DHX, Inc. v. Allianz AGF MAT, Ltd.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

DHX, INC., a California 
corporation,
Plaintiff-Appellant,
No. 03-55426
v.
 D.C. No.
ALLIANZ AGF MAT, LTD., a CV-02-06397-PA
foreign corporation, doing business
in the State of California,
Defendant-Appellee.


DHX, INC., a California 
corporation,
Plaintiff-Appellee, No. 03-55455
v.
 D.C. No.
CV-02-06397-PA
ALLIANZ AGF MAT, LTD., a
foreign corporation, doing business ORDER
in the State of California,
Defendant-Appellant.

Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding

Argued and Submitted
December 6, 2004—Pasadena, California

Filed September 19, 2005

Before: Stephen Reinhardt, Robert R. Beezer, and
Kim McLane Wardlaw, Circuit Judges.

13391
13392 DHX, INC. v. ALLIANZ AGF MAT, LTD.
Order; Concurrence by Judge Beezer

COUNSEL

David E.R. Woolley, Attorney at Law, Los Angeles, Califor-
nia, for the plaintiff-appellant/appellee.

G. Geoffrey Robb, Gibson Robb & Lindh LLP, San Fran-
cisco, California, for the defendant-appellee/appellant.

ORDER

The parties have informed the court that they have settled
the economic issues in this case. Because the parties have
agreed in open court on appeal that there are no objections to
vacating the district court’s October 17, 2002 order denying
the motion to dismiss for improper venue,1 we remand for a
1
At oral argument the Court and Allianz had the following colloquy,
confirming that Allianz did not object to vacating the district court order:
ALLIANZ: I guess in the first instance I would ask that the
court allow for — I would be happy to do more
briefing — but allow for some procedure where
we can get this, this order vacated, and we do not
have to face a collateral estoppel problem in the
future.
...
COURT: I’m just asking you a question practically, you
would like to get rid of this ruling?
ALLIANZ: Yes.
COURT: Cause you have all these policies?
ALLIANZ: Yes.
Later in the argument, the Court confirmed that DHX did not object to
vacating the district court’s order:

COURT: As far as you’re concerned, you have no objection
 DHX, INC. v. ALLIANZ AGF MAT, LTD. 13393
determination by the district court whether that order, the
summary judgment order, and/or the judgment entered on
February 18, 2003, should be vacated. See U.S. Bancorp
Mortgage Co. v. Bonner Mall P’ship, 513 U.S. 18, 29 (1994)
(holding that “mootness by reason of settlement does not jus-
tify vacatur of a judgment under review,” but stating that a
court of appeals may “remand the case with instructions that
the district court consider the [vacatur] request”); see also Am.
Games, Inc. v. Trade Prods. Inc., 142 F.3d 1164, 1169-70
(1998) (holding that when settlement moots a case, the district
court may apply an equitable balancing test in considering
vacatur).

The case is REMANDED for the purpose of considering
vacatur. After remand either or both of the parties may move
the district court for vacatur of the order denying the motion
to dismiss for improper venue, the order denying plaintiff’s
motion for summary judgment and granting defendant’s
motion for summary judgment, and the above referenced
judgment, as permitted under Fed. R. Civ. Pro. 60(b).

BEEZER, Circuit Judge, concurring:

The parties arrived at a complete financial settlement but
agreed to continue to litigate. Without informing us, the par-
ties created a facade: Allianz entered into a complete financial
settlement with DHX, but Allianz also paid DHX attorney’s
fees so that DHX could continue to litigate the case and play

to vacating the district court order?
DHX: The court could — the court is then facing —
COURT: No, no, I know the court could, but I’m asking
you as one of the litigators, you do not object to
that?
DHX: I do not object to that.
13394 DHX, INC. v. ALLIANZ AGF MAT, LTD.
the part of an aggrieved party, even though DHX no longer
had any interest in the matter.

The parties have settled their entire underlying dispute,
depriving us of a live case or controversy which permits adju-
dication. I write separately to emphasize the fundamental
principle that settlements such as the one before us deprive us
of an actual case or controversy. I also emphasize the duty
upon attorneys to affirmatively disclose settlements to the
court and our highly circumscribed authority to vacate district
court judgments after parties have reached a settlement.

