportation of contents throughout the 850-mile pipeline can be considered uniform, the effect is not. In Smith v. ConocoPhillips Pipe Line Co., a putative class of landowners sued the owner of a pipeline alleging contamination coming from a leak in the pipeline had created a nuisance. See id. at 922. We decided fear of contamination was not a sufficient injury to support a claim for nuisance, and “in the absence of evidence showing class members were commonly affected by contamination on their property,” the district court abused its discretion by certifying the class. See id. at 927. The claims here are for breach of contract, not nuisance, but establishing breach would require examination of how Exxon’s operation of the pipeline affects the plaintiffs, which, as the district court found, varies depending on where individual class members’ property is located, as well as many other factors.

While we have our doubts the plaintiffs could meet commonality under Rule 23(a)(2), they cannot meet the “far more demanding” predominance requirement under Rule 23(b)(3). Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 624, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997); see also Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. -, -, 136 S.Ct. 1036, 1045, 194 L.Ed.2d 124 (2016). To demonstrate predominance under Rule 23(b)(3), we must analyze “whether a prima facie showing of liability can be proved by common evidence or whether this showing varies from [class] member to [class] member.” Day, 827 F.3d at 833 (quoting Halvorson v. Auto-Owners Ins. Co., 718 F.3d 773, 778 (8th Cir. 2013)). In Ebert, a group of residential landowners brought a class action lawsuit against a nearby industrial facility claiming its pollution threatened their health and diminished their home values. See Ebert, 823 F.3d at 475. We reversed class certification pursuant to Rule 23(b)(3) because, in order to determine if the properties had been contaminated, the district court would have needed to make a “property-by-property assessment.” Id. at 479. The plaintiffs here may assert all of the pipe for 850 miles is bad, but demonstrating breach is more complicated. Beyond determining liability, in Ebert we identified several other individualized issues that prevented certification, including evaluations of each property’s unique features and conditions, presence of groundwater, possible mitigating factors, and complicated assessments of diminution in value. See id. Here, the same considerations, unique to each class member’s property, complicate class-wide resolution. Too many individual issues predominate over common ones.

Furthermore, the easements may be similar or identical, but the proposed class would join claims arising out of the contract, property, and tort law in four states: Arkansas, Illinois, Texas, and Missouri. See, e.g., United States v. Johansen, 93 F.3d 459, 463 (8th Cir. 1996) (“State law will generally govern the interpretation of a real property conveyance instrument.”). “When claims in a class action arise under state law—and the class comprises multiple states—the court must consider whether different state laws will apply to different members of the class.” Johnson v. Nextel Commc’ns Inc., 780 F.3d 128, 140 (2d Cir. 2015). In this case, as the district court reasoned, proceeding as a class action was not the preferable method of adjudication because it “would potentially invite the application of multiple conflicting state laws.” See Amchem Prods., 521 U.S. at 624, 117 S.Ct. 2231 (“Differences in state law ... compound these disparities [under Rule 23(b)(3) ].”). The district court did not abuse its discretion by decertifying the class action.

B. Breach of Easement Contract

Summary judgment shall be granted if the moving party “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We review de novo a district court’s grant of summary judgment, construing the record in the light most favorable to the nonmoving party. See Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir. 2005). Although the district court decided the plaintiffs’ state claims were preempted by the PSA, it concluded that “[e]ven if’ they were not, summary judgment was appropriate because “the easement contracts do[ ] not give rise to a duty under Arkansas law.” Because we conclude the claims fail under Arkansas law, we need not consider issues of federal preemption, and we rest our affirmance on state law. See Spirtas Co. v. Nautilus Ins. Co., 715 F.3d 667, 670-71 (8th Cir. 2013) (“This court can affirm on any basis supported in the record.”); cf. Columbia Venture, LLC v. Dewberry & Davis, LLC, 604 F.3d 824, 828 (4th Cir. 2010) (holding state law grounds must be decided before courts consider preemption); Qwest Corp. v. City of Santa Fe, 380 F.3d 1258, 1267 n.7 (10th Cir. 2004) (same); BellSouth Telecomms., Inc. v. Town of Palm Beach, 252 F.3d 1169, 1176 (11th Cir. 2001) (same). Contra N. J. Payphone Ass’n v. Town of West New York, 299 F.3d 235, 239 n.2 (3d Cir. 2002) (deciding preemption may be considered before state law issues).

Although this case involves property law in the sense that it concerns easements, the Webbs’ and Harpers’ causes of action are for breach of the terms and conditions of their easement contracts. In order to show breach, they must demonstrate Exxon has failed to perform a duty. See Boellner v. Clinical Study Ctrs., LLC, 378 S.W.3d 745, 753 (Ark. 2011) (“When performance of a duty under a contract is contemplated, any nonperformance of that duty is a breach.”). To begin, the terms of the easements contain no express contractual provisions imposing duties of maintenance or repair. The only time repair or maintenance is considered is in contemplation of Exxon’s ability to enter the land for those purposes. Still, the Webbs and Harpers contend such duties are always implied in easement contracts.

One Arkansas case, as relied upon by the district court, expressly dismantles this proposition, and “[i]n deciding matters of state law, we are bound by the decisions of the state’s highest court.” Smith, 801 F.3d at 925 (citation omitted). In City of Crossett v. Riles, the plaintiffs granted the city a 30-foot-wide easement in their backyard so the city could create a drainage ditch to relieve flooding problems. See City of Crossett, 549 S.W.2d at 801. Over ten years after the grant of the easement, the drainage ditch had fallen into disrepair. See id. After one particularly heavy rain, the drainage ditch flooded and caused extensive property damage to the plaintiffs’ land. See id. The plaintiffs sued, insisting the city had breached its duty to maintain the ditch to protect the landowners’ property. See id. Examining the easement agreement, the court held:

We can find no language in the instrument, and counsel for the appellees point to none, expressly or impliedly binding the city to construct or maintain or repair the ditch. The instrument is just what its title says, “Grant of Easement.” It is essentially a conveyance by the grantors to the grantee, of certain privileges, with limited protective language in favor of the grantors. Absent any language imposing an affirmative duty of maintenance upon the city, no such duty existed.

Id. at 801-02. But see Restatement (Third) of Property (Servitudes) § 4.13(1) (requiring the “[t]he beneficiary of an easement ... to repair and maintain the portions of the servient estate ... used in the enjoyment of the servitude ... to (a) prevent unreasonable interference with the enjoyment of the servient estate, or (b) avoid liability of the servient-estate owner to third parties”).

