Smart v. Sunshine Potato Flakes, L.L.C. ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 00-2656
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John Smart; Sota Foods, Inc., d/b/a King *
of Potatoes; John Smart & *
Associates, Inc., *
*
Plaintiffs - Appellants, * Appeal from the United States
* District Court for the
v. * District of North Dakota.
*
Sunshine Potato Flakes, L.L.C., * [UNPUBLISHED]
*
Defendant - Appellee. *
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Submitted: May 16, 2001
Filed: May 22, 2001
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Before LOKEN, JOHN R. GIBSON, and FAGG, Circuit Judges.
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PER CURIAM.
In August 1997, John Smart, John Smart & Associates, Inc., and Sunshine Potato
Flakes, L.L.C., entered into an Exclusive Distributor Agreement containing a broad
arbitration clause. The contractual relationship ended in January 2000, and arbitration
proceedings commenced in which breach-of-contract claims and counterclaims have
been asserted. John Smart and two of his companies filed this diversity action against
Sunshine, alleging that a post-termination letter from Sunshine’s plant manager to
customers was defamatory. Responding to a motion by Sunshine, the district court1
entered an order staying the lawsuit and directing the parties to arbitrate this dispute.
The Smart plaintiffs appeal, arguing their defamation claims are not arbitrable.
Absent a district court certification under 28 U.S.C. § 1292(b) -- and there was
no such certification in this case -- an interlocutory order staying an action and directing
arbitration is not appealable. See 9 U.S.C. § 16(b); Lebanon Chem. Corp. v. United
Farmers Plant Food, Inc., 179 F.3d 1095, 1102 (8th Cir. 1999). Accordingly, the
appeal is dismissed for lack of jurisdiction. Appellee’s motion for an award of costs
and attorneys’ fees is denied.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
1
The HONORABLE RODNEY S. WEBB, Chief Judge of the United States
District Court for the District of North Dakota.
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