Soo Line R. Co. v. Escanaba & Lake Superior R. Co.

• Decision Date: 19 April 1988
• Docket Number: No. 87-1975,87-1975
• Citation: 840 F.2d 546
• Parties: SOO LINE RAILROAD COMPANY, Plaintiff-Appellant, v. ESCANABA & LAKE SUPERIOR RAILROAD COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 546

840 F.2d 546

SOO LINE RAILROAD COMPANY, Plaintiff-Appellant, v. ESCANABA & LAKE SUPERIOR RAILROAD COMPANY, Defendant-Appellee.

No. 87-1975.

United States Court of Appeals Seventh Circuit.

Argued Jan. 4, 1988.

Decided Feb. 23, 1988.

Rehearing Denied April 19, 1988.

Robert V. Abendroth, Whyte & Hirschboeck, S.C., Milwaukee, Wis., for plaintiff-appellant.

Larry H. Mitchell, Arnall, Golden & Gregory, Washington, D.C., for defendant-appellee.

Before CUDAHY, EASTERBROOK, and KANNE, Circuit Judges.

EASTERBROOK, Circuit Judge.

The Soo Line Railroad and the Escanaba & Lake Superior Railroad are locked in a durable struggle attributable to the Connecting Line, some 21 miles of track between Crivitz and Marinette, Wisconsin. In re Chicago, Milwaukee, St. Paul & Pacific R.R., 784 F.2d 831 (7th Cir.1986) (Escanaba I ), holds that the Soo must arbitrate with the Escanaba about ownership of the line. (The arbitrators awarded the line to the Escanaba and fixed its price. A district court in Minneapolis enforced this award.) In re Chicago, Milwaukee, St. Paul & Pacific R.R., 789 F.2d 1281 (7th Cir.1986) (Escanaba II ), holds that the Soo, rather than the successor to the bankrupt Milwaukee Road, is the right party to arbitrate with the Escanaba about any damages attributable to the deferred conveyance. This opinion is fated to be known as Escanaba III.

Before we decided Escanaba I, the Soo and the Escanaba had filed suits in the Eastern District of Wisconsin. The Escanaba demanded that the Soo arbitrate with it about damages attributable to the delay. The Soo demanded that Escanaba pay about $344,000 in interline freight balances. An "interline balance" is the net payable after two railroads have offset sums due to each other for similar services. When a shipment of freight moves on two or more lines, a single line will collect the whole charge (the originating carrier from the shipper, or the terminating carrier from the consignee). The collecting railroad must reimburse the railroads that carried the freight, according to divisions of revenues filed with the ICC. On the 18th of each month all of the nation's railroads send each other abstracts of waybills showing which ones moved how much freight; on the 20th they send each other statements of sums collected on account of these movements. Each pair of railroads sets off the accounts between them, leaving a balance payable. This interline balance is supposed to be paid promptly. Just how promptly has been a subject of controversy. See In re Iowa R.R., 840 F.2d 535 (7th Cir.1988); Boston & Maine Corp. v. Chicago Pacific Corp., 785 F.2d 562 (7th Cir.1986); In re Penn Central Transportation Co., 486 F.2d 519 (3d Cir.1973) (en banc); Southern Ry. v. United States, 306 F.2d 119 (5th Cir.1962). We need not enter that thicket. It is enough to know that the payment of interline balances is essential in a system in which railroads regularly collect sums attributable to transportation performed by other carriers.

The district court consolidated the two cases. In light of Escanaba I and II, the district court held that the Soo is obliged to arbitrate the Escanaba's claim for damages as a result of the delay in transferring the Connecting Line. The last paragraph of the opinion deals with the claim for interline balances:

[T]he Escanaba has only weakly challenged the Soo's claim that it is due $344,481.94 for past services. The Soo, on the other hand, has adequately substantiated its position. The Soo's motion for summary judgment is therefore GRANTED.

On December 4, 1986, the court inserted this language on the form customarily used for final judgments under Fed.R.Civ.P. 58 Escanaba's motion for summary judgment is granted in 85-C-810 and Soo's motion for summary judgment is granted in 85-C-1695.

This document does not specify the relief to which either party is entitled.

The Soo took its medicine on the arbitration component of the case, although the parties still disagree about where the arbitration should be held. The Soo prefers Minneapolis, which will direct any enforcement proceedings to the Eighth Circuit; the Escanaba prefers Milwaukee, in the hope that a suit to enforce would return to the district judge who ordered the Soo to arbitrate. The Escanaba was not happy about the disposition of the claim for interline balances, however. It filed a motion for reconsideration under Fed.R.Civ.P. 59 or, in the alternative, for a stay of enforcement under Fed.R.Civ.P. 62(h).