The Webbs and Harpers suggest subsequent Arkansas cases have “placed an affirmative duty of reasonableness on easement holders and recognized the misuse of easements as being valid claims for ser-vient landowners,” but none of these later cases squarely address the duty of maintenance or provide convincing support to persuade us City of Crossett has been effectively overruled. Cf. Sluyter v. Hale Fireworks P’ship, 370 Ark. 511, 262 S.W.3d 154, 159 (2007) (concerning termination of an easement due to misuse); Dwiggins v. Propst Helicopters, Inc., 310 Ark. 62, 832 S.W.2d 840, 843 (1992) (ruling summary judgment was granted in error where the trial court granted the easement holder an “unqualified right to damage” the servient estate despite the easement’s express terms providing the grantor with the “ ‘especially understood’ right to farm and cultivate the same right-of-way”).

The Webbs and Harpers assert Exxon has breached their retained “right to fully use and enjoy” their properties, and City of Crossett “never addressed the misuse of an easement which contractually limited the easement to the extent it might interfere with” that right. Certainly, the • Webbs’ and Harpers’ argument that an easement holder has a duty to exercise its property rights to the easement in a manner that does not interfere with the easement grantor’s use and enjoyment of the servient estate is supported by Arkansas law. See Bean v. Johnson, 279 Ark. 111, 649 S.W.2d 171, 172 (1983) (“When an easement exists, the rights of both parties are reciprocal, and respective owners must use the easement in a manner that will not interfere with the other’s rights to utilization and enjoyment of the'property.”); see also Wilson v. Brown, 320 Ark. 240, 897 S.W.2d 546, 550 (1995); Craig v. O’Bryan, 227 Ark. 681, 301 S.W.2d 18, 21 (1957). Despite their belief Exxon has unreasonably operated the pipeline, the Webbs and Harpers concede Exxon has not caused “any damage to any crops, timber, or fences on the [Webbs’ and Harpers’] property.” Though the amended complaint alleged the pipeline “damaged” property in its path, the Webbs and Harpers have not explained how, or shown any physical injury to their properties, and admittedly not conducted “the necessary activity to determine if the depth of the pipeline would interfere with the cultivation of the soil.” Instead, they claim the pipeline is composed of “bad pipe” and is “worn out.” Such vague allegations alone cannot provide the basis for these claims.

Finally, the Webbs and Harpers allege that even if City of Crossett precludes their claims under their easement contracts, they have asserted common law property claims for misuse of an easement and unreasonable intérference of property that should have survived summary judgment. Until now, the Webbs and Harpers have based their claims in contract law— not property law—with the evidence of breach being the alleged misuse of the easement. While the question of unreasonable use of an easement is generally one of fact, dependent on the nature of the easement, the terms of the grant, and other relevant circumstances, see Jordan v. Guinn, 253 Ark. 315, 485 S.W.2d 715, 720 (1972), the evidence here is insufficient to raise a genuine issue of material fact as to whether there was unreasonable interference. See Fed. R. Civ. P. 56(a).

C. Motion to Alter or Amend the Judgment

Following the grant of summary judgment to Exxon, the Webbs and Harpers moved to alter or amend the district court’s judgment, arguing Exxon had withheld important documents until “a few days before” the district court entered its order, and those untimely produced documents provided material information that amounted to “ ‘newly discovered’ ” evidence. See Fed. R. Civ. P. 59(e), 60(b)(2). In denying the motion, the district court explained litigation had been ongoing for more than a year and a “massive amount of discovery had already been performed.” The district court concluded the plaintiffs’ new evidence did “not address ... the heart of its [summary judgment] order[, that is,] plaintiffs have not suffered any actual damages.”

Motions under Rule 59(e) “serve the limited function of correcting ‘manifest errors of law or fact or to present newly discovered evidence.’ ” United States v. Metro. St. Louis Sewer Dist., 440 F.3d 930, 933 & n.3 (8th Cir. 2006) (quoting Innovative Home Health Care v. P. T.-O. T. Assoc. of the Black Hills, 141 F.3d 1284, 1286 (8th Cir.1998)). “Similarly, a Rule 60(b)(2) motion based on the discovery of new evidence must show (1) that the evidence was discovered after the court’s order, (2) that the movant exercised diligence to obtain the evidence before entry of the order, (3) that the evidence is not merely cumulative or impeaching, (4) that the evidence is material, and (5) that the evidence would probably have produced a different result.” Miller v. Baker Implement Co., 439 F.3d 407, 414 (8th Cir. 2006). “ ‘A district court has broad discretion in determining whether to grant a motion to alter or amend judgment, and this court will not reverse absent a clear abuse of discretion.’ ” Christensen v. Qwest Pension Plan, 462 F.3d 913, 920 (8th Cir. 2006) (quoting Global Network Techs., Inc. v. Reg’l Airport Auth., 122 F.3d 661, 665 (8th Cir. 1997)).

The Webbs and Harpers contend the district court clearly erred by failing to “rigorously assess[] the evidence” and that Exxon’s delayed responses and refusal to agree to electronic search terms unfairly prejudiced their ability “to produce an adequate record” before the district court granted summary judgment. First, we note that central to the Webbs’ and Harpers’ grievance is their complaint that as part of producing documents in discovery, Exxon made a “classic ‘document dump’ ” and apparently would not agree on search and predictive coding terms. In early December 2014, the plaintiffs filed a motion to compel Exxon to agree to “ ‘predictive coding’ or ‘technology assisted review,’ ” and the district court summarily denied the plaintiffs’ motion.

As far as the Webbs’ and Harpers’ allegations that Exxon’s late production of discovery documents should have prevented the grant of summary judgment, they fail to explain why whatever was produced late would have changed the result. Our own review of the attachments to the Webbs’ and Harpers’ motion to alter or amend the judgment does not convince us the district court clearly abused its discretion in concluding that the additional evidence the Webbs and Harpers sought to introduce would not have, as the district court said, “produce[d] a different result.” We find no basis for reversal here.

III. CONCLUSION

We affirm the judgment of the district court.

      . The Honorable Brian S. Miller, Chief Judge, United States District Court for the Eastern District of Arkansas.

      . Plaintiffs named a fourth defendant that Exxon asserts does not exist and was not served separately.