I

The underlying dispute arises out of an insurance contract.
The insured, Dependable Hawaiian Express, Inc. (“DHX”),
filed suit, alleging that Allianz AGF MAT Ltd. (“Allianz”)1
breached its insurance contract in bad faith. DHX’s insurance
claim arose from the theft from its premises of two shipping
containers which contained, among other merchandise, 504
cartons of shoes that were owned by the corporation now
known as Foot Locker, Inc. Allianz moved to dismiss the suit
for improper venue, relying on the policy’s forum selection
clause which provides that:

This Policy shall be construed according to and gov-
erned by English law and any dispute between the
Assured and Insurers shall be submitted to the exclu-
sive jurisdiction of the High Court of Justice,
England.

The district court declined to enforce the forum selection
clause as Allianz requested, because doing so, it held, would
“deprive DHX of its constitutional and statutory right to a trial
1
I refer to Allianz AGF MAT Ltd. as “Allianz” throughout this opinion.
I refer to Allianz’s principal, the insurer and primary underwriter of the
insurance policy, Allianz AGF M.A.T., S.A, as “AGF M.A.T., S.A.”
 DHX, INC. v. ALLIANZ AGF MAT, LTD. 13395
by jury.” DHX, Inc. v. Allianz AGF MAT Ltd., 2002 WL
31421952, at *1, 2002 A.M.C. 2463 (C.D. Cal. Oct. 17, 2002)
(“forum clause order”). Ultimately, the district court entered
judgment in favor of Allianz, concluding that Allianz was not
the insurer and was an improper party to the suit.2

DHX appealed the summary judgment order. See Ninth Cir.
Case No. 03-55426. Allianz cross-appealed the district court’s
forum clause order, in which the district court declined to
enforce the forum selection clause and denied Allianz’s
motion to dismiss. See Ninth Cir. Case No. 03-55455.

After the parties filed and briefed these appeals, but before
oral argument, Allianz and DHX informed us that “DHX and
AGF M.A.T., S.A.” have “entered into a settlement of certain
proceedings before the English courts.” Stipulation Limiting
Issues For Appeal (“Stipulation”).3 The stipulation, signed
and submitted by the attorneys for each party, asserts that
“AGF M.A.T., S.A. is the principal underwriter of the insur-
ance policy that is the subject of these appeals but is not a
party to these appeals.” Id. Despite the settlement, the parties
asked us to adjudicate the dispute “between DHX, Inc. and
Allianz” that arises from Allianz’s appeal of the district
court’s forum clause order. Id. (“The remaining disputed issue
is the subject insurance policy’s forum selection clause in
favor of English courts, which the District Court found unen-
forceable for lack of an express waiver of the right to jury
trial. A dispute as to the enforceability of that clause and its
collateral estoppel effect remains.”). In the stipulation, signed
2
The district court held that AGF M.A.T., S.A. was the actual insurer.
DHX alleged that, through a series of name changes and by employing a
raft of corporate entities, Allianz masked the identity of the true insurer.
Allianz alleged that DHX knew full well that AGF M.A.T., S.A. was the
true insurer, but that DHX insisted on suing Allianz as a litigation strategy
to force it to post a sizable bond pursuant to California law as a non-
admitted foreign insurer. These and related issues were briefed in Appeal
No. 03-55426, which, as I explain, the parties have settled.
3
I have reproduced the Stipulation in its entirety as Appendix A.
13396 DHX, INC. v. ALLIANZ AGF MAT, LTD.
by representatives for Allianz and DHX, the parties agreed
that this was “[t]he only remaining issue[ ].” DHX thus
agreed to abandon its entire appeal of the district court’s judg-
ment in favor of Allianz.

At oral argument, we inquired of counsel whether we were
presented with a live case or controversy which we could
properly decide:

THE COURT: The case is over. All you’re now liti-
gating, if you are, is this question about whether that
clause in the contract is valid or not. And I wonder
whether that’s of general interest to you that you
want to fight to preserve or whether you no longer
really have any interest in it.

DHX: I have no interest in it any longer. But the bar
has. As [Allianz’s attorney] reports, he’s been called
by other lawyers. I’ve been called by other lawyers.
It’s the problem of putting the genie back in the bot-
tle. The genie is out. It is a published opinion.

...

THE COURT: Is this something that you really want
to pursue, whether under the Allianz whatever it is
contract, where the cases must be tried. Does your
client have an interest in pursuing that?

DHX: My client has very little interest.

THE COURT: That’s what I figured.

DHX: The interest is Allianz’s. . . .

Allianz’s attorney revealed at oral argument that it issues
numerous policies that provides for claims litigation exclu-
sively in England and counsel pressed for a decision on the
 DHX, INC. v. ALLIANZ AGF MAT, LTD. 13397
merits. The attorney for Allianz asked us, if we declined to
reach the merits, to simply vacate the district court’s decision,
a request to which DHX did not object.

