Alstom Caribe, Inc. v. Geo. P. Reintjes Co.

United States Court of Appeals
For the First Circuit

No. 06-2386

ALSTOM CARIBE, INC., F/K/A
COMBUSTION ENGINEERING CARIBE, INC., ET AL.,

Plaintiffs, Appellees,

v.

GEO. P. REINTJES CO., INC.,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Raymond L. Acosta, Senior U.S. District Judge]

Before

Lipez, Circuit Judge,
Selya, Senior Circuit Judge,
and DiClerico,* District Judge.

Paul G. Schepers, with whom Gregory S. Gerstner, John P.
Lynch, and Seigfreid, Bingham, Levy, Selzer & Gee, P.C. were on
brief, for appellant.
José A. Axtmayer, with whom G. William Quatman, William E.
Quirk, and Shughart Thomson & Kilroy, P.C. were on brief, for
appellees.
Robert C. Niesley, with whom Donna R. Tobar and Watt, Tieder,
Hoffar & Fitzgerald, L.L.P. were on brief, for provisional
intervenor.

April 18, 2007

*
Of the District of New Hampshire, sitting by designation.
 SELYA, Senior Circuit Judge. We are confronted with a

procedural motley, in which a district judge took a short-cut that

resulted in the issuance of an inherently self-contradictory order.

That order (together with an implementing order issued the same

day) commanded the deposit of certain funds into the registry of

the district court; denied intervention by a corporation that

claimed a right to the funds; transferred the funds — but not the

case — to a different court in a different circuit; and, finally,

entered a judgment of dismissal.

A party to the case had expected to receive the funds in

settlement of pending claims. That party's ambitions were

frustrated by the order, and it moved for reconsideration. Upon the

denial of its motion, it filed this timely appeal.

The short-cut taken by the district court has created a

number of complications, some jurisdictional in nature. Once we

clear the jurisdictional hurdles, we conclude that the order

appealed from is legally insupportable in at least one respect and

internally inconsistent in other respects. We then explain why

those bevues are not harmless and address a further complication as

to choice of remedy. In the end, we vacate the order and remand

with specific instructions as to future proceedings.

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 I.

Background

This case has a long and tortured history. For present

purposes, however, the details of the original dispute are no more

than marginally relevant. Accordingly, we offer only a decurtate

summary.

In the summer of 2000, the Alstom parties1 retained a

contractor, Geo. P. Reintjes Co. (Reintjes), to perform work on a

power plant located in Puerto Rico. A surety company, St. Paul

Fire & Marine Insurance Co. (St. Paul), furnished payment and

performance bonds for Reintjes in connection with the work.

In the fullness of time, the contracting parties'

relationship shifted from the board room to the courtroom. Each

sued the other. Alstom's suit (which named St. Paul as an

additional defendant) claimed faulty workmanship while Reintjes's

suit claimed non-payment for work performed. These actions were

brought in different federal venues: Alstom chose the District of

Puerto Rico (where the power plant was located) whereas Reintjes

chose the Western District of Missouri (where it maintained its

principal place of business). The Missouri court eventually

transferred the latter suit, see 28 U.S.C. § 1404(a), and it was

1
Both Alstom Power, Inc. and Alstom Caribe, Inc. (formerly
known as Combustion Engineering Caribe, Inc.) are parties to this
case. For ease in reference, we do not distinguish between them
but, rather, refer to them collectively as "Alstom."

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consolidated with the former suit in Puerto Rico's federal district

court. This history explains why the caption of this case lists

Alstom as the plaintiff, even though the issues on appeal concern

claims made by Reintjes against Alstom.

Late in 2003, St. Paul settled with Alstom for

$2,925,000. In return, Alstom dropped its claims against both St.

Paul and Reintjes. Reintjes proceeded with its suit against Alstom

but disclaimed any obligation to reimburse St. Paul.

By April of 2005, Reintjes's claims against Alstom were

still unresolved. At that time, St. Paul brought a new suit

against Reintjes in the Western District of Missouri. That suit

sought indemnification for the sums expended by St. Paul in

reaching a settlement with Alstom. Reintjes denied any liability

for indemnification.