      . Because we agree with the district court’s decision to decertify the plaintiffs’ class action, the only remaining plaintiffs are Rudy and Betty Webb and Arnez and Charletha Harper of Arkansas. For them, we apply Arkansas law. See, e.g., Blankenship v. USA Truck, Inc., 601 F.3d 852, 856 (8th Cir. 2010).

      . The Webbs and Harpers argue the district court improperly limited the unreasonable interference that could give rise to a breach of contract claim "to only odor, discoloration, and physical oil damages.” We disagree with that characterization as the district court does not appear to have been limiting damages, but rather providing examples of the types of damages that might support such a claim, which were not shown.


author: BENTON, Circuit Judge.

text:
    Elizabeth MCLEOD; Heidi O’Sullivan; Sherri Slocum; Ivette Harper; Robert West; Kevin Stemwell; Stephen Miller; Peggy Maxe; Karalyn Littlefield; Colleen Friedrichs; Arlene Hornilla; Marilyn Epp; Dwight Sevaldson; Ann Carlson; Michael Baehr; Gabriele Bauer; Mark Davis; Susanne Dehnke; Frank Delaney; Paula Freeman-Brown; Barbara Fuglie; Richard Fugile; Christopher Gunn; Michelle Laurence; Robert Morris; Vicki Nellen-Jungers; Heidi Neumann; Greg Norman; Michelle Racepla; Susan Ryan; Timothy Schroeder; Diane Sundquist; Greg Zimprich, for and on behalf of themselves and other persons similarly situated, Plaintiffs-Appellees v. GENERAL MILLS, INC., Defendant-Appellant Equal Employment Advisory Council; Chamber of Commerce of the United States, Amici on Behalf of Appellant(s) AARP; Equal Employment Opportunity Commission, Amici on Behalf of Appellee(s)
    No. 15-3540
    United States Court of Appeals, Eighth Circuit.
    Submitted: November 16, 2016
    Filed: May 11, 2017

      Craig Andrew Brandt, Brent C. Snyder, Stephen J. Snyder, Snyder & Brandt, Minneapolis, MN, for Plaintiffs-Appellees.
    Susan Fitzke, Marko Joseph Mrkonich, Kathryn Wilson, Littler & Mendelson, Jeffrey Justman, Aaron Daniel Van Oort, Faegre & Baker, Minneapolis, MN, Keith C. Hult, Littler & Mendelson, Chicago, IL, for Defendant-Appellant.
    Ann Elizabeth Reesman, McGuiness & Williams, Rae T. Vann, Norris & Tysse, Washington, DC, for Equal Employment Advisory Council, Amicus on Behalf of Appellants).
    Warren Postman, Kathryn L. Comer-ford Todd, U.S. Chamber of Commerce, Washington, DC, for Chamber of Commerce of the United States, Amicus on Behalf of Appellant(s).
    Daniel Benjamin Kohrman, Senior Attorney, Laurie A. McCann, William Alvarado Rivera, Dara S. Smith, AARP Foundation Litigation, Washington, DC, for AARP, AARP Foundation, Amicus on Behalf of Appellee(s).
    Anne Warren King, Barbara L. Sloan, Equal Employment Opportunity Commission, Washington, DC, for Equal Employment Opportunity Commission, Amicus on Behalf of Appellee(s).
    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.

   BENTON, Circuit Judge.

The Age Discrimination in Employment Act, as amended by the Older Workers Benefit Protection Act, permits waivers of ADEA rights and claims—but only if they are “knowing and voluntary” as defined by statute. 29 U.S.C. § 626(f)(1). In a waiver dispute, “the party asserting the validity of a waiver shall have the burden of proving in a court of competent jurisdiction that a waiver was knowing and voluntary.” § 626(f)(3). Here, General Mills, Inc., terminated employees and offered them benefits in exchange for releasing all ADEA claims and arbitrating release-related disputes. Thirty-three employees who signed releases request a declaratory judgment that the releases were not “knowing and voluntary.” They also bring collective and individual ADEA claims. General Mills moved to compel arbitration, and the district court denied that motion. Having jurisdiction under 9 U.S.C, § 16(a)(1)(B), this court reverses and remands.

I.

In June 2012, General Mills announced it was terminating about 850 employees. General Mills offered them severance packages in exchange for signing release agreements. By the agreements’ terms, employees release General Mills from all claims relating to their terminations—including, specifically, ADEA claims. The agreements also state that claims covered by the agreements will be individually arbitrated:

[I]n the event there is any dispute or claim arising out of or relating to the above release of claims, including, without limitation, any dispute about the validity or enforceability of the release or the assertion of any claim covered by the release, all such disputes or claims will be resolved exclusively through a final and binding arbitration on an individual basis and not in any form of class, collective, or representative proceeding.

Thirty-three former General Mills employees who signed agreements sued General Mills under the ADEA. They allege, first, that their ADEA claim waivers were not “knowing and voluntary” as defined by § 626(f)(1) and related regulations, and request a declaratory judgment that the agreements do not waive their ADEA rights. They also allege that the terminations discriminated on the basis of age, and bring disparate-treatment and disparate-impact claims, both collectively and individually. General Mills moved to dismiss and compel arbitration on an individual basis. The district court denied, the motion.

II.

“This court reviews a determination concerning the arbitrability of a dispute de novo.” Owen v. Bristol Care, Inc., 702 F.3d 1050, 1052 (8th Cir. 2013). The Federal Arbitration Act “requires courts to enforce agreements to arbitrate according to their terms ... unless the FAA’s mandate has been ‘overridden by a contrary congressional command.’ ” Compu- Credit Corp. v. Greenwood, 565 U.S. 95, 132 S.Ct. 665, 669, 181 L.Ed.2d 586 (2012) (citation omitted), quoting Shear-son/American Express Inc. v. McMahon, 482 U.S. 220, 226, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987). “[I]f a dispute presents multiple claims, some arbitrable and some not, the former must be sent to arbitration even if this will lead to piecemeal litigation.” KPMG LLP v. Cocchi, 565 U.S. 18, 132 S.Ct. 23, 24, 181 L.Ed.2d 323 (2011) (per curiam).

A.