The wording of the stipulation made it appear that the only
parties to the settlement “of certain proceedings” were DHX
and AGF M.A.T., S.A. If, as it seemed, Allianz were not a
party to the settlement, it would at least arguably be permissi-
ble, on the surface, for us to reach the forum clause issue on
the merits or simply vacate the district court’s opinion.

But in light of our “constitutional obligation to police juris-
dictional matters assiduously,” Gator.com Corp. v. L.L. Bean,
Inc., 398 F.3d 1125, 1128 (9th Cir. 2005) (en banc), after con-
siderable deliberation, we ordered the parties to turn over any
relevant settlement agreements so that we could assess
whether the case is moot.4 See id. (requesting a copy of the
parties’ settlement agreement to determine whether a settle-
ment mooted the case.).

II

The parties’ detailed and highly unusual settlement agree-
ment reveals an embarrassingly ill-conceived attempt to pre-
serve a live controversy despite taking all economic issues off
the table. The parties’ agreement, and the corresponding effort
to “craft” around the mootness bar, is nothing less than a fail-
ure. The settlement, which is reproduced in its entirety as
Appendix B, leads to the inescapable conclusion that the case
is moot.
4
Our order dated July 27, 2005 instructed the parties to file “copies of
the settlement agreement between DHX and AGF M.A.T., S.A. and of any
agreements between DHX and ALLIANZ AGF MAT, LTD. that were
entered into prior to DHX’s dropping of appeal No. 03-55426 that relate
to such action by DHX.”
13398 DHX, INC. v. ALLIANZ AGF MAT, LTD.
A

The parties submitted copies of the settlement agreement,
which was signed by representatives of DHX, Allianz, and
AGF M.A.T., S.A., as well as the two attorneys appearing
before us. Under no circumstances can it be fairly agreed that
Allianz was not a party to the settlement.

The principal monetary component of the settlement is the
agreement of Allianz’s principal, AGF M.A.T., S.A., to pay
DHX $219,000.5 Settlement at ¶ 1. The settlement provides
for the dismissal of related proceedings in England between
AGF M.A.T., S.A. and DHX. Id. at ¶ 2. DHX agreed to
release both Allianz and AGF M.A.T., S.A. “and any other
company obligated in any way under the policy of insurance”
from all claims deriving from the theft of the shipping con-
tainers. Id. at ¶ 3. DHX also released these entities “concern-
ing the matters relating to or arising out of” this lawsuit. Id.
DHX “agree[d] to file any dismissals with prejudice of [this
lawsuit] that may become necessary to conclude the action
consistent with this agreement.” Id.

With the matter settled, typically the parties would simply
ask us to dismiss the case in light of the parties’ settlement.
But DHX and Allianz had other intentions.

Despite the settlement, DHX and Allianz agreed to con-
tinue to litigate the forum clause order. The settlement agree-
ment commanded that “DHX will oppose the venue appeal on
such terms and issues as are most favorable to pursuing a rul-
ing on the merits from the Ninth Circuit.” Id. All the while,
DHX had already received a full monetary settlement that
could not be increased, even if DHX prevailed in its argu-
ments relating to the forum clause.
5
In its amended complaint, the compensatory damages that DHX sought
were $185,371.37 in relation to the stolen shoes and $58,023.70 with
respect to other claims. But at the time of this appeal, DHX focused only
on the claim for $185,371.37.
 DHX, INC. v. ALLIANZ AGF MAT, LTD. 13399
To provide some incentive for DHX to continue to litigate,
Allianz agreed to pay DHX’s attorney’s fees. AGF M.A.T.,
S.A. “agreed to reimburse reasonable attorneys fees and costs
of DHX in doing any substantial work related to the matters
on appeal and proceedings before the District Court . . . .” Id.
The agreement provided for DHX to be paid at the rate of
$300 for each hour its attorney dedicated to “substantial work
actually done and submitted by detailed invoice . . . related to
pursuing resolution of the remaining venue issue before the
Ninth Circuit and the district court.” Id. These provisions
included Allianz’s specific agreement to reimburse DHX for
up to ten hours of attorney’s fees for preparation and atten-
dance at the oral argument on appeal. Id. Allianz even agreed
to pay for DHX’s attorney’s travel expenses to Pasadena, Cal-
ifornia, where we heard oral argument.6