Matters came to a head in the summer of 2006 when Alstom

agreed to pay Reintjes $2,000,000 in settlement of Reintjes's

claims against it. With the sweet smell of money wafting through

the air, St. Paul claimed an interest in the settlement proceeds on

theories of indemnification and equitable subrogation. Based on

those claims, it sought to intervene in the pending Puerto Rico

action. See Fed. R. Civ. P. 24. Alstom opposed intervention but,

in the alternative, asked that it be allowed to deposit the

settlement amount with the district court on the understanding

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that, by doing so, it would be deemed to have complied fully with

its obligations under the settlement agreement.

Reintjes objected to the other parties' motions. It

opposed intervention on the ground that St. Paul was, in effect,

seeking an unwarranted prejudgment attachment; it opposed Alstom's

exit strategy on the ground that payment of the funds into the

registry of the court would violate the terms of the settlement

agreement.

On July 28, 2006, the Puerto Rico district court denied

St. Paul's motion to intervene but nonetheless instructed Alstom to

pay the settlement amount into the registry of the court (thereby

satisfying all of its obligations under the settlement agreement).

In the same order, the court commanded the clerk, immediately upon

receipt of Alstom's deposit, to remit the funds to the Western

District of Missouri (the court in which St. Paul's indemnification

action was pending). The court did not cite any authority for the

transfer of the funds, nor did it purport to transfer any claim or

cause of action from the District of Puerto Rico to the Western

District of Missouri. That same day, the Puerto Rico district

court entered a final judgment dismissing the Puerto Rico

litigation.2 The court subsequently denied Reintjes's motion for

reconsideration without elaboration.

2
For simplicity's sake, we treat this implementing order as
part and parcel of the main order.

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 Reintjes did not move to stay the contemplated transfer

of the funds. Thus, when Alstom made the deposit, the clerk of the

Puerto Rico district court promptly forwarded the funds to the

Western District of Missouri, and that court assumed control of

them. Reintjes asked the transferee court to release the funds to

it, but that motion was denied pending an adjudication of the

merits of St. Paul's claims.

Meanwhile, Reintjes initiated this appeal. In it,

Reintjes beseeches us to reverse the multi-faceted order of the

Puerto Rico district court and to instruct the transferee court to

disburse the deposited funds to it. We have allowed St. Paul to

participate in this proceeding as a provisional intervenor.

Because it has become apparent that St. Paul has a substantial

stake in the outcome and that its interests are not fairly

represented by any other party, we today grant St. Paul's motion

and authorize its intervention in these proceedings as an appellee.

See Mangual v. Rotger-Sabat, 317 F.3d 45, 62 (1st Cir. 2003)

(confirming the existence of "discretion to permit intervenors at

the appellate level").

II.

Appellate Jurisdiction

As a threshold matter, St. Paul asserts that we lack

jurisdiction to entertain this appeal. Its principal

jurisdictional argument is that the Puerto Rico district court's

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order was not final and, thus, not immediately appealable. See 28

U.S.C. § 1291 (limiting appellate jurisdiction in most instances to

"final decisions").

For this purpose, a "final decision" is one that "ends

the litigation on the merits and leaves nothing for the court to do

but execute the judgment." Catlin v. United States, 324 U.S. 229,

233 (1945). Given this definition, there is no doubt that, had the

district court granted St. Paul's motion to intervene and then

transferred the case (along with the funds) to the Western District

of Missouri, we would not have jurisdiction to hear this appeal.

After all, transfer orders typically are not regarded as final

orders and, accordingly, are not subject to challenge by way of an

immediate appeal.3 See Subsalve USA Corp. v. Watson Mfg., Inc.,

462 F.3d 41, 47 (1st Cir. 2006).

With this case law in mind, St. Paul suggests that the

July 28 order was the functional equivalent of a transfer order

and, thus, should be treated as non-final in determining its

eligibility for immediate appellate review. This suggestion

overlooks the particulars of the events that transpired here.

3
The same is generally true of deposit orders under Federal
Rule of Civil Procedure 67. Orders granting or denying Rule 67
motions are not immediately reviewable unless they satisfy the
strictures of the collateral order doctrine or qualify as
injunctions. See Baxter v. United Forest Prods. Co., 406 F.2d
1120, 1123 (8th Cir. 1969).

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Chronicling those events exposes the implausibility of St. Paul's

suggestion.

To begin, the Puerto Rico district court denied St.

Paul's motion to intervene. This is significant because, without

St. Paul in the case, the court's approval of the settlement

resolved all the outstanding claims between those who were then

parties to the case and, therefore, concluded the controversy. It

is impossible to reconcile the denial of intervention with the

notion that the district court impliedly transferred St. Paul's

claims to the Western District of Missouri. Without St. Paul in

the case, there was no cause of action remaining to be transferred.