Plaintiffs assert, for the first time on appeal, that the agreements do not cover their ADEA claims. They argue that the agreement to arbitrate applies only to claims “relating to” the release of claims, and their substantive ADEA claims are not related to the release of claims. They are wrong. The agreements’ “relating to” sentence shows the parties’ intent to arbitrate both disputes about the release and substantive ADEA claims. The arbitration provision applies to “any ... claim ... relating to the above release of claims, including ... the assertion of any claim covered by the release.” The agreements explicitly state that a claim “relates to” the release of claims if it asserts a claim covered by the agreements. ADEA claims are covered by the agreements. Absent a contrary congressional command, General Mills can compel employees who signed the agreements to arbitrate their ADEA claims.

B.

The parties disagree whether there is a “contrary congressional command” overriding the FAA’s mandate to enforce their agreements to arbitrate (1) substantive ADEA claims and (2) disputes about the validity of the former employees’ waivers.

1.

No “contrary congressional command” overrides the FAA’s mandate to enforce the parties’ agreements to arbitrate substantive ADEA claims. The former employees invoke § 626(f); they do not allege that the agreements are invalid on any other statutory or common law basis. Section 626(f)(1) provides, “An individual may not waive any right or claim under this chapter unless the waiver is knowing and voluntary,” and lists a number of minimum requirements. See § 626(f)(l)(A)-(H). Section 626(f)(3) describes how to prove a waiver:

In any dispute that may arise over whether any of the requirements, conditions, and circumstances set forth in [§ 626(f)(l)-(2) ] have been met, the party asserting the validity of a waiver shall have the burden of proving in a court of competent jurisdiction that a waiver was knowing and voluntary....

The former employees’ logic is this: First, by moving to compel arbitration of their claims, General Mills is “asserting the validity of a waiver,” forcing them to forego their “right” to a jury trial and them “right” to proceed by class action. Second, if General Mills wants to assert the validity of that waiver, it “shall” (which they read as “must”) do so “in a court of competent jurisdiction” (which they read as “not in arbitration”).

The logic fails at step one. In asking the court to compel arbitration of the former employees’ claims, General Mills is not asserting the validity of a “waiver.” In § 626(f), “waiver” refers narrowly to waiver of substantive ADEA rights or claims— not, as the former employees argue, the “right” to a jury trial or the “right” to proceed in a class action.

This issue is largely controlled by 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 129 S.Ct. 1456, 173 L.Ed.2d 398 (2009). There, the Supreme Court addressed the meaning of “rights or claims” under § 626(f)(1)(C), which prohibits waiver of “rights or claims that may arise after the date the waiver is executed.” The Court held that an agreement to bring future •claims in arbitration was not a waiver of “rights or claims”: “The decision to resolve ADEA claims by way of arbitration instead of litigation does not waive the statutory right to be free from workplace age discrimination; it waives only the right to seek relief from a court in the first instance.” 14 Penn Plaza, 556 U.S. at 265-66, 129 S.Ct. 1456. See also id. at 259, 129 S.Ct. 1456 (explaining that an “agreement to arbitrate ADEA claims” is not a waiver of “the ‘right’ referred to in § 626(f)(1)”). 14 Penn Plaza thus interprets one of § 626(f)(l)’s references to “right[s] or claimfe]” to mean substantive rights to be free from age discrimination, not procedural “rights” to pursue age discrimination claims in court.

Here, the specific “rights” the former employees cite are not “rights” under § 626(f)(1). The former employees say that § 626(c)(2) gives them a “right” to a jury trial on ADEA claims. But 14 Penn Plaza forecloses categorizing a jury trial as a § 626(f)(1) “right.” Since no “rights or claims” are waived by agreeing to bring claims in arbitration, a jury trial is not a § 626(f)(1) “right.”

The former employees and amicus AARP try to distinguish H Penn Plaza by noting that it involved a pre-dispute agreement rather than a release of already-accrued claims. They argue that “rights or claims” under § 626(f)(1)(C) has a different meaning than “right or claim” under § 626(f)(1). This argument ignores the structure of § 626(f)(1). The two “right[s] or claim[s]” phrases appear in consecutive sentences, creating a “natural presumption” that the phrases “have the same meaning.” See Environmental Def. v. Duke Energy Corp., 549 U.S. 561, 574, 127 S.Ct. 1423, 167 L.Ed.2d 295 (2007), quoting Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433, 52 S.Ct. 607, 76 L.Ed. 1204 (1932). The context does not rebut this presumption. Section 626(f)(1) refers to “right[s] or claim[s]” four times. Each reference describes the same “right[s] or claim[s]” and places a specific limitation on waiver of those “rightfe] or claim[s].” Because an individual waives no “rights or claims” under § 626(f)(1)(C) by agreeing to bring ADEA claims in arbitration, an individual similarly waives no “right or claim” under § 626(f)(1) by agreeing to bring ADEA claims in arbitration.

The former employees also say that § 626(b), by incorporating 29 U.S.C. § 216(b), gives them a “right” to bring a class action. Section 626(b) provides, “The provisions of this chapter shall be enforced in accordance with the powers, remedies, and procedures provided in sections” including § 216(b). Section 216(b) says, “An action to recover ... liability ... may be maintained ... in any ... court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.” Section 626(b)’s incorporation of § 216(b) “expressly authorizes employees to bring collective age discrimination actions ‘in behalf of ... themselves and other employees similarly situated.’ ” Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989), quoting § 216(b).

Standing alone, § 216(b) does not create a non-waivable substantive right; rather, its class-action authorization can be waived by a valid arbitration agreement. Owen, 702 F.3d at 1052-55. Section 626(b)’s incorporation of § 216(b) does not elevate the procedural class-action authorization to a substantive § 626(f)(1) “right.” A close reading of § 626(b) shows why. Section 626(b) says the ADEA “shall be enforced in accordance with the powers, remedies, and procedures provided in sections” including § 626(c) and § 216(b). Section 626(c) says aggrieved persons “may bring” court actions; § 216(b) says class actions “may be maintained.” Under 14 Penn Plaza, § 626(c)’s authorization of court actions does not create a § 626(f)(1) “right.” Because § 216(b) and § 626(c) have similar language and context, § 216(b)’s authorization of class actions similarly does not create a § 626(f)(1) “right.”

In moving to compel arbitration of the former employees’ ADEA claims, General Mills did not assert the validity of a waiver of “the statutory right to be free from workplace age discrimination.” See 14 Penn Plaza, 556 U.S. at 265, 129 S.Ct. 1456. Section 626(f) is not a “contrary congressional command” overriding the FAA’s mandate to enforce the agreements to arbitrate ADEA claims. Since the agreements require individual arbitration of the former employees’ ADEA claims, the district court should have granted General Mills’s motion as to those claims.