Creating the settlement in the manner that they did, the par-
ties were attempting to provide for continued litigation on the
forum clause issue, while eliminating the economic risks of
litigation between the parties. As the attorney for Allianz
revealed at oral argument, Allianz and its principal have
issued numerous policies that provide for an exclusive litiga-
tion forum in England. Distressed by the potential persuasive
impact of the district court’s holding that the forum clause is
not binding, and seeking to establish Circuit precedent to the
contrary, Allianz sought to preserve the appeal, despite set-
tling this particular case. At oral argument, before we knew
the details and scope of the settlement, the attorney for DHX
stated that the parties settled the case but tried to “craft” it in
such a way as to permit us to reach the merits of the district
court’s forum clause order:

DHX: [T]he parties when they settled this case tried
to settle it in such a way that the court would have
6
Allianz refused to place DHX’s counsel in first class, however, strictly
limiting reimbursement for an “economy air fare [ ] not to exceed $300
round trip.”
13400 DHX, INC. v. ALLIANZ AGF MAT, LTD.
a continuing case or controversy, because Allianz
itself very much wished for an opinion as to the
validity of its insurance clause in this case. We rec-
ognize the mootness problem. We tried very hard,
however, to craft a settlement that would work in
such a way that the court would have the particular
issue in front of it, whether or not you could inadver-
tently waive your right to trial by jury in an insur-
ance contract. Now, if you wish to declare it moot,
you can. But that was exactly why we tried to craft
the settlement so that there was not actually this
[inaudible] of the case-in-chief.

What DHX and Allianz attempted in the agreement they
“crafted” was to settle their economic dispute, but to some-
how keep the forum clause issue alive.

That the parties went to such lengths to try to keep the
forum clause issue alive ironically confirms the artificiality of
the arrangement. The only interest of Allianz was the viability
of the forum clause in some future case. All the while, Allianz
was paying DHX to play the part of the opposing side, when
DHX no longer had any interest in the outcome of the case,
save from receiving a continuing stream of attorney’s fees as
it dutifully litigated in conformity with the instructions and
needs of Allianz.

What the parties lacked in properly understanding the nec-
essary implications of their settlement agreement was surely
balanced by their unrelenting determination. Even after
revealing the terms of the settlement when we ordered them
to, the parties continued to assert that we should reach the
merits. Joint Submission of 8/2/2005 (arguing that “Allianz
has preserved its appeal on the enforceability of the insurance
policy’s forum selection clause”).

As I turn to explain, no matter how cleverly such a settle-
ment is “crafted,” we cannot entertain it, because of the lack
of a live controversy between the parties.
 DHX, INC. v. ALLIANZ AGF MAT, LTD. 13401
B

The constitutional authority of the United States Courts is
carefully circumscribed to actual “cases” and “controversies.”
U.S. Const. art. III, § 2. “[A]n actual controversy must be
extant at all stages of review, not merely at the time the com-
plaint is filed.” Steffel v. Thompson, 415 U.S. 452, 459 n. 10
(1974). It has long been settled that we have no authority “to
give opinions upon moot questions or abstract propositions, or
to declare principles or rules of law which cannot affect the
matter in issue in the case before [us].” Mills v. Green, 159
U.S. 651, 653 (1895). The federal courts do not, and cannot,
render advisory opinions. United Pub. Workers v. Mitchell,
330 U.S. 75, 89 (1947). A generalized disagreement, no mat-
ter how acrimonious, is insufficient to fulfill the requirements
of Article III. Diamond v. Charles, 476 U.S. 54, 62 (1986).
Where parties enter into a settlement that resolves all out-
standing disputes, we are unable to grant effective relief and
the case becomes moot. See, e.g., United States v. Int’l Bhd.
of Teamsters, 172 F.3d 217, 221 (2d. Cir. 1999); see also
Gator.com Corp. v. L.L. Bean, Inc., 398 F.3d 1125 (9th Cir.
2005) (en banc) (holding that a settlement that paid $10,000
to the winner deprived us of a live controversy, thus mooting
the appeal).

DHX has been bought by Allianz, yet both parties take the
position that we have a live case or controversy. Far from
being adverse parties, Allianz has entered into a side agree-
ment with DHX. In addition to the $219,000 that Allianz has
paid DHX, the side agreement provides DHX with a continu-
ing stream of attorney’s fees in return for maintaining a liti-
gating position. In fact, if DHX were to decide not to litigate
the forum clause issue any longer, DHX would be in a breach
of the settlement agreement, which commands that “DHX
will oppose the venue appeal on such terms and issues as are
most favorable to pursuing a ruling on the merits from the
Ninth Circuit.” Settlement at ¶ 3. We are deprived of an
adversarial setting, for DHX and Allianz have a common con-
13402 DHX, INC. v. ALLIANZ AGF MAT, LTD.
cern in the settlement. Where one side is being paid by the
other to take a litigating position, and would be found in
breach of an agreement with the other party if it decided to no
longer litigate, we hardly have the “concrete adverseness
which sharpens the presentation of issues,” which is integral
to the Article III case or controversy requirement, Baker v.
Carr, 369 U.S. 186, 204 (1962).

