In Re Alcatel Alstho ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40850
ABC ARBITRAGE PLAINTIFFS GROUP; ET AL,
Plaintiffs,
ALCATEL PLAINTIFFS GROUP,
Plaintiff-Appellant,
versus
SERJE TCHURUK; ET AL,
Defendants,
SERJE TCHURUK;
JEAN-PIERRE HALBRON; ALCATEL SA,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Texas
(4:99-MD-1263)
May 2, 2001
Before GARWOOD, HALL,1 and BARKSDALE, Circuit Judges.
1
Circuit Judge of the Ninth Circuit, sitting by designation.
PER CURIAM:2
Appellees contend (Appellees’ brief, statement of jurisdiction
and pp. 20, 21) that we may not take jurisdiction of this appeal
because the judgment sought to be appealed has not been “set forth
on a separate document”–i.e. a document separate from that
explaining the court’s reasons for the complained of order or
ruling–as required (in addition to entry on the docket under FED.
R. CIV. P. 79(a)) by FED. R. CIV. P. 58. Appellees are correct that
the challenged order of the district court–its thirty-two page
“Memorandum Opinion and Order” dated June 23, 2000–does not comply
with Rule 58 in this respect, and there is no other document
separate therefrom, embodying only the ruling or order of the
court. While we can take jurisdiction of an appeal notwithstanding
noncompliance with Rule 58's separate document requirement, our
prior precedents, binding on this panel, hold that we can do so
only if that noncompliance has been waived by both the appellant
and the appellee. Silver Star Enterprises, Inc. v. M/V Saramacca,
19 F.3d 1008, 1012-13 (5th Cir. 1994); Theriot v. ASW Well Service,
Inc., 951 F.2d 84 (5th Cir. 1992); Seal v. Pipeline, Inc., 724 F.2d
1166 (5th Cir. 1984). See also Transit Management of SELA v. Group
Ins. Admin., 226 F.3d 376, 381-82 (5th Cir. 2000). Appellees have
not waived this requirement.
2
Pursuant to 5TH CIR. R. 47.5 the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
2
Accordingly, we may not take jurisdiction and the appeal is
DISMISSED.3
3
Should a new appeal be taken after compliance with Rule 58,
new, current briefs shall be submitted.
We note that there may be a possible question whether a
certificate under FED. R. CIV. P. 54(b), which is not present, is
necessary to confer appellate jurisdiction here. We do not resolve
that matter. We observe, however, that when a judgment in
compliance with Rule 58 is entered the district court could moot
any possible question in this respect which might arise on a
subsequent appeal by also making an appropriate Rule 54(b)
certificate.
3