     Case: 12-31154       Document: 00512162173         Page: 1     Date Filed: 03/04/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           March 4, 2013

                                     No. 12-31154                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



FARENCO SHIPPING COMPANY, LIMITED,

                                                  Plaintiff - Appellant
v.

FARENCO SHIPPING PTE, LIMITED; OCEAN GREAT INDUSTRIAL,
LIMITED; TEAMZONE, LIMITED; LIU SONG,

                                                  Defendants - Appellees



               Appeal from the United States District Court for the
                          Eastern District of Louisiana
                                 2:12-CV-2544


Before JOLLY, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       Appellant Farenco Shipping Company (“Farenco”) appealed the district
court’s order releasing its attachment on the M/V OCEAN SHANGHAI.
Appellee Ocean Great Industrial (“Ocean Great”) now moves to dismiss the
appeal for lack of subject matter jurisdiction. Ocean Great argues that the
appeal has become moot because the claims in the underlying case have been


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 12-31154     Document: 00512162173     Page: 2   Date Filed: 03/04/2013



                                  No. 12-31154

settled and because the M/V OCEAN SHANGHAI has departed, Farenco having
voluntarily released the attachment pursuant to the settlement. Farenco agrees
that the case is now moot and requests only that we vacate the order of the
district court before dismissing the appeal.
      “[M]ootness by reason of settlement does not justify vacatur of a judgment
under review.” U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 29
(1994). However, the determination of whether a judgment should be vacated
is equitable, and “exceptional circumstances” may merit vacatur even in cases
rendered moot by settlement. Id. As an initial matter, there is no district court
judgment in this case to vacate. Although the district court’s order releasing the
attachment was appealable, it was clearly interlocutory. The parties have
provided no authority or discussion concerning whether the case law dealing
with vacatur of a district court judgment applies equally to vacatur of a district
court order. Assuming without deciding that Bancorp sets forth the standard for
vacatur of a district court order on appeal after a case has been mooted by
settlement, we find no “exceptional circumstances” in this case that would
warrant vacatur.
      Farenco recognizes that “[t]he principal factor . . . in determining whether
exceptional circumstances exist is whether the mootness was caused by the
voluntary action of the party seeking vacatur.”       Farenco Opposition at 2.
However, Farenco argues that its settlement in this case should not be
considered voluntary because it faced a “Hobson’s choice” after the district court
released the attachment on the M/V OCEAN SHANGHAI. Although Farenco
describes the “extreme circumstances” under which it agreed to settle the case,
we find these to be irrelevant. Settlements are frequently made under difficult
circumstances, and often represent the least bad of several bad options; this does
not make such settlements involuntary.



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                                   No. 12-31154

      Farenco also argues that exceptional circumstances exist because other
parties may attempt to invoke collateral estoppel against Farenco based on
issues decided in the district court’s order. Farenco further argues that the
district court’s order “constitutes dangerous and incorrect precedent that
implicates significant constitutional questions.” Farenco Opposition at 3. First,
it is far from clear that the district court’s order would give rise to any collateral
estoppel effect. As Farenco recognizes, “[i]t does not follow that simply because
an attachment vacatur order is appealable even though it is not a final judgment
that collateral estoppel necessarily attaches.” Farenco Opposition at 12 n.4.
Second, it is “inappropriate . . . to vacate mooted cases, in which we have no
constitutional power to decide the merits, on the basis of assumptions about the
merits.”    Bancorp, 513 U.S. at 27.            Moreover, we perceive nothing
“extraordinary” in Farenco’s situation; it is not unusual that an appellant would
disagree with the order of the district court and wish to avoid any preclusive
effect arising from it.
      Great Ocean’s motion is granted, and Farenco’s appeal is DISMISSED for
lack of subject matter jurisdiction. Because Farenco voluntarily mooted its
appeal by settlement and because extraordinary circumstances do not exist, we
decline to vacate the district court’s order.




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