We do not reach the merits of the forum selection clause
issue, and the opinion of the court properly dismisses both
appeals as moot. Any opinion with respect to the forum selec-
tion clause issue at this juncture would prove to be an imper-
missible advisory opinion.

C

Attorneys are under an obligation to provide prompt, com-
plete, and accurate information to the court when parties reach
a settlement. See, e.g., Arizonans for Official English v. Ari-
zona, 520 U.S. 43, 68 n.23 (1997) (“It is the duty of counsel
to bring to the federal tribunal’s attention, without delay, facts
that may raise a question of mootness. Nor is a change in cir-
cumstances bearing on the vitality of a case a matter opposing
counsel may withhold from a federal court based on counsels’
agreement that the case should proceed to judgment and not
be treated as moot.”) (citations and internal quotations omit-
ted). The failure to promptly disclose such facts is sanction-
able conduct. Cf. Gould v. Bowyer, 11 F.3d 82, 84 (7th Cir.
1993) (“[I]n order to spare busy courts unnecessary work, par-
ties must advise a court when settlement is imminent. . . . The
duty is implicit in the characterization of lawyers as officers
of the court, and a breach of it therefore opens a lawyer to
sanctions.”). We are engaged to decide live cases or contro-
versies as presented by the attorneys of record, and it is not
for a court to smoke out who settled with whom. If an appeal
is pending and a settlement emerges, it is the duty of counsel
to disclose the essence of the settlement to the court.
 DHX, INC. v. ALLIANZ AGF MAT, LTD. 13403
The parties’ disclosure of the settlement to us was inade-
quate. It appears as if the attorneys of record submitted the
vaguest possible notice of the settlement in an attempt to
relieve themselves from sanctions, but to avoid revealing
what was really transpiring, so as not to surely doom the
chances of our reaching the merits. We were informed only
of “a settlement of certain proceedings before the English
courts involving DHX and AGF M.A.T., S.A.” Stipulation at
App. A. Further, the stipulation made no mention of Allianz’s
participation and left the highly misleading (and false)
impression that Allianz was not a party to the settlement. Id.
We were also left uninformed about the complete financial
settlement and of the parties’ scheme to continue to engage in
artificial litigation with Allianz’s paying DHX’s attorney’s
fees.

III

At oral argument counsel for Allianz asked us, if we
declined to reach the merits, to consider vacating the district
court’s opinion. The attorney for DHX stated that it would not
object to our doing so.7 Because the case is moot by settle-
ment, we are not permitted to vacate the district court’s opin-
ion, no matter how desirable to the parties.

In U.S. Bancorp Mortgage Co. v. Bonner Mall P’ship, 513
U.S. 18 (1994), the Supreme Court considers whether a losing
party who subsequently settles a case may seek vacatur of a
court of appeals opinion. The Supreme Court answers in the
negative, holding that “mootness by reason of settlement does
not justify vacatur of a judgment under review.” Id. at 29.
When the parties settle a case on appeal, “the losing party has
voluntarily forfeited his legal remedy by the ordinary process
7
DHX’s accession to Allianz’s request for vacatur is not surprising,
because the settlement requires DHX to “give any consent or stipulation
reasonably necessary to bring about” vacatur of the district court’s opin-
ion. Settlement at ¶ 3.
13404 DHX, INC. v. ALLIANZ AGF MAT, LTD.
of appeal or certiorari, thereby surrendering his claim to the
equitable remedy of vacatur.” Id. at 25. The Court observes
that judicial precedents are valuable to society as a whole and
are not mere property of private litigants. Id. at 26-27; Daniel
Purcell, Comment, The Public Right to Precedent: A Theory
and Rejection of Vacatur, 85 Cal. L. Rev. 867 (1997); see
also Jill E. Fisch, Rewriting History: The Propriety of Eradi-
cating Prior Decisional Law Through Settlement and Vaca-
tur, 76 Cornell L. Rev. 589 (1991). The doctrine of Bonner
Mall equally applies to “motions at the court-of-appeals level
for vacatur of district-court judgments.” 513 U.S. at 28.

