                                                 United States Court of Appeals
                                                          Fifth Circuit
                                                        F I L E D
                                                        February 18, 2004
                  In the
                                                    Charles R. Fulbruge III
  United States Court of Appeals                            Clerk
           for the Fifth Circuit




              _______________

                m 02-41704
              _______________


 THE MCMAHON FOUNDATION; J. TOM POYNOR,

                                Plaintiffs-Appellees,

                  VERSUS

     AMERADA HESS CORPORATION, ET AL.,

                                Defendants,

                  VERSUS

CHESAPEAKE EXPLORATION LIMITED PARTNERSHIP,

                                Movant-Appellant.


          ***************
              _______________

                m 03-40099
              _______________


              ALL PLAINTIFFS,

                                 Plaintiff-Appellee,

                  VERSUS

             ALL DEFENDANTS,
              LIAISON COUNSEL,

                                 Defendant-Appellee,

                  VERSUS

CHESAPEAKE EXPLORATION LIMITED PARTNERSHIP,

                                 Movant-Appellant.


          ***************




                     2
                     _______________

                       m 03-40238
                     _______________


         THE MCMAHON FOUNDATION; J. TOM POYNOR,

                                       Plaintiffs-Appellees,

                         VERSUS

            AMERADA HESS CORPORATION, ET AL.,

                                       Defendants,

                         VERSUS

       CHESAPEAKE EXPLORATION LIMITED PARTNERSHIP,

                                       Movant-Appellant.

                  ***************

THE MCMAHON FOUNDATION; J. TOM POYNOR; MARY ALMA POWELL,

                                       Plaintiffs-Appellees,

                         VERSUS

              OCCIDENTAL PETROLEUM; ET AL.,

                                       Defendants,

                         VERSUS

       CHESAPEAKE EXPLORATION LIMITED PARTNERSHIP,

                                       Movant-Appellant.




                            3
                                      _________________________

                             Appeals from the United States District Court
                                  for the Southern District of Texas
                                           m C-98-CV-048
                                           m C-98-CV-130
                                            MDL m 1206
                                   _________________________




Before JOLLY, SMITH, and DEMOSS,                           out of a series of lawsuits filed in the
  Circuit Judges.                                          mid-1990’s against numerous oil producers by
                                                           oil royalty and interest owners. The plaintiffs
JERRY E. SMITH, Circuit Judge:*                            sued in various state and federal courts,
                                                           charging the oil producers with the systematic
    Chesapeake Exploration Limited Partner-                underpayment of royalties for oil purchased at
ship (“CELP”) appeals the denial of its motion             the wellhead. The litigation was consolidated
to enforce the terms of a class action                     in January 1998 by the Judicial Panel on
settlement. The district court’s order is but              Multi-District Litigation and assigned to the
one action taken in its capacity as an ad-                 Southern District of Texas for further
ministrator of the settlement fund. The order              proceedings.
neither fully resolves the rights and liabilities of
all the parties nor fulfills the court’s mandate              Thereafter, most of the original defendants
to interpret and administer the settlement. It is          settled, reaching an agreement that divided the
accordingly not a final appealable order, so we            parties into four classes: settling plaintiffs,
dismiss the appeal.                                        non-settling plaintiffs, settling defendants, and
                                                           non-settling defendants. Non-settling plaintiffs
                       I.                                  and non-settling defendants are regarded as
   CELP, a wholly-owned subsidiary of                      being outside the settlement class and are
Chesapeake Energy Corporation (“CE”),                      neither bound by the terms of the agreement
proceeding by way of motion in the Southern                nor entitled to file claims under it. In addition,
District of Texas, attempts to assert its                  the agreement excludes “affiliates” of non-
putative rights to partake in a settlement from            settling defendants, defined as entities in which
which it has previously been excluded. The                 a non-settling defendant possessed a fifty
settlement (the “Global Settlement”) arises                percent or more ownership interest at any time
                                                           between January 1, 1986, and September 30,
                                                           1998.
   *
     Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-               CE was designated a non-settling
lished and is not precedent except under the limited       defendant, because it did not contribute
circumstances set forth in 5TH CIR. R. 47.5.4.

                                                       4
monies to the settlement fund. CE timely                     the three companies was acquired by CELP
objected to this classification and its exclusion            before the effective date specified in the Global
as a class member. The district court certified              Settlement’s definition of “affiliates” of a non-
the Global Settlement over these objections,1                settling defendant. As a result, the court
and CE timely appealed, then voluntarily                     concluded, the companies’ claims were exclud-
abandoned the appeal.2 Despite entering a                    ed by the terms of the agreement and could
final judgment, the district court retained                  not be asserted by CELP.4
“continuing jurisdiction over the Settlement
Agreement . . . for the purposes of enforcing,                                      II.
implementing, administering, construing and                     With limited exception, this court has jur-
interpreting [the] Settlement Agreement.”3                   isdiction only over final judgments. See 28
                                                             U.S.C. § 1291; Graham v. Johnson, 168 F.3d
    The present appeal arises out of a motion                762, 774 (5th Cir. 1999). “A ‘final decision’
by CELP asking the district court to order a                 generally is one which ends the litigation on
settlement disbursement in satisfaction of                   the merits and leaves nothing for the court to
claims owned by three of CELP’s newly- ac-                   do but execute the judgment.” Catlin v.
quired subsidiaries: DLB Oil & Gas, Inc.                     United States, 324 U.S. 229, 233 (1945).
(“DLB”), Hugoton Energy Corp. (“Hugo-                        Where an action involves multiple parties, “a
ton”), and Anson Corporation (“Anson”).                      disposition of the action as to only some of the
DLB, Hugoton, and Anson are formerly class-                  parties does not result in a final appealable or-
action plaintiffs who asserted a right to                    der absent a certification by the district court
damages for barrels of oil they sold at                      under Federal Rule of Civil Procedure 54(b).”
artificially deflated prices in the preceding                Transit Mgmt., Inc. v. Group Ins. Admin.,
decade.                                                      Inc., 226 F.3d 376, 381 (5th Cir. 2000).

