
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            United States Court of Appeals                                For the First Circuit                                 ____________________          No. 95-2290                                 RUSCO STEEL COMPANY,                                Plaintiff - Appellee,                                          v.                         ATKINSON-KIEWIT, J/V, ETC., ET AL.,                               Defendants - Appellants.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                [Hon. Raymond J. Pettine, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                _____________________               John D. Deacon, Jr. for appellants.                ___________________               Holly R.  Rao, with  whom Olenn  &  Penza was  on brief  for               _____________             _______________          appellee.                                 ____________________                                   October 25, 1996                                 ____________________                    Per Curiam.  This  case comes before us on  appeal from                    Per Curiam.                    __________          the  district  court's  grant  of  partial  summary  judgment  to          appellees  Rusco Steel Company ("Rusco").   At all times relevant          to this case,  Rusco was a subcontractor to Atkinson-Kiewit Joint          Venture  ("Atkinson")  on the  Jameson  Bridge  project in  Rhode          Island.   Plaintiff  Richard  Cosimini worked  for  Rusco on  the          project.  He brought  the original action against  Atkinson after          he was injured during the course  of his employment with Rusco on          the  Jamestown Bridge project.  Atkinson then filed a third party          complaint against Rusco, claiming, in part, that Rusco failed  to          procure certain  insurance as  required by  the contract.   After          determining  that  Rusco  had  in fact  procured  the  insurance,          Atkinson  voluntarily  dismissed   the  related  counts   without          prejudice.  Thereafter, Rusco  and Atkinson brought cross motions          for summary judgment on another issue related to the scope of the          insurance coverage.  In  an amended decision, the  district court          granted  Rusco  partial   summary  judgment   on  the   insurance          procurement  issue  that had  previously  been  dismissed.   This          appeal ensued.                    After  Atkinson filed  its  brief in  this appeal,  the          parties settled their dispute  through this court's Civil Appeals          Management  Program  (CAMP).   Under  the  rules  of  this  court          governing  CAMP,   parties  may  be  directed   to  consider  the          possibility of settlement.   See First Circuit Rule 47.5.   Under                                       ___          the  terms of the settlement, all pending appeals and issues were                                         -2-          dismissed, except for  the grant of  partial summary judgment  to          Rusco, the issue from which Atkinson now appeals.                    The settlement of  the underlying  controversy in  this          case  renders the  issue on  appeal moot.   United  States Parole                                                      _____________________          Comm'n v.  Geraghty, 445 U.S.  388, 395-97  (1980).  "It  is well          ______     ________          settled that  a case is  moot 'when the  issues presented  are no          longer "live" or the  parties lack a legally  cognizable interest          in the outcome, . . .  or alternatively, when the 'party invoking          federal court  jurisdiction' no longer  has 'a personal  stake in          the  outcome of  the  controversy.'"   Boston  & Maine  Corp.  v.                                                 ______________________          Brotherhood  of Maintenance of Way Employees, 94 F.3d 15, 20 (1st          ____________________________________________          Cir.  1996) (citations omitted).   Once a case  or controversy is          moot,  a   federal  court  no  longer   retains  jurisdiction  to          adjudicate the merits of  the case.  U.S. Const. art. III,   2 et                                                                         __          seq.;  see   also  U.S.  Bancorp  Mortgage  Co.  v.  Bonner  Mall          ____   __________  ____________________________      ____________          Partnership, 115 S. Ct. 386, 390 (1994).          ___________                    "As  a general rule, when a case becomes moot on appeal          --or an aspect thereof -- we vacate the district court's decision          and remand with  a direction  to dismiss."1   Newspaper Guild  of                                                        ___________________          Salem v. Ottaway Newspapers,  Inc., 79 F.3d 1273, 1285  n.15 (1st          _____    _________________________          Cir. 1996); see also United States v. Munsingwear, Inc., 340 U.S.                      ________ _____________    _________________          36,  40 (1950) ("The established practice of the Court in dealing          with a  civil case from a  court in the federal  system which has          become moot while on its way  here or pending our decision on the                                        ____________________          1  The party seeking vacatur  bears the burden of showing that it          is entitled to such  equitable relief.  U.S. Bancorp,  115 S. Ct.                                                  ____________          at 392.                                           -3-          merits is to reverse or vacate the judgment below and remand with          a direction to dismiss.").  We vacate a lower court's judgment in          order  to "clear[] the path for future relitigation of the issues          between  the parties and eliminate[]  a judgment, review of which          was prevented  through happenstance."   Munsingwear, 340  U.S. at                                                  ___________          40.                      We may  vacate the district court's  judgment under the          Munsingwear    rule   only    when   mootness    arises   through          ___________          "happenstance,"  Munsingwear,  340  U.S.  at 40,  or  through  no                           ___________          voluntary action  on the  part of the  losing party below.   U.S.                                                                       ____          Bancorp,  115  S.  Ct. at  392.    "Where  mootness results  from          _______          settlement . . .  the losing party has voluntarily  forfeited his          legal  remedy by the ordinary  processes of appeal or certiorari,          thereby  surrendering  his  claim  to  the  equitable  remedy  of          vacatur."  Id.   The  Munsingwear rule of  vacatur upon  mootness                     ___        ___________          does  not  include typical  settlement  situations  in which  the          losing party  below voluntarily agrees to  a settlement rendering          the case or  controversy before  the court moot.   In  settlement          cases, only  exceptional circumstances will sway  the equities in          favor of vacatur.  Id. at 393.                             ___                    Such  exceptional circumstances  are not  present here.          Although Atkinson  sought in  the settlement process  to preserve          this issue for appeal, the parties cannot by their agreement keep          this  case ripe  for  appeal.    Id.  (noting  that  "exceptional                                           ___          circumstances do not  include the mere  fact that the  settlement          agreement  provides for  vacatur").   By voluntarily  agreeing to                                         -4-          settle this case  during the pendency  of the appeal,  Atkinson's          actions  rendered the underlying dispute moot.  In a sense, then,          Atkinson "voluntarily abandoned review," id., and is not entitled                                                   ___          to the equitable measures it now seeks before this court.                    In conclusion, the issue before  us has been mooted  by          the  parties' voluntary settlement of the underlying controversy.          There  being  no  exceptional  circumstances in  this  case  that          warrant vacatur, we dismiss the appeal.                    So ordered.  No costs to either party.                    _____________________________________                                         -5-