In other words, a party aggrieved by a legal precedent may
not “put[ ] the genie back in the bottle” by settling with the
opposing party and jointly asking a court to vacate the deci-
sion. In any event, the impact of vacatur is limited. It is gener-
ally the case that a vacated opinion will have no preclusive
effects against the parties in subsequent litigation. See In re
Burrell, 415 F.3d 994, 999-1000 (9th Cir. 2005). But at mini-
mum, a vacated opinion still carries informational and per-
haps even persuasive or precedential value. See U.S. v.
Joelson, 7 F.3d 174, 178 n.1 (9th Cir. 1993) (stating that a
certain vacated Court of Appeals opinion “has no precedential
effect” but citing the vacated opinion for its informational and
persuasive value); Gould v. Bowyer, 11 F.3d 82, 84 (7th Cir.
1993) (noting that a vacated district court opinion carries
informational value “even if the reviewing court intoned in its
most solemn voice that the district court’s decision would
have no precedential effect”); County of Los Angeles v. Davis,
440 U.S. 625, 646 n.10 (1979) (Powell, J., dissenting) (assert-
ing that the opinion of the court of appeals, though vacated,
“will continue to have precedential weight and, until contrary
authority is decided, [is] likely to be viewed as persuasive
authority if not the governing law of the [ ] Circuit”).

We have no authority to vacate the district court’s judg-
ment. When settling a suit, the Court admonishes, a litigant
voluntarily forfeits his legal remedy of appeal, and so “by his
 DHX, INC. v. ALLIANZ AGF MAT, LTD. 13405
own choice,” “surrender[s] his claim to the equitable remedy
of vacatur.” Bonner Mall, 513 U.S. at 25. If Allianz wished
to avoid any possible persuasive or preclusive effects of the
district court’s order, it could have rejected the notion of set-
tlement and seen this appeal to completion. By settling the
underlying dispute with DHX, however, Allianz abandoned
its right to review. In light of the parties’ settlement, “[t]he
denial of vacatur is merely one application of the principle
that ‘[a] suitor’s conduct in relation to the matter at hand may
disentitle him to the relief he seeks.’ ” Bonner Mall, 513 U.S.
at 25 (quoting Sanders v. United States, 373 U.S. 1, 17
(1963)).

The Supreme Court allows that “exceptional circumstances
may conceivably counsel in favor” of a court of appeals’
granting vacatur where mootness results by settlement. 513
U.S. at 29 (emphasis added). There are no exceptional cir-
cumstances where, as here, the parties simply have settled
their dispute and agree to seek vacatur. Id. Just as a court is
not permitted to rule on the merits of a case mooted by a set-
tlement, Bonner Mall teaches that once a case is settled, a
court of appeals is powerless to vacate a district court’s find-
ings of fact or conclusions of law that arose from the case,
even if a settlement is “crafted” in such a way as to provide
for it. 513 U.S. at 29.

Although there is no right to vacatur in such circumstances,
and a court of appeals is powerless to grant it, Bonner Mall
does allow a district court to consider, in its discretion, a
request for vacatur of one of its judgments pursuant to Federal
Rule of Civil Procedure 60(b). 513 U.S. at 29; Am. Games,
Inc. v. Trade Prods. Inc., 142 F.3d 1164, 1168 (9th Cir.
1998). Remanding the case to the district court for it to con-
sider vacating its own judgment pursuant to the parties’
request is appropriate.
13406 DHX, INC. v. ALLIANZ AGF MAT, LTD.
APPENDIX TO THE CONCURRING OPINION

APPENDIX A: “STIPULATION RE LIMITING ISSUES
FOR APPEAL”

Filed March 30, 2004

The undersigned DHX, INC. has entered into a settlement
of certain proceedings before the English courts involving
DHX and AGF M.A.T., S.A. That settlement impacts the
issues presented on these consolidated appeals. AGF M.A.T.,
S.A. is the principal underwriter of the insurance policy that
is the subject of these appeals but is not a party to these
appeals. The parties to these appeals, DHX, INC. and ALLI-
ANZ AGF MAT LTD. hereby stipulate as follows:

1. The motion of DHX, INC. to strike and remand the
appeals is hereby withdrawn.

2. The only remaining issues to be decided between DHX,
INC. and ALLIANZ AGF MAT LTD. herein regard the
issues presented in Appeal No. 03[-]55455 filed by appellant
ALLIANZ AGF MAT LTD. regarding the October 18, 2002
District Court Order denying the motion to dismiss of ALLI-
ANZ AGF MAT LTD. The remaining disputed issue is the
subject insurance policy’s forum selection clause in favor of
English courts, which the District Court found unenforceable
for lack of an express waiver of the right to jury trial. A dis-
pute as to the enforceability of that clause and its collateral
estoppel effect remains. The undersigned parties consent to
the Court of Appeal reviewing only those issues in these con-
solidated appeals.

