                  UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 98-30572

                     RONALD C. BOURG; ET AL.,

                                                         Plaintiffs,

                     L & L SANDBLASTING, INC.,

                                           Intervenor Plaintiff -
                                 Third Party Defendant - Appellee,

                              VERSUS

  CONTINENTAL OIL COMPANY, also known as Conoco, Inc.; ET AL.,

                                                         Defendants,

         CNG PRODUCING COMPANY, also known as Consolidated
                        Natural Gas Company,

                                            Defendant - Third Party
                                              Plaintiff - Appellant.



           Appeal from the United States District Court
               for the Eastern District of Louisiana
                          (95-CV-3192-D)


                          August 13, 1999
Before SMITH, DeMOSS, and STEWART, Circuit Judges
PER CURIAM:*




     *
          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that this opinion should not be published and is not precedent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.
     In this appeal we are asked to decide whether the district

court properly granted summary judgment to third-party defendant-

appellee, L & L Sandblasting (“L & L”), against the impleader claim

asserted by third-party plaintiff-appellant, CNG Producing Company

(“CNG”).   For the reasons that follow, we dismiss the instant

appeal as untimely.



                                I.

     Transcontinental Gas Pipe Line Corporation (“Transco”) owns

and operates pipeline metering equipment.   In May, 1994, Transco

contracted with L & L to sandblast and paint metering equipment

located on offshore platforms in the Gulf of Mexico. To facilitate

that operation, Transco chartered the M/V MISS JANE, a supply

vessel owned by LaSalle Marine (“LaSalle”), to ferry L & L workers

to the various platforms.

     Ronald Bourg (“Bourg”) was employed by L & L as a sandblaster

and painter.   On October 6, 1994, Bourg was injured when he fell

through deteriorated grating on the dolphin deck of Fixed Platform

246-A, which was owned and operated by CNG.    At the time of his

injury, Bourg was attempting to tie the M/V MISS JANE to the

platform, which was located on the Outer Continental Shelf.

     Bourg filed suit against CNG and others in federal district

court in the Eastern District of Louisiana.     CNG then demanded

indemnification from Bourg’s employer, L & L, in accordance with an

indemnification provision contained in an Offshore Master Service

Contract it had executed with L & L on March 17, 1993.   When L & L


                                2
refused, CNG filed a third-party breach of contract claim against

L & L.       L & L then moved for summary judgment on CNG’s claim, which

the district court granted on February 24, 1997.2

        On    the    eve    of   trial,   the   remaining     parties   reached   a

settlement agreement.            As a result, the district court entered an

order dismissing the action on October 27, 1997.                    On April 29,

1998, those same parties filed a joint motion to dismiss their

claims.       The district court signed the motion on May 2, 1998, and

the clerk entered the order on May 4, 1998.                  On May 21, 1998, CNG

filed the instant appeal, challenging the district court’s order of

February 27, 1997, granting L & L’s motion for summary judgment.3



                                          II.

        The first issue we address is whether we have jurisdiction

over this appeal.            L & L contends that jurisdiction is lacking

because CNG’s appeal was not timely filed.                   L & L points to the

fact that CNG did not file its notice of appeal until May 21, 1998,

well     after      the    district   court’s   order   of    October   27,   1997,

dismissing the action. CNG, however, argues that the appeal was in

time because the filing period did not begin to run until May 4,

1998, the date the district court signed the parties’ joint motion

to dismiss.         To resolve this issue, we first must determine the

    2
          The district court’s ruling was based on the finding that
Louisiana law governed CNG’s demand, and that the indemnity
obligation was therefore precluded by the Louisiana Oilfield
Indemnity Act of 1981, La. Rev. Stat. § 9:2780.
    3
          CNG also appealed the district court’s May 27, 1997 order
denying CNG’s motion for a new trial.

                                           3
legal   effect    of   the     district   court’s    October    27   order.

Specifically, we must decide whether the order amounted to a final

judgment, and whether it was properly entered in accordance with

the Federal Rules of Civil Procedure.        If so, CNG’s appeal is too

late.

      A final judgment is one that “ends the litigation on the

merits and leaves nothing for the court to do but execute the

judgment.”    Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978).

We   follow   a   practical,    rather    than   technical,    approach   to

determining whether a district court decision meets this standard.

“A judgment reflecting an intent to dispose of all issues before

the court is final.”     Moreau v. Harris County, 158 F.3d 241, 244

(5th Cir. 1998).