2.

The former employees contend that the issue for declaratory judgment— whether the purported waivers of their substantive ADEA claims were “knowing and voluntary” under § 626(f)(1)—is not arbitrable. They note that § 626(f)(3) says that “the party asserting the validity of a waiver shall have the burden of proving in a court of competent jurisdiction that a waiver was knowing and voluntary” as defined in § 626(f)(1). They argue that the mandatory “shall have the burden of proving in a court of competent jurisdiction” (emphases added) is a contrary congressional command that overrides the FAA’s directive to enforce the agreements.

Although neither party contests this court’s jurisdiction over the declaratory judgment claim, this court must independently determine whether the claim presents an Article III case or controversy. In re McCormick, 812 F.3d 659, 661 (8th Cir. 2016). To satisfy the case-or-controversy requirement, a declaratory judgment action must be “definite and concrete, touching the legal relations of parties having adverse legal interests,” “real and substantial,” and “admi[t] of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127, 127 S.Ct. 764, 166 L.Ed.2d 604 (2007) (alteration in original), quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41, 57 S.Ct. 461, 81 L.Ed. 617 (1937). “Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Id., quoting Maryland Cas. Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 85 L.Ed. 826 (1941).

An Article III case or controversy may exist where a private party threatens an enforcement action that would cause an imminent injury. See id. at 130-31, 127 S.Ct. 764. Here, though, the former employees do not plead that General Mills threatens any enforcement of the ADEA claim waiver, let alone enforcement that would cause them imminent injury. Instead, they request a declaration of their rights under a hypothetical set of facts. They want to know their legal rights if, in the future, General Mills asserts that the waivers of their substantive ADEA rights were “knowing and voluntary” under § 626(f)(3). The hypothetical nature of the claim is clear from the amended complaint:

If and to the extent that General Mills maintains that any purported waiver of ‘any right or claim’ under the ADEA contained in a Release Agreement form signed by any of Plaintiffs (or by other similarly situated person who may hereafter opt in to this action) is effective, then the parties have an actual controversy, and the Court should issue declaratory relief confirming that the Release Agreement forms signed by such persons were not ‘knowing and voluntary’ under the ADEA and therefore, as a matter of law, did not that [sic] waive or impair any right or claim under the ADEA.

(emphases added). The former employees acknowledge that they have a justiciable claim only “if and to the extent” General Mills asserts the validity of their substantive ADEA claim waivers. At present, the injury (as pled by the former employees) is “conjectural” or “hypothetical”—not “actual” or “imminent” as required to satisfy Article III. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). See also MedImmune, 549 U.S. at 128 n.8, 127 S.Ct. 764 (quoting Lujan).

No Article III case or controversy arises when plaintiffs seek “a declaratory judgment as to the validity of a defense” that a defendant “may, or may not, raise” in a future proceeding. Calderon v. Ashmus, 523 U.S. 740, 747, 118 S.Ct. 1694, 140 L.Ed.2d 970 (1998). In Ashmus, prisoners sued state officials who had threatened to invoke a statute that allowed qualifying states to raise a shorter statute of limitations against habeas petitions, and granted other procedural benefits. See id. at 742-43, 118 S.Ct. 1694. The prisoners requested a declaration that the state did not qualify for the statutory benefits. See id. at 743, 118 S.Ct. 1694. The Court held there was no case or controversy:

The ‘case oh controversy’ actually at stake is the class members’ claims in their individual habeas proceedings. Any judgment in this action thus would not resolve the entire case or controversy as to any one of them, but would merely determine a collateral legal issue governing certain aspects of their pending or future suits.

Id. at 747, 118 S.Ct. 1694. Accord Coffman v. Breeze Corp., 323 U.S. 316, 324, 65 S.Ct. 298, 89 L.Ed. 264 (1945) (finding no case or controversy where patent owner sought declaratory judgment that Royalty Adjustment Act was unconstitutional because “the constitutionality of the Act is without legal significance and can involve no justi-ciable question unless and until appellant seeks recovery of the royalties, and then only if appellee relies on the Act as a defense”).

The “controversies” here are not whether the former employees waived their substantive ADEA rights. Rather, the “controversies” are the ADEA claims themselves, which the declaratory judgment action will not resolve. If the former employees won, they would still have to arbitrate the merits of the claims. If the former employees lost, they could still sue General Mills so long as General Mills did not raise waiver as an affirmative defense. The district court did not have jurisdiction over the former employees’ declaratory judgment claim.

III.

On remand, the district court should dismiss the former employees’ declaratory judgment claim for lack of jurisdiction, and grant General Mills’s motion to compel individual arbitration of the remaining substantive ADEA claims. The district court may decide whether to stay this action or dismiss it pending resolution of the arbi-trations. See Unison Co. v. Juhl Energy Dev., Inc., 789 F.3d 816, 821 (8th Cir. 2015).

This court does not decide whether General Mills can assert the validity of its waiver in arbitration. Because this court does not have jurisdiction over the declaratory judgment action, this court does not reach the question of the import of § 626(f)(3)’s instruction that “the party asserting the validity of a waiver shall have the burden of proving in a court of competent jurisdiction that a waiver was knowing and voluntary.”

⅜ ⅜ s¡: ⅜ ⅜: ⅜ ⅜

The judgment of the district court is reversed, and the case is remanded for proceedings consistent with this opinion.

      . This holding does not mean that a declaratory judgment claim that a waiver was not "knowing and voluntary” under § 626(f) could never present an Article III case or controversy. See, e.g., Newman v. District of Columbia Courts, 125 F.Supp.3d 95, 106-08 (D.D.C. 2015) (collecting cases and explaining that jurisdiction might exist if an agreement requires "tender back” of benefits or imposes penalties for pursuing substantive ADEA claims).


author: WOLLMAN, Circuit Judge.

text:
    Micah STONE, Plaintiff-Appellant v. MCGRAW HILL FINANCIAL, INC., formerly known as McGraw-Hill Companies, Defendant McGraw-Hill Global Education Holdings, LLC, a New York Corporation, Defendant-Appellee
    No. 15-3299
    United States Court of Appeals, Eighth Circuit.
    Submitted: December 13, 2016
    Filed: May 15, 2017

      Counsel who presented argument on behalf of the appellant and appeared on the brief was Melvin L. Raymond, of Saint Louis, MO.
    Counsel who presented argument on behalf of the appellee was Steven David Hurd, of New York, NY. The following attorneys also appeared on the appellee brief; Mark D. Harris, of New York, NY., Susan McAleavey, of New York, NY, Stephen H. Rovak, of St. Louis, MO., Gregory 1. Rasin, of New York, NY.
    Before WOLLMAN, SMITH, and BENTON, Circuit Judges.

