In Re Alcatel Alstho ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40004
ABC ARBITRAGE PLAINTIFFS GROUP; ET AL,
Plaintiffs,
KEVIN C. ALAIMO; JIM MYCKLEBY,
Plaintiffs-Appellants,
versus
SERJE TCHURUK; NET ACQUISITION INC;
JEAN-PIERRE HALBRON; AMBROSE ROUX;
RAND V ARASKOG; DANIEL BERNARD;
PHILIPPE BISSARA; PAOLO CANTARELLA;
GUY DEJOUANY; JACQUES FRIEDMANN;
NOEL GOUTARD; FRANCOIS DE LAAGE DE MEUX;
PIERRE-LOUIS LIONS; THIERRY DE LOPPINOT;
BRUNO VAILLANT; MARC VIENOT;
HELMUT WERNER; ALCATEL SA; ALCATEL USA INC;
MIKE POTTER; KRISH PRABHU; ALCATEL
NETWORK SYSTEMS INC; ALCATEL ALSTHOM,
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.
PER CURIAM:2
Appellees contend that we may not take jurisdiction of this
appeal because, inter alia, 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. 58.3
Appellees are correct that the challenged order of the district
court–its twelve page “Memorandum Opinion and Order” dated November
30, 1999–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
1
Circuit Judge of the Ninth Circuit, sitting by designation.
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opinion should not be published and is not precedent except under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.
3
Appellees also contend that appellate jurisdiction is lacking
because a certificate under Fed. R. Civ. P. 54(b) is necessary but
not present. We do not address that matter. We note, 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.
2
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. In the portion of
their brief arguing that we lack appellate jurisdiction they
assert, inter alia, “the District Court never entered separate
judgment as required by Rule 58" (and there are other references to
noncompliance with Rule 58).
Accordingly, we may not take jurisdiction and the appeal is
DISMISSED.4
4
Should a new appeal be taken after compliance with Rule 58,
new, current briefs shall be submitted.
3