Coaxial Communications of Central Ohio, Inc.; Coaxialassociates of Columbus I; Coaxial Associates Ofcolumbus Ii; Phoenix Associates,plaintiffs-appellants Cross-appellees, v. Teachers Insurance and Annuity Association of America,defendant-appellee Cross-appellant, 989 F.2d 499 (6th Cir. 1993)

ORDER

The plaintiffs appeal and the defendant cross-appeals a district court judgment dismissing this breach of contract case for lack of diversity jurisdiction. The plaintiffs now move to dismiss their appeal on grounds of mootness. They ask that the district court's judgment of dismissal be vacated and the case remanded to the district court for dismissal of their complaint. The defendant has not filed a response.

Mootness is determined by examining whether an actual controversy between the parties exists in light of intervening circumstances. Powell v. McCormack, 395 U.S. 486 (1969). In the present case, the plaintiffs admit that the underlying controversy between the parties has been resolved by judgment entered in the United States District Court for the Southern District of New York in Case No. 88 Civ. 1073. "Where it appears upon appeal that the controversy has become entirely moot, it is the duty of the appellate court to set aside the decree below and to remand the cause with directions to dismiss." Duke Power Co. v. Greenwood County, S.C., 299 U.S. 259, 267 (1936). See Great Western Sugar Co. v. Nelson, 442 U.S. 92 (1979); United States v. Munsingwear, Inc., 340 U.S. 36 (1950); Neighbors Organized to Insure a Sound Environment, Inc. v. McArtor, 878 F.2d 174 (6th Cir. 1989); United States v. Cleveland Elec. Illuminating Co., 689 F.2d 66, 68 (6th Cir. 1982).

It is therefore ORDERED that the plaintiffs' motion to dismiss is granted. The district court's judgment of dismissal is hereby vacated and the case remanded to the district court with instructions to dismiss the complaint. It is further ORDERED that the defendant notify the clerk within fourteen (14) days of this order if it intends to pursue its cross-appeal in Case No. 92-3401. Failure to provide such notice will result in dismissal of the defendant's cross-appeal for want of prosecution.