In all events, at no point did the Puerto Rico district

court say that it intended to transfer the case to the Western

District of Missouri. It simply directed the clerk to forward the

funds to the Missouri court. District courts speak to appellate

courts primarily through the orders that they enter, see, e.g.,

Subsalve, 462 F.3d at 44; Advance Fin. Corp. v. Isla Rica Sales,

Inc., 747 F.2d 21, 26 (1st Cir. 1984), and the order in question

here does not bespeak any such intention.

If more were needed — and we doubt that it is — other

indicia in the record make it pellucid that the Puerto Rico

district court did not think that it had transferred the case to

the Western District of Missouri. The most telling indicium is

that, on the same day that it issued the Rule 67 order, the Puerto

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Rico district court dismissed all of the claims then pending before

it. The order of dismissal would have been entirely superfluous

had the court intended to transfer the action.

To say more on this point would be to paint the lily.

Simply put, the July 28 order concluded the Puerto Rico litigation

in Puerto Rico, and no remnant of it lives on in the Western

District of Missouri. Because the district court acted to end the

litigation, not to transfer it, the order appealed from constitutes

a final decision. See Tootle v. Sec'y of Navy, 446 F.3d 167, 173

(D.C. Cir. 2006); cf. Subsalve, 462 F.3d at 44-47 (finding an

internally inconsistent order that purported both to dismiss and to

transfer a case immediately appealable for the purpose of resolving

the inconsistency). Consequently, we have jurisdiction to review

that order under 28 U.S.C. § 1291.

St. Paul advances two other arguments of a jurisdictional

nature. Neither argument is persuasive.

First, St. Paul contends that our jurisdiction is limited

by the language of Reintjes's notice of appeal, which identifies

the denial of its motion for reconsideration rather than the July

28 order itself. See, e.g., Constructora Andrade Gutiérrez v. Am.

Int'l Ins. Co., 467 F.3d 38, 43-44 (1st Cir. 2006) (holding that in

some circumstances, enumeration of particular rulings in a notice

of appeal precludes appellate litigation of unenumerated rulings).

Here, however, the propriety of denying reconsideration is

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inextricably intertwined with the correctness of the original

order; hence, no party could conceivably have been prejudiced by

Reintjes's awkward locution. Given that circumstance, we do not

think that the wording of the notice of appeal presents a

jurisdictional bar. See Young v. Gordon, 330 F.3d 76, 80 (1st Cir.

2003) (holding reference to denial of a motion for reconsideration

in a notice of appeal adequate to ground an appeal from the

underlying judgment when the "desire to appeal from the underlying

judgment [was] sufficiently plain" and the opposing parties "were

not misled by the inartfully drafted notice of appeal"); see also

Kotler v. Am. Tobacco Co., 981 F.2d 7, 11 (1st Cir. 1992) (noting

that "we do not examine the notice [of appeal] in a vacuum" but,

rather, determine whether, in context, it "adequately apprised" one

party of the other's intention to appeal a given order).

Second, St. Paul mentions a qualitatively different

impediment to our jurisdiction. It posits that we must stay our

hand because we no longer have any authority over the settlement

funds. We accept the premise of that argument — our lack of

authority over the funds on deposit — but we reject the conclusion

that St. Paul draws from that premise.

It cannot be gainsaid that our supervisory authority is

circumscribed by circuit boundaries. See 28 U.S.C. § 1294. For

that reason, we lack the raw power to order the Missouri district

court — a court that sits within the Eighth Circuit — to disburse

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the sum on deposit to Reintjes (or any other party, for that

matter) or transfer the funds back to the Puerto Rico district

court. See Matrix Grp. Ltd. v. Rawlings Sporting Goods Co., 378

F.3d 29, 32 (1st Cir. 2004). But although this limitation affects

the nature of the relief that we may decree, it does not divest us

of jurisdiction. See id.

In pressing for a different outcome, St. Paul relies on

the decision in Fultz v. Rose, 833 F.2d 1380 (9th Cir. 1987). It

cites Fultz for the proposition that an "appellate court has no

authority to review where the property that is subject of the

appeal is transferred outside the court's jurisdiction."

Intervenor's Br. at 4. But unlike the instant case, Fultz was a

case in which the controversy was rendered moot because the court

could not grant "any effective relief from the order" of which the

appellant complained. Id. at 1380 (emphasis supplied); see In re

Nat'l Mass Media Telecomm. Sys., Inc., 152 F.3d 1178, 1180 (9th

Cir. 1998) (discussing Fultz).

