Smith v. Texaco, Inc.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
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m 00-40337
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MATTHEWS SMITH; JOHN COMEAUX; JOHN LUMPKINS;
KENNETH FORD; AND DARLENE GREENE; ET AL.,

Plaintiffs-Appellees,

VERSUS

TEXACO, INC.; ET AL.,

Defendants,

ARAMCO SERVICES COMPANY; SAUDI REFINING, INC.;
SHELL OIL COMPANY; STAR ENTERPRISE; TEXACO, INC.;
TEXACO REFINING AND MARKETING INCORPORATED;
AND TEXACO REFINING AND MARKETING EAST, INC.,

Defendants-Appellants.

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Appeals from the United States District Court
for the Eastern District of Texas
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February 1, 2002
ON MOTION TO DISMISS APPEAL Before REAVLEY, SMITH, and DeMOSS,
AND TO DISMISS PETITION FOR Circuit Judges.
REHEARING EN BANC
PER CURIAM:
(opinion 263 F.3d 394 (5th Cir.
August 22, 2001)) The defendants filed, on January 3, 2002,
an unopposed motion “to dismiss all pro-
ceedings before this Honorable Court,” and contemporaneously with this order, the judge
specifically to dismiss the petition for rehearing or judges who have held the mandate are
en banc. The motion presumably is filed releasing that hold.
pursuant to FED. R. APP. P. 42 and 5TH CIR.
R. 42. The motion states, in its text and as IT IS ORDERED that the opinion of this
reflected in an attached judgment of the dis- court, issued as the judgment on August 22,
trict court entered on November 19, 2001, that 2001, is WITHDRAWN. See Smith v. Tex-
the parties have settled all claims and contro- aco, Inc., 263 F.3d 394 (5th Cir. 2001). Be-
versies and that the district court has approved cause the district court has dismissed, with
the settlement and has dismissed all claims prejudice, all claims in the underlying action,
with prejudice. The funds agreed to in settle- that court’s order of March 7, 2000, certifying
ment have been paid. No party requested va- the class, which is the subject of this appeal
catur of the panel opinion as a condition of the under FED. R. APP. P. 23(f), is hereby
settlement. See generally U.S. Bancorp Mort- VACATED. See Smith v. Texaco, Inc., 88 F.
gage Co. v. Bonner Mall Partnership, 513 Supp. 2d 663 (E.D. Tex. 2000). We leave in
U.S. 18 (1994). place the November 19, 2001, final judgment
of the district court, approving the settlement
As the motion to dismiss states, the set- and its settlement class and dismissing all
tlement became final on December 19, 2001. claims with prejudice.
Pending at that time was plaintiffs’ petition for
rehearing en banc, filed on October 3, 2001. IT IS FURTHER ORDERED that the un-
As reflected in the public docket sheet, the opposed motion to dismiss all proceedings in
mandate of this court had been held by one or this court , treated as a motion to dismiss the
more judges, although when the motion to appeal and to dismiss the petition for rehearing
dismiss was filed, no judge had requested that en banc, is GRANTED.
the court be polled on rehearing en banc. On
November 16, 2001, the court had requested The mandate shall issue forthwith.
defendants to file a response to the en banc
petition.

The motion to dismiss thus was filed under
somewhat unusual circumstances. No provi-
sion of the Federal Rules of Appellate Pro-
cedure or the local rules of this court speci-
fically addresses the instant situation. We con-
clude, however, that 5TH CIR. R. 42.1 does not
authorize the clerk to enter an order of dis-
missal while the mandate has been held, be-
cause that rule states in part that the clerk shall
enter the order of dismissal “as the mandate.”
We need not address whether the panel may
enter an order of dismissal on an unopposed
motion while the mandate is held, because,

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