Respectfully submitted,
 DHX, INC. v. ALLIANZ AGF MAT, LTD. 13407

Dated: March 18, 2004 GIBSON ROBB & LINDH
LLP
BY: _____/s/__________
G. GEOFFREY ROBB
Attorneys for Defendant
ALLIANZ AGF MAT LTD.
Dated March 15, 2004 BY: _____/s/__________
DAVID E.R. WOOLLEY
Attorneys for Plaintiff
DHX, INC.
13408 DHX, INC. v. ALLIANZ AGF MAT, LTD.
APPENDIX B: “SETTLEMENT AGREEMENT AND
RELEASE”

The parties hereto have agreed to a settlement of the legal
proceedings between them on the following terms:

1. AGF-M.A.T. S.A. agrees to pay DHX, Inc. (aka Depend-
able Hawaiian Express, Inc.) (hereinafter “DHX”) the total
sum of U.S. $219,000.00 (Two Hundred and Nineteen Thou-
sand U.S. dollars) by wire transfer to DHX’s account on or
before March 16, 2004 or upon receipt of the faxed signature
of DHX hereto if after that date.

2. AGF-M.A.T. S.A and DHX are currently engaged in
English proceedings titled AGF M.A.T., S.A. v. Dependable
Hawaiian Express, Inc., 2003 Folio No. 178 which is now
pending in the High Court of Justice Queens Bench Division
Commercial Court. Regarding the English Proceedings, the
parties hereto agree to mutually dismiss the matter entitled
AGF-M.A.T., S.A. v. Dependable Hawaiian Express, Inc.,
2003 Folio No. 178, now pending in the High Court of Justice
Queens Bench Division Commercial Court. The parties agree
to lodge a consent order in the Commercial Court simply
recording that terms of the settlement have been reached, it is
agreed the proceedings will be dismissed, and that each party
will bear its own costs in the proceedings. The order will also
provide for the trial date to be vacated.

3. DHX and ALLIANZ AGF MAT LTD (ALLIANZ) are
currently engaged in California proceedings entitled DHX,
Inc. v. Allianz AGF MAT Ltd.; these proceedings are currently
on file before the Ninth Circuit Court of Appeals but may yet
be remanded to the Central District of California. There are
three matters before the Court of Appeal:

a) the appeal of DHX from the final order, appeal
03-55426 (“the final order appeal”);
 DHX, INC. v. ALLIANZ AGF MAT, LTD. 13409
b) the appeal of ALLIANZ from the venue ruling,
appeal 03-55455 (“the venue appeal”); and

c) DHX’s motion to strike and remand the appeals
regarding the posting of a bond.

Regarding the California proceedings, DHX and ALLIANZ
agree that the only remaining issues in dispute concern the
appeal of ALLIANZ from the venue ruling. DHX and ALLI-
ANZ will join in requesting the Ninth Circuit to limit the con-
solidated appeals to those issues and dispose of the remaining
issue as follows:

a) DHX will dismiss the final order appeal (03-
55426) with prejudice upon the written request
of Allianz.

b) DHX will oppose the venue appeal on such
terms and issues as are most favorable to pursu-
ing a ruling on the merits from the Ninth Cir-
cuit. If for any reason that appeal is dismissed or
the case is remanded without determination of
the merits of the appeal, the parties agree to sub-
mit a mutual request to the District Court to
vacate said order. ALLIANZ agrees to initiate
and substantially prepare all papers necessary to
such efforts, and DHX agrees to join in any
motion(s) filed by ALLIANZ before the Ninth
Circuit and the District Court and give any con-
sent or stipulation reasonably necessary to bring
about that result.

c) DHX will withdraw and dismiss the motion to
strike ALLIANZ’s pleadings forthwith.

