              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT



                             No. 00-40850




     ABC ARBITRAGE PLAINTIFFS GROUP; ET AL,


                                            Plaintiffs,


     ALCATEL PLAINTIFFS GROUP,


                                            Plaintiff-Appellant,


          versus


     SERJE TCHURUK; ET AL,

                                            Defendants,

     SERJE TCHURUK;
     JEAN-PIERRE HALBRON; ALCATEL SA,

                                            Defendants-Appellees.



          Appeal from the United States District Court
                for the Eastern District of Texas
                          (4:99-MD-1263)

                             May 2, 2001

Before GARWOOD, HALL,1 and BARKSDALE, Circuit Judges.




     1
      Circuit Judge of the Ninth Circuit, sitting by designation.
PER CURIAM:2

         Appellees contend (Appellees’ brief, statement of jurisdiction

and pp. 20, 21) that we may not take jurisdiction of this appeal

because the judgment sought to be appealed has not been “set forth

on   a       separate   document”–i.e.   a   document   separate   from   that

explaining the court’s reasons for the complained of order or

ruling–as required (in addition to entry on the docket under FED.

R. CIV. P. 79(a)) by FED. R. CIV. P. 58.        Appellees are correct that

the challenged order of the district court–its thirty-two page

“Memorandum Opinion and Order” dated June 23, 2000–does not comply

with Rule 58 in this respect, and there is no other document

separate therefrom, embodying only the ruling or order of the

court. While we can take jurisdiction of an appeal notwithstanding

noncompliance with Rule 58's separate document requirement, our

prior precedents, binding on this panel, hold that we can do so

only if that noncompliance has been waived by both the appellant

and the appellee.        Silver Star Enterprises, Inc. v. M/V Saramacca,

19 F.3d 1008, 1012-13 (5th Cir. 1994); Theriot v. ASW Well Service,

Inc., 951 F.2d 84 (5th Cir. 1992); Seal v. Pipeline, Inc., 724 F.2d

1166 (5th Cir. 1984).        See also Transit Management of SELA v. Group

Ins. Admin., 226 F.3d 376, 381-82 (5th Cir. 2000).           Appellees have

not waived this requirement.


         2
      Pursuant to 5TH CIR. R. 47.5 the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.

                                         2
     Accordingly, we may not take jurisdiction and the appeal is

                           DISMISSED.3




     3
      Should a new appeal be taken after compliance with Rule 58,
new, current briefs shall be submitted.
     We note that there may be a possible question whether a
certificate under FED. R. CIV. P. 54(b), which is not present, is
necessary to confer appellate jurisdiction here. We do not resolve
that matter.     We observe, however, that when a judgment in
compliance with Rule 58 is entered the district court could moot
any possible question in this respect which might arise on a
subsequent appeal by also making an appropriate Rule 54(b)
certificate.

                                3