    The district court, having previously                       The district court order is not a final
determined that CELP could not assert claims                 judgment, because it neither resolves the rights
on its own behalf because it is a non-settling               and liabilities of all the part ies nor concludes
defendant, denied CELP’s motion, because it                  the district court’s role as an administrator of
concluded DLB, Hugoton, and Anson are af-                    the settlement. The parties do not dispute that
filiates of a non-settling defendant. Each of                the original order certifying the Global

                                                                4
   1
    In re Lease Oil Antitrust Litig. (No. II), 186                 The district court misconstrued CELP’s mo-
F.R.D. 403 (S.D. Tex. 1999)                                  tion as a Fed. R. Civ. P. 60(b) motion for relief
                                                             from the judgment on the basis of the court’s belief
   2                                                         that CELP sought to be re-designated as a class
    As a result, the fairness of the settlement is no
longer an issue CELP can raise on appeal.                    member. To the contrary, CELP’s motion asserts
                                                             a right to collect based on an independent ground
   3
      See also Kokkonen v. Guardian Life Ins. Co.            that was not the subject of the court’s earlier rul-
of Am., 511 U.S. 375, 380-81 (1994) (providing               ing, namely, by contesting whether DLB, Hugoton,
that courts lack inherent jurisdiction to enforce set-       and Anson are affiliates of a non-settling defendant
tlements that they approve, but may nevertheless             barred from collecting in the judgment. As a
retain jurisdiction for that purpose at the time of          result, we agree with CELP that its motion should
settlement).                                                 not be analyzed under the standards of rule 60(b).

                                                         5
Settlement was a final appealable order, or that           tained jurisdiction over the settled case for the
CE’s initial appeal of that decision was                   purpose of “enforcing, implementing,
properly initiated. Rather, the question is                administering, construing and interpreting” the
whether a subsequent order interpreting that               settlement. The issuance of an interpretive
settlement to determine the rights and                     order defining CELP’s rights and obligations
liabilities of one party is a final appealable             under the agreement may be an action that is
judgment. On the facts of this case, it is not.            consistent with this retained grant of
                                                           jurisdiction, but it is not an action that marks
   Of singular importance to our conclusion is             the termination of the court’s role as an
the manner in which CELP initiated the                     administrator of the settlement. So long as the
present dispute. Instead of pursuing a private             court retains its residual grant of jurisdiction
cause of action between itself and the plan ad-            further to enforce, administer, and interpret the
ministrator, CELP proceeded by way of                      settlement agreement, any action it takes in
motion in the pre-existing class action case. It           this capacity lacks the attribute of finality that
did not serve a complaint on a defendant5 or               is necessary to make the order immediately
seek to have its claims adjudicated under a                appealable.6
new docket number. Indeed, under Kokkonen,
511 U.S. at 380-81, for any such lawsuit to be               As a result, we DISMISS the appeal for
heard in federal court, there would need to be             want of jurisdiction and, accordingly, we do
an independent jurisdictional basis not found
here. As a result, the present action is a
continuing part of the original class action,                 6
                                                                 There are several alternative means by which
subject to the terms and conditions by which
                                                           CELP could have brought this claim that would
the district court retained the subject matter             have lent themselves to a quicker appeal: (1) by
jurisdiction necessary to interpret the                    pursuing an independent claim against the plan’s
settlement and issue binding orders thereunder.            fiduciaries in state (or with the proper jurisdictional
                                                           basis, federal) court for breach of contract, thereby
                                                           asserting its rights to a settlement distribution in a
   Among the consequences for CELP’s deci-                 vehicle that presents that singular issue for
sion to pursue its claim in this fashion is the            adjudication; (2) by accepting its status as a non-
subordination of its interests to the larger ac-           settling defendant and instituting a new cause of
tion pending in the district court, which re-              action to prevail on the merits of the underlying
                                                           antitrust and state tort claims; or (3) having pro-
                                                           ceeded as it did by way of motion, by asking the
                                                           district court to determine that there exists no just
   5
     And indeed, at oral argument, CELP’s attor-           reason to delay an appeal of its individual rights
ney had difficulty even identifying the defendant.         and to certify the issue for appellate review under
The motion to enforce the settlement is ostensibly         rule 54(b). See FED. R. CIV. P. 54(b); Wither-
a claim to require the administrator of the settle-        spoon v. White, 111 F.3d 399, 402-03 (5th Cir.
ment fund specifically to perform its obligations as       1997). At oral argument, appellees’ counsel stated
a fiduciary, but that party, the Garden City Group,        their position that at least the second of these
was not sued and was not involved in the                   alternatives remains open to CELP. Alternatively,
proceedings before the district court or this court        CELP may wait until the district court completes
on appeal. Rather, CELP’s actions are being op-            its task as an administrator of the fund, and appeal
posed by counsel for the settling plaintiff class.         the order at that time.

                                                       6
not reach the merits of the district court’s con-
clusion that CELP may not assert rights on be-
half of DLB, Hugoton, and Anson.




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