      . The Honorable Lavenski R. Smith became Chief Judge of the United States Court of Appeals for the Eighth Circuit on March 11, 2017.

   WOLLMAN, Circuit Judge.

Micah Stone filed suit against McGraw-Hill Global Education Holdings, LLC (McGraw-Hill), asserting claims of employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e, 42 U.S.C. § 1981, and the Missouri Human Rights Act (MHRA), Mo. Rev. Stat. § 213.055. Stone appeals from the district court’s order granting McGraw-Hill’s motion for summary judgment. We affirm.

I. Background

In February 2007, Stone, who is African American, was hired as a Sales Representative for McGraw-Hill in Miami, Florida. He sold textbooks and other educational products to instructors and administrators at Florida colleges. He was paid a base salary of $59,384.

Stone applied for a promotion to the position of Learning Solutions Consultant (LSC) in St. Louis, Missouri, Charlotte, North Carolina, and Columbus, Ohio. He contends that his applications for the positions in Charlotte and Columbus were not considered and that he was considered for the St. Louis position because he contacted McGraw-Hill’s Vice President of Training and Professional Development. He had an in-person interview for the St. Louis position with Irene McGuinness, Vice President of Learning Solutions, and Elizabeth Wildes, Learning Solutions Manager for the Central Region. Stone claims that the parties agreed during this meeting that his starting salary would be $95,000. Stone sent a follow-up email to McGuinness purporting to confirm this agreement, to which McGuinness replied that Stone should not “get ahead of [himself]” because he had two more interviews. According to Stone, when he was ultimately offered the position with a salary of $85,000, he protested the reduction and asked Wildes if it was on account of his race, but accepted the offer after Wildes replied that Stone must “[t]ake it or leave it.”

Five other LSCs in the Central Region reported to Wildes, all of whom were white. Anni Schleicher was promoted to the LSC position in July 2011, after working for approximately five years as a McGraw-Hill Sales Representative, at a salary of $83,600. Bridget Hannenberg was hired as an LSC at a salary of $85,000, after having worked as a Publishing Representative for Pearson Education for two years and one month. Christy Rybak was hired as an LSC at a salary of $85,000; the record is silent regarding her prior experience. Brad Ritter was hired as an LSC in the Columbus, Ohio, area and was paid a higher salary than Stone. Ritter had worked as a Solutions Consultant for Pearson Education for one year and eight months. Robert Scanlon was hired as an LSC in the Pittsburgh, Pennsylvania, area and was paid a higher salary than Stone. Scanlon had worked as a Sales Director for Pearson Education for three years and six months, and had worked for Cengage Learning for six years and nine months, first as a Sales Representative and then as a Technology Specialist.

Stone was paid his $85,000 LSC salary during his transition from the Sales Representative position to the LSC position, but claims that he was required to perform the work of both positions. He requested, but did not receive, a “Spot Bonus” to compensate him for performing this dual role. Wildes’s affidavit states that Schleicher had also worked as both a Sales Representative and an LSC following her promotion and had received only her LSC salary. Stone responds that McGraw-Hill has offered no evidence showing that Schleicher was required to work in both positions; that even if she was required to do so, she \yas not required to travel as extensively as Stone; and that her work load would have been less than Stone’s because she was promoted to LSC during the summer, when schools are closed, whereas Stone was promoted in September. Stone reported the alleged reduction in his salary and the requirement to work both positions to McGraw-Hill’s human resources department.

Stone disputes McGraw-Hill’s claims that his performance as an LSC was deficient. Stone’s position as an LSC required him to work with Wildes, the Learning Solutions Manager for the Central Region and his direct supervisor; Kim Nentwig, the District Sales Manager; and the Sales Representatives in his territory. Wildes states that she received complaints from Sales Representatives that Stone had communicated with them in an arrogant and offensive manner, that he was late to meetings with them, and that “[n]o one in the district is happy with Micah.” Stone contends that these statements, as reported by Wildes in a December 28, 2011, email to McGuinness, reflect the complaints of only one Sales Representative. Wildes and McGuinness discussed Stone’s alleged performance deficiencies with him during a national sales meeting in Phoenix, Arizona, on January 7, 2012. On January 15, 2012, Wildes sent Stone an email memorializing the January 7 discussion. This email instructed Stone to be on time when meeting with Sales Representatives and customers; to work all day on college campuses with Representatives; to notify a Representative in advance before contacting a professor on the Representative’s campus; to avoid discussing royalties in a manner that seems to “buy[] adoptions”; and to respond to Representatives’ phone calls and emails within twenty-four hours.

Wildes gave Stone a written warning on March 8, 2012. The warning identified specific instances in which Stone had exhibited “Problematic Communications and Working Relationships with Key Collaborators”: on January 13, Stone had walked out of a meeting with Nentwig and another employee; the employee at the January 13 meeting reported that she hung up on Stone during a February 6 phone call, during which Stone used an aggressive tone and tried to coerce her into agreeing with Stone’s perspective on the meeting; communication between Stone and his colleagues had broken down because Stone used a “hostile or condescending tone”; Stone had placed an excessive number of phone calls to Wildes and another employee without leaving messages; and several Representatives had complained that Stone was arrogant and belligerent. The warning identified instances in which Stone had displayed “Punctuality and Attendance Issues”: on January 31, Stone failed to attend a dinner meeting without advance notice; on February 23, Stone emailed that he would be unable to attend a dinner meeting thirty minutes after he was supposed to have met his colleagues to walk to the dinner; and several Representatives reported that Stone had been late to on-campus meetings, in one case by an hour. The warning stated that had Stone displayed “Follow-up and Response Time Delays” in responding to phone calls and emails. Finally, the warning stated that Stone had shown “Organization of Work Issues” by failing to complete trip reports for campus visits and relying heavily on others to complete large projects. The warning set forth actions to improve Stone’s performance, including that Stone should copy Wildes on all his communications with customers and colleagues and that Stone should work three to four days a week on campus with Sales Representatives. It also instructed Stone to provide Wildes a plan of his weekly activities on Monday of each week and to inform Wildes at the end of each day what he had accomplished that day. The warning stated that failure to meet the expectations set forth therein would lead to further disciplinary action, including possible termination. Wildes subsequently informed Stone, in emails and phone calls, that Stone was not meeting the goals set forth in the written warning.