The Soo also was unhappy, because it had requested pre-judgment interest. It reminded the district judge that it wanted that relief. In May 1987 the district court entered an order, the entire operative language of which is:

I find that, considering the rather peculiar circumstances of these cases, the Escanaba is entitled to the relief it seeks. Accordingly, its motion is GRANTED, and the judgment in 85-C-1695 is stayed until the parties' arbitration proceeding is completed. No bond is required.

This order did not address the pending request for interest, so the Soo sent the district judge a letter seeking clarification and an explicit resolution of the question. The district court did not respond to this letter. The Soo filed a notice of appeal. It protests the stay and seeks prejudgment interest.

I

This case is shot through with jurisdictional problems.

1. Despite the request in Ivanov-McPhee v. Washington National Insurance Co., 719 F.2d 927, 930 n. 2 (7th Cir.1983), that district judges indicate the extent to which cases have been consolidated, the order dealing with these two is silent on the subject. Have they been consolidated just to hold convenient hearings, or have they been merged? The question is important because appellate jurisdiction depends on the finality of the judgment, and a disposition might be final with respect to one case but not the other. If the cases have been merged for all purposes, any open question prevents an appeal in the absence of findings under Rule 54(b); if the cases retain separate identities, appellate jurisdiction depends only on the finality of the disposition of each separate case. See Sandwiches, Inc. v. Wendy's International, Inc., 822 F.2d 707 (7th Cir.1987).

The district court entered a single judgment in the two cases, which suggests that they are merged. The Escanaba insists that the arbitration case is alive in the district court because the district judge may entertain one party's request to enforce (and the other's request to set aside) any award. This would prevent an appeal concerning the interline balance, if the cases are merged. Under Ivanov-McPhee and Sandwiches, however, we inquire whether cases that have been "consolidated" to an unspecified degree are functionally similar and present overlapping issues. Until the district judge granted a stay of the interline balance case pending the arbitrators' award, we would not have supposed that the cases are linked by more than the identity of the parties.

We shall not have to decide whether these cases have been consolidated in the sense of merger, because we believe that the order compelling the parties to arbitrate is independently final. We had a similar problem in Escanaba I and observed that an order compelling arbitration ordinarily is not final because much remains to be done. But "[t]hrough a 'fluke in the law' ... an order to arbitrate is nonetheless appealable if it terminates all proceedings in the district court." 784 F.2d at 833 (citation omitted). The order in Escanaba I did not terminate the case, so appellate jurisdiction depended on a separate fluke, one concerning bankruptcy appeals under the law that prevailed before the Bankruptcy Code of 1978. The order in this case does terminate the proceedings. The district judge sent the parties packing--perhaps all the way to Minneapolis. Even if the arbitrators decide to meet in Milwaukee (as the Escanaba says they must, a question on which we express no view), both sides may be satisfied with the result. (This is a theoretical possibility only, given the parties' track records.) If one party seeks judicial review, that will be a new suit and may be heard by a different judge. City of Naples v. Prepakt Concrete Co., 490 F.2d 182 (5th Cir.1974). We conclude, then, that the order to arbitrate was "final", so that even if the cases are fully consolidated, the judgment of December 4, 1986, is appealable--provided it is "final" with respect to the interline balances too.

2. The judgment entered in this case is defective because it does not specify the relief to which the prevailing parties are entitled. The Soo could not execute on a judgment saying that its motion for summary judgment is granted. To be final, a judgment must be self-contained and specify the relief awarded; it is not enough to refer parties to the court's opinion. See, e.g., Foremost Sales Promotions, Inc. v. Director, BATF, 812 F.2d 1044 (7th Cir.1987). Foremost dismisses an appeal from a similarly incomplete judgment.

This case, however, contains a final decision even if it does not contain a final judgment. The statute, 28 U.S.C. Sec. 1291, authorizes appeals from final decisions, and the parties may waive the requirement of a final judgment on a separate paper complying with Rule 58. Bankers Trust Co. v. Mallis, 435 U.S. 381, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978). The parties have briefed this appeal fully; the Escanaba's brief represented that the decision is appealable (though it considered only a problem yet to be discussed); the district court itself thought it had liquidated the damages. Why else did it "stay" the award in May? A stay is unnecessary if there is not yet a final decision. The district court's docket sheet recites that the judgment awards $344,481.94 to the Soo, even though the judgment is silent on that question. The Soo is entitled as a matter of course to an order under Fed.R.Civ.P. 60(a) amending the judgment to recite the relief...