United States Court of Appeals

Fifth Circuit

FILED

February 18, 2004

Charles R. Fulbruge III

Clerk

In the

United States Court of Appeals

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.

* * * * * * * * * * * * * * *
2

_______________

m 03-40099

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ALL PLAINTIFFS,

Plaintiff-Appellee,

VERSUS

ALL DEFENDANTS,

LIAISON COUNSEL,

Defendant-Appellee,

VERSUS

CHESAPEAKE EXPLORATION LIMITED PARTNERSHIP,

Movant-Appellant.

* * * * * * * * * * * * * * *
3

_______________

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.
4

_________________________

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,

Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Chesapeake Exploration Limited Partnership (“CELP”) appealsthe denial of its motion

to enforce the terms of a class action

settlement. The district court’s order is but

one action taken in its capacity as an administrator of the settlement fund. The order

neitherfullyresolvesthe rights and liabilities of

all the parties nor fulfills the court’s mandate

to interpret and administer the settlement. It is

accordingly not a final appealable order, so we

dismiss the appeal.

I.

CELP, a wholly-owned subsidiary of

Chesapeake Energy Corporation (“CE”),

proceeding by way of motion in the Southern

District of Texas, attempts to assert its

putative rights to partake in a settlement from

which it has previously been excluded. The

settlement (the “Global Settlement”) arises

out of a series of lawsuits filed in the

mid-1990’s against numerous oil producers by

oil royalty and interest owners. The plaintiffs

sued in various state and federal courts,

charging the oil producers with the systematic

underpayment of royalties for oil purchased at

the wellhead. The litigation was consolidated

in January 1998 by the Judicial Panel on

Multi-District Litigation and assigned to the

Southern District of Texas for further

proceedings.

Thereafter, most of the original defendants

settled, reaching an agreement that divided the

parties into four classes: settling plaintiffs,

non-settling plaintiffs,settling defendants, and

non-settling defendants. Non-settling plaintiffs

and non-settling defendants are regarded as

being outside the settlement class and are

neither bound by the terms of the agreement

nor entitled to file claims under it. In addition,

the agreement excludes “affiliates” of nonsettling defendants, defined as entitiesin which

a non-settling defendant possessed a fifty

percent or more ownership interest at any time

between January 1, 1986, and September 30,

1998.

CE was designated a non-settling

defendant, because it did not contribute

* 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.
5

monies to the settlement fund. CE timely

objected to this classification and its exclusion

as a class member. The district court certified

the Global Settlement over these objections,1

and CE timely appealed, then voluntarily

abandoned the appeal.2 Despite entering a

final judgment, the district court retained

“continuing jurisdiction over the Settlement

Agreement . . . for the purposes of enforcing,

implementing, administering, construing and

interpreting [the] Settlement Agreement.”3

The present appeal arises out of a motion

by CELP asking the district court to order a

settlement disbursement in satisfaction of

claims owned by three of CELP’s newly- acquired subsidiaries: DLB Oil & Gas, Inc.

(“DLB”), Hugoton Energy Corp. (“Hugoton”), and Anson Corporation (“Anson”).

DLB, Hugoton, and Anson are formerly classaction plaintiffs who asserted a right to

damages for barrels of oil they sold at

artificially deflated prices in the preceding

decade. 

The district court, having previously

determined that CELP could not assert claims

on its own behalf because it is a non-settling

defendant, denied CELP’s motion, because it

concluded DLB, Hugoton, and Anson are affiliates of a non-settling defendant. Each of

the three companies was acquired by CELP

before the effective date specified in the Global

Settlement’s definition of “affiliates” of a nonsettling defendant. As a result, the court

concluded, the companies’ claims were excluded by the terms of the agreement and could

not be asserted by CELP.4

II.

With limited exception, this court has jurisdiction only over final judgments. See 28

U.S.C. § 1291; Graham v. Johnson, 168 F.3d

762, 774 (5th Cir. 1999). “A ‘final decision’

generally is one which ends the litigation on

the merits and leaves nothing for the court to

do but execute the judgment.” Catlin v.

United States, 324 U.S. 229, 233 (1945).

Where an action involves multiple parties, “a

disposition of the action asto only some of the

parties does not result in a final appealable order absent a certification by the district court

under Federal Rule of Civil Procedure 54(b).”

Transit Mgmt., Inc. v. Group Ins. Admin.,

Inc., 226 F.3d 376, 381 (5th Cir. 2000). 