Stone disputes that his performance was deficient. He claims that he walked out of the January 13 meeting because Nentwig forcibly grabbed his arm. When asked why Nentwig did this, Stone replied that Nent-wig is aggressive; he had heard that Nent-wig had thrown water bottles at Representatives in the past. Nentwig denies that she grabbed Stone’s arm. She sent Stone an email the day after the meeting, apologizing for “upsetting” him. Stone contends that he missed or arrived late to meetings only with good reason and that he had good working relationships with Representatives. He argues that the requirements to work three to four full days on campus with Representatives and prepare trip reports for every campus visit were overly burdensome and were not enforced against other LSCs.

Stone also alleges that during a conference in Pittsburgh, Pennsylvania, on January 31, he overheard Hannenberg ask Wildes, “What are you going to do about Micah?” and Wildes reply, “I wish I had never hired his black ass.” Wildes denies making this statement.

Stone alleges that Wildes and Nentwig purposefully interfered with his relationships with Sales Representatives. Sales Representative Susan Vorwald testified that Wildes had asked her, for no reason, if Stone had done anything inappropriate during a meeting between the two, and Vorwald had replied that Stone had not. Vorwald testified that Nentwig had written in an email: “If your confidence is lower working with Micah, submit the leads and Trida will handle [them].” In a separate conversation, Nentwig had instructed Vor-wald to cease working with Stone. Likewise, Sales Representative Justin Brauchie stated that Nentwig had asked him leading questions, including asking, for no reason, ‘Why don’t you want to work with Micah?” Brauchie also stated that at one point Nentwig told him not to return Stone’s calls, and that “[i]t was apparent that Kim Nentwig was deliberately creating the opportunity for McGraw-Hill to get rid of Micah.”

Stone was discharged on April 26, 2012, for “poor performance,” on Wildes’s recommendation. He filed a First Amended Complaint against McGraw-Hill on April 7, 2014, alleging that he was unfairly compensated, subjected to a hostile work environment, and wrongfully discharged on account of his race and in retaliation for protesting his disparate treatment, in violation of Title VII, 42 U.S.C. § 1981, and the MHRA. The district court granted summary judgment to McGraw-Hill on the salary discrimination claim, reasoning that Stone had failed to establish a prima facie case because three white LSCs were paid a salary equal to or less than Stone’s. Further, the court held that even if Stone had established a prima facie case regarding the two white LSCs who were paid more than he was, he did not establish that McGraw-Hill’s explanation was pretext for discrimination. With respect to the hostile work environment claim, the court held that the one alleged race-based comment was insufficient to create a hostile work environment and that Stone had failed to establish a causal nexus between his race and his alleged treatment by Wildes and Nentwig. As for the discriminatory discharge claim, the court held that even if Stone had established a prima facie case, he had failed to show that McGraw-Hill’s stated reasons for discharging him were pretext for discrimination. The court also held that Stone had abandoned his retaliation claim by failing to address it in his opposition to summary judgment. Accordingly, the court granted McGraw-Hill’s motion for summary judgment.

II. Discussion

We review de novo the grant of summary judgment. Singletary v. Mo. Dep’t of Corr., 423 F.3d 886, 890 (8th Cir. 2005). “Summary judgment is appropriate if the record, viewed in a light most favorable to the non-moving party, contains no, questions- of material fact and demonstrates that the moving party is entitled to judgment as a matter of law.” Id.

Title VII makes it “an unlawful employment practice for an employer ... to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(l). “Absent direct evidence of discrimination,” we analyze a Title VII discrimination claim under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Onyiah v. St. Cloud State Univ., 684 F.3d 711, 716 (8th Cir. 2012). A plaintiff bears the initial burden to establish a prima facie case of discrimination by showing that: “(1) he is a member of a protected class; (2) he was meeting the [employer’s] legitimate job expectations; (3) he suffered an adverse employment action; and (4) similarly situated employees outside the protected class were treated differently.” Id. The burden then shifts to the employer to “articulate a legitimate, nondiscriminatory reason” for the adverse employment action. Id. (citation omitted). “The burden then shifts back to [the plaintiff] to prove that the proffered reason is pretext for discrimination.” Id. The plaintiff “retains at all times the ultimate burden of proof and persuasion.” Id.

A. Salary Discrimination Claim

The district court correctly held that even if Stone could establish a prima facie case of discrimination based on the two white LSCs—Brad Ritter and Robert Scanlon—who were paid a higher starting salary than Stone, Stone has not shown that McGraw-Hill’s proffered reasons for the salary disparity were pretext for discrimination. Stone had the burden to show that Ritter and Scanlon were “similarly situated in all relevant respects—a rigorous standard at the pretext stage.” Onyiah, 684 F.3d at 717 (internal quotation marks omitted) (quoting Torgerson v. City of Rochester, 643 F.3d 1031, 1051 (8th Cir. 2011) (en banc)). The district court concluded that Stone had failed to meet this burden because Ritter and Scanlon “were hired from competitors of McGraw-Hill and had prior experience in roles similar to the LSC position.” McGraw-Hill argues that Ritter and Scanlon were paid a higher starting salary than Stone because “each differed from Stone as to circumstances of his hire, prior experience, cost of living, and territory assigned.” Stone has conceded that Scanlon had more experience in the publishing industry than Stone at the time he was hired as an LSC, but argues that Ritter had less experience than Stone did when Ritter applied for the LSC position. Assuming that the evidence Stone offered to support this argument may be properly considered on a motion for summary judgment, it does not show that McGraw-Hill’s other proffered reasons— that Ritter was hired from a competitor and was assigned a different territory— were pretext for discrimination.

