In Re Alcatel Alstho

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 2, 2001
• Docket: 00-40004
• Status: Unpublished

Opinion

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 R. 47.5 the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.