The case at hand is a horse of a quite different hue.

Reintjes has asked us to reverse the district court's allowance of

the Rule 67 motion and to wipe away its exoneration of Alstom.

Regardless of whether or not we can recall the funds, we can

effectively reverse, modify, or vacate the July 28 order in many of

its aspects — and those aspects have independent legal

significance.

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 In short, a district court within this circuit has

entered a final order that has continuing legal significance

regardless of what court has custody of the deposited funds. No

more is exigible to keep our jurisdiction intact. Although our

inability to ensure a recapture of the funds is regrettable, that

circumstance is by no means inimical to our exercise of appellate

jurisdiction.

III.

The Merits

In the last analysis, this appeal poses the following

question: Does the multi-purpose July 28 order — which denied

intervention, mandated deposit of the settlement funds pursuant to

Rule 67, transmitted those funds to the Western District of

Missouri, dismissed the Puerto Rico action, and exonerated Alstom

from any further liability — have a sound basis in law? We answer

that question in the negative.

We start this phase of our inquiry with Rule 67, under

which the Puerto Rico district court authorized the deposit of the

funds. The rule states:

In an action in which any part of the relief
sought is a judgment for a sum of money or the
disposition of a sum of money or the
disposition of any other thing capable of
delivery, a party, upon notice to every other
party, and by leave of court, may deposit with
the court all or any part of such sum or thing
. . . .

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Fed. R. Civ. P. 67. The core purpose of Rule 67 is to relieve a

party who holds a contested fund from responsibility for

disbursement of that fund among those claiming some entitlement

thereto. See 12 Charles Alan Wright, Arthur R. Miller & Richard L.

Marcus, Federal Practice & Procedure § 2991 (2d ed. 1997). It

follows logically that a district court should not grant a Rule 67

motion unless the question of entitlement is genuinely in dispute.

See, e.g., Gulf States Utils. Co. v. Ala. Power Co., 824 F.2d 1465,

1475 (5th Cir. 1987). Moreover, the entitlement dispute must be

live; that is, the dispute must be extant at the time the court is

asked to grant the Rule 67 motion. See Mfrs. Hanover Overseas

Capital Corp. v. Southwire Co., 589 F. Supp. 214, 221 (S.D.N.Y.

1984).

Alstom argues that, given the rancorous dispute between

St. Paul and Reintjes over the settlement proceeds, it had a perfect

right to avail itself of the prophylaxis of Rule 67; invoking that

rule permitted it to avoid the specter of duplicative liability.

St. Paul echoes Alstom's refrain. It adds, moreover, that the

transfer of the Rule 67 funds to the Western District of Missouri

was a prudent step, ensuring that the real parties in interest could

air their differences and enabling a court of competent jurisdiction

to resolve the entitlement dispute.

Reintjes demurs. It asserts that St. Paul's claim to the

funds is made up out of whole cloth and that the Puerto Rico

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district court's denial of St. Paul's motion to intervene is the

proof of the pudding. Additionally, it notes that Alstom's request

for Rule 67 relief was contingent upon the district court's granting

of the motion to intervene (which Alstom opposed). Building on this

foundation, Reintjes asseverates that allowing the deposit and

transferring the deposited funds after denying the motion to

intervene exceeded the district court's authority.

As a general proposition, it is within a district court's

sound discretion to accept a deposit of settlement funds in order

to allow a settling defendant to withdraw from litigation while

competing claimants continue to squabble over their entitlement to

the settlement proceeds. See Garrick v. Weaver, 888 F.2d 687, 694

(10th Cir. 1989). As a corollary of this proposition, a defendant

may be allowed to tender a Rule 67 deposit even if one or more of

the competing claimants is not a party to the action. See, e.g.,

U.S. Overseas Airlines, Inc. v. Compania Aerea Viajes Expresos de

Venezuela, 161 F. Supp. 513, 516 (S.D.N.Y. 1958). At first blush,

the challenged order may appear to fit within the confines of these

precedents.

Wise men have recognized for more than twenty-five

centuries that appearances sometimes can be deceiving, see Aesop,

The Wolf in Sheep's Clothing (circa 550 B.C.), and that is the case

here. The Puerto Rico district court did more than grant the motion

for deposit. It simultaneously denied St. Paul's request for

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intervention, transferred the deposited funds to another district,

and dismissed the case. As we explain below, one part of the

court's order is contrary to law and, in all events, the various

components of the order are internally inconsistent.