Stone also failed to establish a pri-ma fade case of salary discrimination on his claim that he was unfairly denied a “Spot Bonus” for performing the work of both an LSC and a Sales Representative. McGraw-Hill notes that Schleicher, who was also temporarily required to work as both an LSC and a Sales Representative, was not paid a “Spot Bonus.” Stone distinguishes his case from Schleicher’s on the basis that his work load and travel requirements were greater, but in any event Stone fails to establish a prima fade case because he has identified no similarly situated employee who was treated differently than he was, namely, another employee who was required to work as both an LSC and a Sales Representative and received extra compensation therefor.

B. Hostile Work Environment Claim

Stone contends that the district court erred in granting summary judgment to McGraw-Hill on his hostile work environment claim. “Hostile work environment harassment occurs when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Tademe v. St. Cloud State Univ., 328 F.3d 982, 991 (8th Cir. 2003) (internal quotation marks omitted) (quoting Bradley v. Widnall, 232 F.3d 626, 631 (8th Cir. 2000)). “To establish a Title VII race-based hostile work environment claim, a plaintiff must show that: (1) he or she is a member of a protected group; (2) he or she is subjected to unwelcome race-based harassment; (3) the harassment was because of membership in the protected group; and (4) the harassment affected a term, condition, or privilege of his or her employment.” Singletary, 423 F.3d at 892. “Harassment which is severe and pervasive is deemed to affect a term, condition, or privilege of employment.” Id.

The district court properly held that Stone had failed to show a causal connection between the- alleged acts of harassment and his race. Stone offered no evidence of racial motivation when, allegedly, Nentwig forcibly grabbed his arm during a meeting, Wildes and Nentwig interfered with Stone’s working relationships with his colleagues, and Wildes subjected Stone to unduly harsh work requirements. Moreover, Stone stated at his deposition that he was not accepted as a member of Wildes’s team because, unlike the rest of the sales team, Stone had not worked with Wildes while she was working for Pearson. See Tademe, 328 F.3d at 991 (affirming summary judgment on hostile work environment claim because “[t]he evidence shows beyond genuine dispute that the harassment stemmed from inter-departmental politics and personality conflicts”).

We also agree with the district court’s conclusion that the one race-related ■comment that Stone allegedly overheard does not constitute harassment sufficiently severe and pervasive to support a hostile work environment claim. See Singletary, 423 F.3d at 893 (holding that colleagues’ use of racial epithets referring to the plaintiff did not create a hostile work environment and stating that “our cases require that a plaintiff show more than [a] few occurrences over a course of years”). Accordingly, we affirm the district court’s grant of summary judgment on Stone’s hostile work environment claim.

C. Discriminatory Discharge Claim

Stone argues that the district court erred in granting summary judgment on his claim that he was discharged on account of his race. We agree with the district court that even if Stone had established a prima facie case of discriminatory discharge, he did not meet his burden to show that McGraw-Hill’s proffered reason for discharging him was pretext for discrimination. Stone’s documented performance deficiencies constituted a legitimate, nondiscriminatory reason for discharging him. The district court properly rejected Stone’s claims that he was subject to harsher work requirements than other LSCs, because none of the other LSCs had been issued a written warning and thus were not similarly situated to Stone in all relevant respects. See Barber v. C1 Truck Driver Training, LLC, 656 F.3d 782, 798 (8th Cir. 2011) (“To succeed in showing pretext [] the employee ‘must provide some evidence that other employees were not subject to the same level of investigation for similar conduct.’ ” (quoting Wierman v. Casey’s Gen. Stores, 638 F.3d 984, 997-98 (8th Cir. 2011))).

Notwithstanding Stone’s argument that his performance was not deficient, he has not shown that either his receipt of a written warning or his termination for failure to meet the improvement goals outlined in the warning were pretext for discrimination. Stone has produced evidence to show that his performance was not actually deficient, but he has not produced evidence showing that Wildes did not believe that Stone’s performance was deficient based on the reports she received. See Macias Soto v. Core-Mark Int’l, Inc., 521 F.3d 837, 842 (8th Cir. 2008) (“In determining whether a plaintiff has produced sufficient evidence of pretext, the key. question is not whether the stated basis for termination actually occurred, but whether the defendant believed it to have occurred.”). Even if Stone is correct that Wildes overstated his shortcomings and that many of the deficiencies she identified were due to factors beyond his control, the evidence is insufficient to support a conclusion that McGraw-Hill used Stone’s documented performance deficiencies as pretext to discharge him on account of his race.

D. Retaliation Claim

Stone does not seem to challenge the district court’s conclusion that he had abandoned his retaliation claim. See Satcher v. Univ. of Ark. at Pine Bluff Bd. of Trs., 558 F.3d 731, 735 (8th Cir. 2009). In any event, any claim of retaliatory action would fail, because Stone has produced no evidence showing a causal connection between the alleged retaliatory act and protected conduct. See Arraleh v. County of Ramsey, 461 F.3d 967, 977-78 (8th Cir. 2006) (noting that temporal proximity alone is generally insufficient to create a genuine factual dispute on a retaliation claim).

The judgment is affirmed.

      . The Honorable Ronnie L. White, United States District Judge for the Eastern District of Missouri.

      . An "adoption” is an instructor's decision to use a McGraw-Hill product in his or her class, and a "royalty” is a percentage of each sale paid to a product's author.

      . Because Stone relies on circumstantial evidence of discrimination, the district court correctly assessed his 42 U.S.C. § 1981 claim under the same standard as his Title VII claim, and we do the same. See Johnson v. AT & T Corp., 422 F.3d 756, 761 (8th Cir. 2005).

      . The district court also granted summary judgment to McGraw-Hill on Stone's MHRA claim. In his opening brief on appeal, Stone merely mentioned the MHRA in passing. By failing to explain why his state-law claim should survive, he has waived any appeal from the adverse grant of summary judgment on the MHRA claim. See Ahlberg v. Chrysler Corp., 481 F.3d 630, 634 (8th Cir. 2007) (''[P]oints not meaningfully argued in an opening brief are waived.”).

      . Even if, as Stone contends, .McGraw-Hill had advertised that the LSC position required five years' experience in higher-education sales, the fact that Ritter was not held to this requirement does not by itself show that the reasons for hiring him nonetheless demonstrated pretext.

      . Stone asserts that "although [he] was not specifically asked whether Nentwig's conduct was motivated by race, and he never so testified,” he alleged a racial motive in his First Amended Complaint and he "believes that Nentwig[’s] conduct was racially motivated.” This mere allegation is insufficient to defeat a motion for summary judgment. Fed. R. Civ. Proc. 56(c).