Rusco Steel Company v. Atkinson-Kiewit, J
U.S. Court of Appeals for the First Circuit
Rusco Steel Company v. Atkinson-Kiewit, J
Opinion
USCA1 Opinion
[NOT FOR PUBLICATION]
United States Court of Appeals
For the First Circuit
____________________
No. 95-2290
RUSCO STEEL COMPANY,
Plaintiff - Appellee,
v.
ATKINSON-KIEWIT, J/V, ETC., ET AL.,
Defendants - Appellants.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge] __________________________
____________________
Before
Torruella, Chief Judge, ___________
Bownes, Senior Circuit Judge, ____________________
and Stahl, Circuit Judge. _____________
_____________________
John D. Deacon, Jr. for appellants. ___________________
Holly R. Rao, with whom Olenn & Penza was on brief for _____________ _______________
appellee.
____________________
October 25, 1996
____________________
Per Curiam. This case comes before us on appeal from Per Curiam. __________
the district court's grant of partial summary judgment to
appellees Rusco Steel Company ("Rusco"). At all times relevant
to this case, Rusco was a subcontractor to Atkinson-Kiewit Joint
Venture ("Atkinson") on the Jameson Bridge project in Rhode
Island. Plaintiff Richard Cosimini worked for Rusco on the
project. He brought the original action against Atkinson after
he was injured during the course of his employment with Rusco on
the Jamestown Bridge project. Atkinson then filed a third party
complaint against Rusco, claiming, in part, that Rusco failed to
procure certain insurance as required by the contract. After
determining that Rusco had in fact procured the insurance,
Atkinson voluntarily dismissed the related counts without
prejudice. Thereafter, Rusco and Atkinson brought cross motions
for summary judgment on another issue related to the scope of the
insurance coverage. In an amended decision, the district court
granted Rusco partial summary judgment on the insurance
procurement issue that had previously been dismissed. This
appeal ensued.
After Atkinson filed its brief in this appeal, the
parties settled their dispute through this court's Civil Appeals
Management Program (CAMP). Under the rules of this court
governing CAMP, parties may be directed to consider the
possibility of settlement. See First Circuit Rule 47.5. Under ___
the terms of the settlement, all pending appeals and issues were
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dismissed, except for the grant of partial summary judgment to
Rusco, the issue from which Atkinson now appeals.
The settlement of the underlying controversy in this
case renders the issue on appeal moot. United States Parole _____________________
Comm'n v. Geraghty, 445 U.S. 388, 395-97 (1980). "It is well ______ ________
settled that a case is moot 'when the issues presented are no
longer "live" or the parties lack a legally cognizable interest
in the outcome, . . . or alternatively, when the 'party invoking
federal court jurisdiction' no longer has 'a personal stake in
the outcome of the controversy.'" Boston & Maine Corp. v. ______________________
Brotherhood of Maintenance of Way Employees, 94 F.3d 15, 20 (1st ____________________________________________
Cir. 1996) (citations omitted). Once a case or controversy is
moot, a federal court no longer retains jurisdiction to
adjudicate the merits of the case. U.S. Const. art. III, 2 et __
seq.; see also U.S. Bancorp Mortgage Co. v. Bonner Mall ____ __________ ____________________________ ____________
Partnership, 115 S. Ct. 386, 390 (1994). ___________
"As a general rule, when a case becomes moot on appeal
--or an aspect thereof -- we vacate the district court's decision
and remand with a direction to dismiss."1 Newspaper Guild of ___________________
Salem v. Ottaway Newspapers, Inc., 79 F.3d 1273, 1285 n.15 (1st _____ _________________________
Cir. 1996); see also United States v. Munsingwear, Inc., 340 U.S. ________ _____________ _________________
36, 40 (1950) ("The established practice of the Court in dealing
with a civil case from a court in the federal system which has
become moot while on its way here or pending our decision on the
____________________
1 The party seeking vacatur bears the burden of showing that it
is entitled to such equitable relief. U.S. Bancorp, 115 S. Ct. ____________
at 392.
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merits is to reverse or vacate the judgment below and remand with
a direction to dismiss."). We vacate a lower court's judgment in
order to "clear[] the path for future relitigation of the issues
between the parties and eliminate[] a judgment, review of which
was prevented through happenstance." Munsingwear, 340 U.S. at ___________
40.
We may vacate the district court's judgment under the
Munsingwear rule only when mootness arises through ___________
"happenstance," Munsingwear, 340 U.S. at 40, or through no ___________
voluntary action on the part of the losing party below. U.S. ____
Bancorp, 115 S. Ct. at 392. "Where mootness results from _______
settlement . . . the losing party has voluntarily forfeited his
legal remedy by the ordinary processes of appeal or certiorari,
thereby surrendering his claim to the equitable remedy of
vacatur." Id. The Munsingwear rule of vacatur upon mootness ___ ___________
does not include typical settlement situations in which the
losing party below voluntarily agrees to a settlement rendering
the case or controversy before the court moot. In settlement
cases, only exceptional circumstances will sway the equities in
favor of vacatur. Id. at 393. ___
Such exceptional circumstances are not present here.
Although Atkinson sought in the settlement process to preserve
this issue for appeal, the parties cannot by their agreement keep
this case ripe for appeal. Id. (noting that "exceptional ___
circumstances do not include the mere fact that the settlement
agreement provides for vacatur"). By voluntarily agreeing to
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settle this case during the pendency of the appeal, Atkinson's
actions rendered the underlying dispute moot. In a sense, then,
Atkinson "voluntarily abandoned review," id., and is not entitled ___
to the equitable measures it now seeks before this court.
In conclusion, the issue before us has been mooted by
the parties' voluntary settlement of the underlying controversy.
There being no exceptional circumstances in this case that
warrant vacatur, we dismiss the appeal.
So ordered. No costs to either party. _____________________________________
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Reference
- Status
- Published