      In this case, the parties entered a settlement agreement on

October 26, 1997, which resolved all remaining issues in the case.

Accordingly, at that point in time the litigation had ended, the

rights of the parties were no longer in dispute, and the district

court was left with nothing more to do but dismiss the case.          After

being notified of the settlement, the district court entered its

order of October 27, entitled “Order of Dismissal.”            In a short,

perfunctory order, the district court noted that the case had

settled, and dismissed the action.        On these facts we are inclined

to believe that the district court entered its order of dismissal

intending to put a final end to the litigation.

      CNG, however, argues that the order was not final because the

district court’s dismissal was conditional in nature.           CNG points


                                     4
to   the    fact    that   in   the   order   the   district    court   retained

jurisdiction over the settlement “for enforcement purposes,” and

granted the parties 60 days to enforce the agreement if so needed.

CNG’s argument misses the mark.

      The    district      court’s    dismissal     of   this   suit    was   not

conditional.        It is true, as CNG alleges, that the district court

dismissed this suit while simultaneously retaining jurisdiction

over the settlement.        But the district court in no way conditioned

its dismissal on the parties’ performance under the settlement

agreement.         The district court’s order allowed the parties to

enforce the settlement for 60 days, if needed, but it did not allow

the parties to relitigate the merits of the underlying action.4

      Additionally, even if the district court’s dismissal was

conditional, that condition was intended to last for only 60 days.

Thus, on December 26, 1997, when those 60 days were up, the

district court’s order ripened into an appealable final judgment,

and the time to file a notice of appeal began to run.              Because CNG

did not file the instant appeal until May 21, 1998, it is untimely


      4
          CNG’s argument overlooks the fact that a district court
may render final judgment on the merits, and yet retain
jurisdiction over the settlement agreement. This is so because a
final judgment on the merits is independent from the rights a party
may later assert pursuant to a settlement agreement.       A final
judgment is the formal and legal end to litigation on the merits.
A settlement agreement, on the other hand, creates new contractual
rights that are distinct from the rights asserted in the earlier
litigation. See Kokkonen v. Guardian Life Ins. Co. of America, 511
U.S. 375 (1994) (recognizing that a suit to enforce a settlement
agreement is distinct from the original litigation, and thus
usually requires its own basis of jurisdiction). Thus, the mere
fact that the district court retained jurisdiction over the
settlement does not make its order any less final.

                                         5
even under CNG’s proffered rationale.      See Fed. R. App. P. 4.   For

these reasons we conclude that the district court’s order of

October 27 was a final judgment.       We turn next to the question of

whether the order was properly entered in the record.

     Rule 58 provides that “[e]very judgment shall be set forth on

a separate document.”   Fed. R. Civ. P. 58.       It further provides

that “[a]ttorneys shall not submit forms of judgment except upon

direction of the court, and these directions shall not be given as

a matter of course.”    Id.   In this case, the district court’s

October 27 order is set forth on its own separate document.

Moreover, it was not a form of judgment submitted by the attorneys

and merely signed by the district judge.      Although the October 27

“Order of Dismissal” is not entitled “final judgment,” the label is

unimportant.

          If the language used by the court clearly
          evidences the judge’s intention that it shall
          be his final act it constitutes a final
          judgment, and when such intention has been so
          evidenced and the docket entry has been made a
          final judgment has been pronounced and entered
          and the time to appeal starts to run.

Erstling v. Southern Bell Tel. & Telegraph Co., 255 F.2d 93, 95

(5th Cir. 1958).5

     5
          We are aware that in Banker’s Trust Co. v. Mallis, 435
U.S. 381, 387-88 (1978), the Supreme Court held that the Second
Circuit properly assumed jurisdiction of an appeal from an order of
dismissal, despite the lack of a separate judgment, when (1) the
order was the final decision in the case, and (2) the appellee did
not object to the taking of the appeal. We are also aware that in
accordance with Mallis, this Circuit will, when circumstances
permit, find waiver of the separate document requirement to avoid
the termination of an appeal. See Hammack v. Baroid Corp., 142
F.3d 266 (5th Cir. 1998); Baker v. Mercedes Benz of N. Am., 114
F.3d 57 (5th Cir. 1997). Mallis’ waiver rule is inapplicable in

                                   6
        We thus conclude that the district court’s October 27 order

was a final judgment properly entered in the record.   Accordingly,

CNG’s appeal is untimely and must be dismissed.

                       DISMISSED.




the present case, however, because L & L, the appellee, expressly
objected to the taking of this appeal.

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