Smith, et al 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
AND TO DISMISS PETITION FOR
REHEARING EN BANC
(opinion 263 F.3d 394 (5th Cir.
August 22, 2001))
Before REAVLEY, SMITH, and DeMOSS,
Circuit Judges.
PER CURIAM:
The defendants filed, on January 3, 2002,
an unopposed motion “to dismiss all pro-

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2001, is WITHDRAWN.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

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