AGF-M.A.T. S.A. agrees to reimburse reasonable attorneys
fees and costs of DHX in doing any substantial work related
to the matters on appeal and proceedings before the District
13410 DHX, INC. v. ALLIANZ AGF MAT, LTD.
Court as follows: Mr. Woolley’s services may be charged at
$300/ hour only for substantial work actually done and sub-
mitted by detailed invoice and only following the execution
of this agreement and related to pursuing resolution of the
remaining venue issue before the Ninth Circuit and the district
court. Substantial work does not include the review and analy-
sis and execution of papers drafted by counsel for ALLIANZ.
Regarding the oral argument on appeal, Mr. Woolley will
charge not more than 10 hours of time for preparation and
attendance and will be reimbursed only for economy air fare
(not to exceed $300 round trip) and necessary parking and
taxi charges only. Any other work that Mr. Woolley submits
for reimbursement will be paid only if ALLIANZ has given
advance written consent and under an agreed budget.

DHX hereby releases Allianz AGF-MAT, Ltd., AGF-
M.AT. S.A. and any other company obligated in any way
under the policy of insurance No. PM6443/01 and each of
their respective predecessors, successors, employees, attor-
neys, principals and agents of any and all claims, whether in
contract or tort, in any way arising out of or related to any and
all losses or damages concerning the theft of two containers
occurring on or about September 4, 2001, concerning any
insurance claim arising therefrom and/or concerning the mat-
ters related to or arising out of the lawsuit filed by DHX in
the Superior Court of California in and for the County of Los
Angeles that was removed to the Central District Court of
California, Case No. 02-6397 PA JTL. DHX agrees to file any
dismissals with prejudice of either action that may become
necessary to conclude the action consistent with this agree-
ment.

The Parties agree that this Settlement Agreement and
Release resolves disputed claims and that this release shall not
be deemed an admission of liability by the parties, which lia-
bility, as to themselves, is expressly denied. This release
memorializes a settlement and compromise of disputed claims
made in order to avoid the costs and inconvenience of further
 DHX, INC. v. ALLIANZ AGF MAT, LTD. 13411
litigation, and neither the fact of release nor its contents shall
be construed as, or be admissible evidence of, an admission
of any fact or liability by parties in any action or proceeding.

The Parties intend that the releases herein contained shall
be effective as a bar to each and every claim, demand or cause
of action hereby released, whether known or unknown. The
Parties acknowledge and understand that there is a risk that,
subsequent to the execution of this release, they may have or
discover claims against the other which are unknown or unan-
ticipated by them. Nevertheless, the Parties hereby expressly
waive all rights they may have with respect to such unknown
claims or damages.

DHX further represents and warrants that it is the sole
owner of all of the respective claims hereby released by it and
agrees to hold harmless and indemnify all parties released
herein from and against all liability, damage, costs and
expense, including attorneys fees, as a result of any claim
asserted or brought, whether litigation is commenced or not,
by any person or entity who claims an interest in the released
claims.

The Parties acknowledge and agree that any rule of inter-
pretation, to the effect that ambiguities are to be resolved
against the drafting party, shall not apply to the interpretation
of this Agreement.

This Agreement shall be construed according to and gov-
erned by English law. Further, in any action to enforce the
terms of this Agreement, the prevailing party or parties shall
be entitled to recover reasonable attorneys’ fees, experts’ fees
and costs in connection with such action.

This Agreement constitutes the entire agreement between
Parties pertaining to the subject matter hereof, and may be
modified only by a written agreement signed by all Parties
13412 DHX, INC. v. ALLIANZ AGF MAT, LTD.
hereto. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original.

The signatures below further represent that they have
authority to execute this release on behalf of the respective
parties.

Date: 3/15/04 DHX, Inc.
BY: _____/s/__________
Its: President

Date: 16/3/04 AGF M.A.T., S.A.
By: _____/s/__________
P. Warren / Allianz Marine &
Aviation
Its: Authorized Agent

Date: 16/3/04 Allianz AGF MAT, Ltd.
By: _____/s/__________
P. Warren / Allianz Marine &
Aviation
Its: Authorized Agent

APPROVED:

Date: March 15, 2004 _____/s/______________
DAVID E.R. WOOLLEY

Date: __________ GIBSON ROBB & LINDH LLP
____________________
G. GEOFFREY ROBB

Counsel

David E.R. Woolley, Los Angeles, California, for plaintiff-
appellant-cross-appellee.
 DHX, INC. v. ALLIANZ AGF MAT, LTD. 13413
G. Geoffrey Robb, Gibson Robb & Lindh LLP, San Fran-
cisco, California, for defendant-appellee-cross-appellant.
 PRINTED FOR
ADMINISTRATIVE OFFICE—U.S. COURTS
BY THOMSON/WEST—SAN FRANCISCO

The summary, which does not constitute a part of the opinion of the court, is copyrighted
© 2005 Thomson/West.