Imperial Chemical Industries, Plc, Plaintiff-appellant, v. Heumann Pharma Gmbh & Co., Defendant,andbarr Laboratories, Inc., Defendant-appellee, 991 F.2d 811 (Fed. Cir. 1993)

ORDER

Imperial Chemical Industries PLC (ICI) and Barr Laboratories, Inc. (Barr) jointly move to vacate the July 21, 1992 judgment of the United States District Court for the Southern District of New York and to remand with instructions to the district court to dismiss without prejudice pursuant to Fed. R. Civ. P. 41(a). Generic Drug Manufacturer (Generic) moves for leave to file an amicus curiae brief out of time. ICI opposes. Barr opposes. Generic submits a supplemental exhibit.

The parties to the district court proceeding have entered into a settlement agreement resolving the entire dispute. They ask us to vacate and remand in accordance with their agreement and this court's practice. See Smith International, Inc. v. Hughes Tool Co., 839 F.2d 663 (Fed. Cir. 1988; U.S. Philips Corp. v. Windmere Corp., 971 F.2d 728 (Fed. Cir. 1992), cert granted. Generic seeks to file an amicus brief out of time in order to argue that the court should not vacate the district court's judgment.

Generic's motion appears to be a belated attempt by a nonparty to interfere with the parties' settlement of a dispute. Generic's role here is not as a "friend of the court" in the usual sense. Its amicus brief does not address the merits of the appeal. Moreover, the rules governing the filing of amicus briefs contemplate the filing of a brief "within the time allowed the party whose position as to affirmance or reversal the amicus brief will support." Fed. R. App. P. 29. Generic's amicus brief is not only out of time, it also does not support the position of either party.

Accordingly,

IT IS ORDERED THAT:

(1) ICI and Barr's joint motion is granted.

(2) Generic's motion for leave to file an amicus curiae brief is denied.