The most glaring defect in the order is the transmittal

of the deposited funds to the Western District of Missouri without

a concomitant transfer of any case or cause of action. Rule 67

instructs that deposited funds are to be withdrawn only in

accordance with certain enumerated statutes.4 None of those

statutes authorizes the type of naked transfer employed here.

The fact that one such statute states that deposited

funds are to be disbursed by "order of court," 28 U.S.C. § 2042,

does not salvage the transfer. That language cannot conceivably be

read to give the district court carte blanche to dispose of

deposited funds as it sees fit, without regard either to the rights

of the parties or to the applicable law. Funds deposited pursuant

to Rule 67 are not at the disposal of the judge but, rather, are

held in trust for their rightful owner. See In re Casco Chem. Co.,

335 F.2d 645, 649 (5th Cir. 1964). Their disbursement must be in

accordance with the law.

4
The rule states that such funds are to be "withdrawn in
accordance with the provisions of Title 28, U.S.C., §§ 2041, and
2042; the Act of June 26, 1934, c. 756, § 23, as amended (48 Stat.
1236, 58 Stat. 845), U.S.C., Title 31, § 725v; or any like
statute." See Fed. R. Civ. P. 67. It appears that the relevant
provision of the Act of June 26, 1934, as amended, is currently
codified at 28 U.S.C. § 2043, which superseded 31 U.S.C. § 725v.

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 Here, the Puerto Rico district court flouted this

principle. It cited no authority that allowed it to make a naked

transfer of Rule 67 funds to another court. Doing so was error:

there is no statute, rule, or legal precedent that authorizes a

court to effect a non-consensual transfer of Rule 67 funds to a

different court without a concomitant transfer of the entire case

(or, at least, some cause of action). Because the monetary transfer

here was unaccompanied by a shifting of either the case or a cause

of action within it, that transfer was legally insupportable.

Of course, it can be argued — and St. Paul makes the

argument with vigor — that the Puerto Rico district court likely

recognized the genuineness of St. Paul's claims, knew that those

claims had been asserted in the Western District of Missouri, and

thus saw a transfer of the deposited funds as an efficacious way to

resolve Alstom's dilemma. This argument is bolstered by the court's

observation that "the controversies raised by way of the proposed

intervention can be adequately disposed of" within the four corners

of the litigation pending in the Western District of Missouri.

But such an argument flies in the teeth of the express

provisions of the July 28 order. To read that order as a de facto

grant of St. Paul's motion to intervene and a de facto transfer of

the case to the Western District of Missouri would require turning

a blind eye to the district court's explicit directions. After all,

the court flatly denied St. Paul's motion to intervene and then

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dismissed the case. We cannot disregard express rulings simply as

a matter of guesswork or in an effort to suit interpretive

convenience. See generally In re Thinking Machs. Corp., 67 F.3d

1021, 1026 (1st Cir. 1995) ("Court orders are customarily important

events in the life of a judicial proceeding; they are the primary

means through which courts speak, and they should carry commensurate

weight." (internal citation omitted)); Lefkowitz v. Fair, 816 F.2d

17, 22 (1st Cir. 1987) (enforcing court order that "contained not

the slightest ambiguity" over claim that authoring judge "must" have

meant something different). The most that can be said is that the

court's statements and the naked transfer of the deposited funds,

when juxtaposed against the denial of intervention and the dismissal

of the case, render the July 28 order internally inconsistent.

St. Paul and Alstom also argue, in effect, that the

district court recognized the existence of conflicting claims to the

settlement proceeds; that those claims are now before the court in

the Western District of Missouri; and that, therefore, any error in

the July 28 order should be viewed as harmless. Vacating the order

and remanding the case to the Puerto Rico district court, they say,

would constitute mindless formalism.

We do not agree. While the Puerto Rico district court

did make some suggestive statements, the court appears not to have

weighed the merits of St. Paul's motion for intervention. See,

e.g., Pub. Serv. Co. v. Patch, 136 F.3d 197, 204 (1st Cir. 1998);

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see also Fed. R. Civ. P. 24. By like token, the court appears not

to have made an express finding on the appropriateness of St. Paul

achieving what Reintjes considered to be a back-door prejudgment

attachment.