The district court order is not a final

judgment, because it neitherresolvesthe rights

and liabilities of all the parties nor concludes

the district court’s role as an administrator of

the settlement. The parties do not dispute that

the original order certifying the Global

1

In re Lease Oil Antitrust Litig. (No. II), 186

F.R.D. 403 (S.D. Tex. 1999)

2 As a result, the fairness of the settlement is no

longer an issue CELP can raise on appeal.

3

See also Kokkonen v. Guardian Life Ins. Co.

of Am., 511 U.S. 375, 380-81 (1994) (providing

that courts lack inherent jurisdiction to enforce settlements that they approve, but may nevertheless

retain jurisdiction for that purpose at the time of

settlement).

4 The district court misconstrued CELP’s motion as a Fed. R. Civ. P. 60(b) motion for relief

from the judgment on the basis of the court’s belief

that CELP sought to be re-designated as a class

member. To the contrary, CELP’s motion asserts

a right to collect based on an independent ground

that was not the subject of the court’s earlier ruling, namely, by contesting whether DLB, Hugoton,

and Anson are affiliates of a non-settling defendant

barred from collecting in the judgment. As a

result, we agree with CELP that its motion should

not be analyzed under the standards of rule 60(b).
6

Settlement was a final appealable order, or that

CE’s initial appeal of that decision was

properly initiated. Rather, the question is

whether a subsequent order interpreting that

settlement to determine the rights and

liabilities of one party is a final appealable

judgment. On the facts of this case, it is not. 

Ofsingular importance to our conclusion is

the manner in which CELP initiated the

present dispute. Instead of pursuing a private

cause of action between itself and the plan administrator, CELP proceeded by way of

motion in the pre-existing class action case. It

did not serve a complaint on a defendant5or

seek to have its claims adjudicated under a

new docket number. Indeed, under Kokkonen,

511 U.S. at 380-81, for any such lawsuit to be

heard in federal court, there would need to be

an independent jurisdictional basis not found

here. As a result, the present action is a

continuing part of the original class action,

subject to the terms and conditions by which

the district court retained the subject matter

jurisdiction necessary to interpret the

settlement and issue binding orders thereunder.

Among the consequencesfor CELP’s decision to pursue its claim in this fashion is the

subordination of its interests to the larger action pending in the district court, which retained jurisdiction over the settled case for the

purpose of “enforcing, implementing,

administering, construing and interpreting” the

settlement. The issuance of an interpretive

order defining CELP’s rights and obligations

under the agreement may be an action that is

consistent with this retained grant of

jurisdiction, but it is not an action that marks

the termination of the court’s role as an

administrator of the settlement. So long as the

court retains its residual grant of jurisdiction

furtherto enforce, administer, and interpret the

settlement agreement, any action it takes in

this capacity lacks the attribute of finality that

is necessary to make the order immediately

appealable.6 

As a result, we DISMISS the appeal for

want of jurisdiction and, accordingly, we do

5

 And indeed, at oral argument, CELP’s attorney had difficulty even identifying the defendant.

The motion to enforce the settlement is ostensibly

a claim to require the administrator of the settlement fund specifically to perform its obligations as

a fiduciary, but that party, the Garden City Group,

was not sued and was not involved in the

proceedings before the district court or this court

on appeal. Rather, CELP’s actions are being opposed by counsel for the settling plaintiff class.

6

 There are several alternative means by which

CELP could have brought this claim that would

have lent themselves to a quicker appeal: (1) by

pursuing an independent claim against the plan’s

fiduciariesin state (or with theproper jurisdictional

basis, federal) court for breach of contract, thereby

asserting its rights to a settlement distribution in a

vehicle that presents that singular issue for

adjudication; (2) by accepting its status as a nonsettling defendant and instituting a new cause of

action to prevail on the merits of the underlying

antitrust and state tort claims; or (3) having proceeded as it did by way of motion, by asking the

district court to determine that there exists no just

reason to delay an appeal of its individual rights

and to certify the issue for appellate review under

rule 54(b). See FED. R. CIV. P. 54(b); Witherspoon v. White, 111 F.3d 399, 402-03 (5th Cir.

1997). At oral argument, appellees’ counsel stated

their position that at least the second of these

alternatives remains open to CELP. Alternatively,

CELP may wait until the district court completes

its task as an administrator of the fund, and appeal

the order at that time.
7

not reach the merits of the district court’s conclusion that CELP may not assert rights on behalf of DLB, Hugoton, and Anson.