                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                             APR 15 2004
                                    TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                 Clerk

 TRANSEURO AMERTRANS
 WORLDWIDE MOVING AND
 RELOCATIONS LIMITED,

          Plaintiff - Appellant,                          No. 02-5174
                                                     D.C. No. 02-CV-342-H
 v.                                                       (N.D. Okla.)

 CONOCO, INC. AND PHILLIPS
 PETROLEUM COMPANY,

          Defendants - Appellees.


                             ORDER AND JUDGMENT            *




Before LUCERO , McCONNELL , and TYMKOVICH, Circuit Judges.



          Transeuro Amertrans (“Transeuro”), a European moving company, seeks to

enjoin the merger of Conoco, Inc. (“Conoco”) and Phillips Petroleum Company

(“Phillips”); toward that goal, it appeals the district court’s denial of its request

for a preliminary injunction. Because the act sought to be enjoined—the merger

between Conoco and Phillips—has occurred, we conclude that Transeuro’s appeal



      This order and judgment is not binding precedent, except under the
      *

doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
from the denial of the preliminary injunction is moot. Accordingly, we

DISMISS.

      On November 19, 2001, Conoco and Phillips announced to the public their

intention to merge. Transeuro filed this action on April 30, 2002, seeking to

enjoin the then-impending merger. Having learned that the FTC’s approval of the

merger was imminent, on August 20, 2002, Transeuro filed a motion for a

temporary restraining order. The district court denied this motion on August 22,

finding that Transeuro failed to show irreparable injury. It set a hearing for

Transeuro’s pending preliminary injunction motion, which was ultimately held on

September 17, 2002. Following the hearing, the district court issued an order on

October 9, 2002, denying Transeuro’s preliminary injunction for lack of standing.

      On appeal, Transeuro asks us to reverse the district court’s denial of the

preliminary injunction. Before considering the merits of the appeal, however, we

must determine whether we have subject matter jurisdiction. “Mootness is a

matter of jurisdiction, [and] a court may raise the issue sua sponte.” McClendon

v. City of Albuquerque, 100 F.3d 863, 867 (10th Cir. 1996). It is firmly

established that an appeal from the denial of a motion for a preliminary injunction

is rendered moot when the act sought to be enjoined has occurred. See Rio

Grande Silvery Minnow v. Keys III, 355 F.3d 1215, 1220 (10th Cir. 2004) (10th

Cir. 2004); Oakville Dev. Corp. v. FDIC, 986 F.2d 611, 613 (1st Cir. 1993);


                                         -2-
Railway Labor Executives Ass'n v. Chesapeake W. Ry., 915 F.2d 116, 118 (4th

Cir. 1990); Garza v. Westergren, 908 F.2d 27, 29 (5th Cir. 1990); Gilpin v.

American Fed'n of State, County, & Mun. Employees, AFL-CIO, 875 F.2d 1310,

1313 (7th Cir. 1989); In re Sewanee Land, Coal & Cattle, Inc., 735 F.2d 1294,

1295 (11th Cir. 1984).

      After the district court’s denial of Transeuro’s motion for a temporary

restraining order and before the preliminary injunction hearing, on August 30,

2002, Conoco and Phillips consummated their merger. In the instant case,

therefore, it is undisputed that the act sought to be enjoined by Transeuro has now

occurred. Accordingly, we conclude that Transeuro’s appeal of the denial of its

preliminary injunction motion is moot.

      At oral argument, Transeuro recognized this jurisdictional problem and

attempted to reframe its request for relief as a request for divestiture. Indeed,

Transeuro appears to have made a Motion for an Order of Divestiture on

September 16, 2002. However, the district court did not rule on the divestiture

motion in its denial of Transeuro’s preliminary injunction motion. Rather, the

district court stated:

      [T]he Court finds that Plaintiff Transeuro does not have standing to
      seek a preliminary injunction in this matter. Therefore, Plaintiff’s
      motion for a preliminary injunction . . . is hereby denied. By this
      order, the Court finds it unnecessary to reach any other issue
      presented in this case.


                                          -3-
Transeuro Amertrans Worldwide Moving and Relocations Ltd. v. Conoco, Inc.,

No. 02-CV-342-H (D. Okla. filed Oct. 9, 2002). In its notice of appeal to this

court, moreover, Transeuro appeals only “from the order denying plaintiff’s

motion for preliminary injunction.” (App. of Appellant at 262.)

      The sole issue before us, therefore, is the district court’s denial of

Transeuro’s motion for a preliminary injunction. It would be improper for us to

address Transeuro’s divestiture motion for the first time on appeal. Because the

district court has not yet resolved the ultimate issue of divestiture, we decline to

address that issue prematurely.

      Accordingly, we DISMISS.

                                                     Entered for the Court



                                                     Carlos F. Lucero
                                                     Circuit Judge




                                         -4-