Nor did the subsequent order of the Missouri court cure

either the error or the inconsistencies in the July 28 order. When

Reintjes moved in that court for release of the funds, its motion

was denied on the principal ground that "it was clearly the

intention of the court in Puerto Rico for [the Missouri court] to

. . . determine what to do with the funds." Given the Missouri

court's understandable deference to the order of the Puerto Rico

district court — an order that we have found to be internally

inconsistent — we cannot plausibly say that the Missouri proceedings

cured the original error.

St. Paul also argues in passing that Reintjes, which

moved in Missouri for release of the funds, thereby accepted the

jurisdiction of that court and waived its right to argue against the

transfer. This argument is far off the mark. The only case St.

Paul cites, In re Durham, 114 F. 750 (D. Md. 1902), is completely

inapposite. And, even assuming that such a waiver might be possible

under some circumstances, Reintjes filed its motion in the context

of the indemnity action already pending in Missouri. Thus,

submitting the motion did not constitute a fresh invocation of or

submission to the authority of a different court.

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 That ends this aspect of the matter. On this tenebrous

record, there is no principled way for us to hold that the Puerto

Rico district court's error was harmless. Consequently, we turn

to the question of relief. In that regard, we must endeavor to find

a remedy suitable to the unusual circumstances of this case.

Normally, we would vacate the challenged order, nullify

any action taken thereunder, and remand to the district court for

further proceedings. See Subsalve, 462 F.3d at 45 (noting that

"[o]rdinarily, an appellate court confronted with an internally

inconsistent order would vacate the offending order and return the

case to the authoring court for clarification"). Here, however,

there is no way to squeeze all of the toothpaste back into the tube.

The Rule 67 funds have been physically transferred to the Western

District of Missouri; that court has assumed control over them; and

we have no authority to order a district court in another circuit

to take a specific action (say, returning the funds). See Matrix

Grp., 378 F.3d at 32. The Puerto Rico district court likewise lacks

any authority to recall the funds. Still, Reintjes's rights must

be protected, and we feel confident that we can rely on the district

courts in the two affected districts to act cooperatively so that

the ends of justice will be served.

In this spirit, we conclude that the most sensible course

is to vacate the July 28 order, remand the case, and direct the

Puerto Rico district court to consider, on the merits, the questions

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of intervention and transfer of the case. Should the court grant

St. Paul's motion to intervene, it may then transfer the entire

action — or what remains of it after dismissing the claims against

Alstom — to the Western District of Missouri under 28 U.S.C. §

1404(a).5 That would validate the original (unauthorized) transfer

of the deposited funds by bringing procedural reality into alignment

with practical reality.

If, however, the Puerto Rico district court determines

that no grounds for intervention exist, it must then advise the

transferee court that the deposited funds were transferred

improvidently and request their return. Requests of this sort have

been made in other circumstances, see, e.g., In re Warrick, 70 F.3d

736, 740-41 (2d Cir. 1995), and we have no reason to doubt that the

transferee court would honor such a request here. The effect, then,

should be to return matters, as closely as is now possible, to the

status quo ante.

5
Section 1404(a) allows a district court to transfer an action
to any district in which the suit "might have been brought."
Obviously, such a transfer is possible here because the suit
originally was brought in the Western District of Missouri and
later transferred to Puerto Rico. While retransfer ordinarily is
to be avoided, see Christianson v. Colt Indus. Oper'g Corp., 486
U.S. 800, 816 (1988), the intervening five years of litigation have
sufficiently altered matters that comity would not be offended by
returning the suit to the original court.

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 IV.

Conclusion

We need go no further. We hold, without serious

question, that the naked transfer of the Rule 67 funds was unlawful.

We also hold that the July 28 order, taken as a whole, is internally

inconsistent: the denial of intervention and the dismissal of the

action simply cannot be squared with the order for deposit and the

sending of the deposited funds to the Western District of Missouri.

Given the peculiar circumstances of this case, our error-correction

function must operate under severe constraints. There is simply no

way that we can replicate exactly the situation that existed on July

27, 2006. We can, however, clear away the confusion created by the

district court's erroneous and internally inconsistent order and

give the parties an opportunity to re-present their arguments. We

take no view as to the relative merit of the choices that will

confront the district court on remand.

The motion of St. Paul Fire & Marine Ins. Co. to

intervene in this appeal is granted. The order appealed from is

vacated and the cause is remanded to the district court with

instructions. All parties shall bear their own costs.

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