Filed: Dec. 23, 2009
Latest Update: Feb. 22, 2020
Summary: To require the district court to permit, amendment here would allow plaintiffs to, pursue a case to judgment and then, if they, lose, to reopen the case by amending their, complaint to take account of the court's, decision.reconsideration into a Rule 15(a) motion.standard). Gray, 544 F.3d at 327.
United States Court of Appeals
For the First Circuit
No. 09-1495
TERRENCE FISHER ET AL.,
Plaintiffs, Appellants,
v.
KADANT, INC., ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Boudin and Selya, Circuit Judges,
and Laplante,* District Judge.
Kevin P. Roddy, with whom Lynne M. Kizis, Daniel R. Lapinski,
Wilentz, Goldman & Spitzer, P.A., Scott R. Shepherd, Natalie
Finkelman Bennett, Nathan C. Zipperian, James E. Miller, Laurie
Rubinow, Shepherd, Finkelman, Miller & Shah, LLP, Robert T. Naumes,
and Thornton & Naumes LLP were on brief, for appellants.
James W. Prendergast, with whom John G. Fabiano, Christopher
B. Zimmerman, Adam J. Hornstine, and Wilmer Cutler Pickering Hale
and Dorr LLP were on brief, for appellees Kadant, Inc. and Liberty
Diversified Industries, Inc.
Edward W. Little, Jr., and McCarter & English, LLP on brief
for appellee Kadant Composites LLC.
December 23, 2009
*
Of the District of New Hampshire, sitting by designation.
SELYA, Circuit Judge. This appeal grows out of an action
brought by four purchasers of allegedly defective products. Their
complaint, filed in the United States District Court for the
District of Massachusetts, sought class certification and the
recovery of class-wide damages against the manufacturer, its
parent, and a firm that had acquired its assets.
Confronted by dispositive motions, Fed. R. Civ. P.
12(b)(6), the district court dismissed the complaint for failure to
state a claim upon which relief could be granted. The court
entered judgment accordingly. The plaintiffs twice moved
unsuccessfully to set aside the judgment and file an amended
complaint. They now appeal only from the denial of the second of
these post-judgment motions.1
This appeal requires us to decide what legal standard
obtained with respect to the motion under review. That, in turn,
requires us to decide an antecedent question: what effect, if any,
does a passing reference to a possible future motion to amend,
contained in an opposition to a motion to dismiss, have on the
district court's authority to allow amendment of a dismissed
complaint after the entry of judgment?
1
All references in this opinion to the Civil Rules are to
the Civil Rules as they stood prior to the 2009 amendments. We
note, for the sake of completeness, that Rule 15(a) and Rule 59(e),
both discussed infra, have been amended, effective December 1,
2009. These amendments are of no consequence for purposes of this
appeal.
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We hold that such a passing request is without effect in
these circumstances. Thus, the plaintiffs must carry the burden of
showing that they are entitled to relief from the previously
entered judgment. They have not done so. Accordingly, we affirm
the denial of their post-judgment motion (albeit on grounds
different than those relied on by the lower court).
I. BACKGROUND
The plaintiffs filed their original complaint on December
27, 2007. They alleged that Kadant Composites LLC (Composites)
manufactured and sold defective decking and railing products and
failed to honor its concomitant warranty obligations. In addition,
the complaint sought to pierce the corporate veil and recover
against Composites's corporate parent, Kadant, Inc. (Kadant).
Among other things, Kadant allegedly had attempted to deflect
liability by (i) using Composites as its alter ego; (ii) selling
Composites's assets to a subsidiary of Liberty Diversified
Industries, Inc. (LDI) in a purportedly fraudulent transaction; and
(iii) helping to set up a deliberately underfunded pool for paying
out warranty claims. Finally, the complaint set forth breach-of-
warranty claims against LDI.
Each defendant moved to dismiss the complaint for failure
to state an actionable claim. Fed. R. Civ. P. 12(b)(6). The
plaintiffs opposed the motions. They did not, however, avail
themselves of their vested opportunity to amend as of right. See
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Fed. R. Civ. P. 15(a) (providing that a plaintiff may amend his
complaint once, as a matter of right, before an answer is filed);
see also Connectu LLC v. Zuckerberg, 522 F.3d 82, 91, 95-96 (1st
Cir. 2008) (illustrating operation of the rule). Nor did the
plaintiffs file a motion for leave to amend their complaint.
Instead, in the last line of their opposition to the motions to
dismiss, they stated: "If and to the extent that this Court finds
the Complaint deficient in any respect, Plaintiffs request leave to
amend to plead additional facts to cure any deficiency."
In due course, the district court granted the Rule
12(b)(6) motions and dismissed the case. Fisher v. Kadant, Inc.,
No. 07-12375 (D. Mass. Nov. 19, 2008) (unpublished order). As to
Composites, the court concluded that the plaintiffs had not
sufficiently pleaded any of the asserted causes of action. As to
Kadant, the court concluded that the plaintiffs had failed to plead
facts sufficient to pierce Composites's corporate veil. And as to
LDI, the court concluded that the plaintiffs had failed to plead
facts sufficient to establish successor liability. In the absence
of any pending motion for leave to file an amended complaint, the
court entered judgment for the defendants. The plaintiffs have not
appealed from the entry of this judgment and, thus, the correctness
of the order of dismissal is not before us.
On December 4, 2008, the plaintiffs moved to reconsider
the judgment and for leave to file an amended complaint. The
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defendants objected. The court denied the motion without prejudice
on January 12, 2009, explaining that the plaintiffs had failed to
proffer a proposed amended complaint along with their motion.
Fisher v. Kadant, Inc., No. 07-12375 (D. Mass. Jan. 12, 2009)
(unpublished order). The plaintiffs have not appealed from the
denial of this motion and, thus, the correctness of this order is
not before us.
On January 27, 2009, the plaintiffs filed a renewed
motion seeking the same relief. This time, however, they annexed
a proposed amended complaint to their motion. The defendants again
objected. The district court analyzed this motion under the
liberal pleading standard of Fed. R. Civ. P. 15(a) and found it
wanting. With respect to Kadant, the court determined that the
proposed amended complaint did not adequately plead facts anent
veil-piercing (alter ego liability). Further, in the proposed
amended complaint the plaintiffs dropped their claims against LDI
but added claims against its subsidiary, LDI Composites Co. (the
acquirer of Composites's assets). The district court determined
that, notwithstanding the change in parties, the proposed amended
complaint did not adequately plead successor liability. As to all
of these claims, the court made an explicit finding that any
further attempt to amend would be futile.
The court also rejected the plaintiffs' importuning that
they should be allowed to assert new warranty claims against
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Composites, noting that those claims were not supported by any new
facts and, accordingly, should have been raised earlier in the
litigation. Because the proposed amended complaint stated no
actionable claim against any defendant, the court denied the
plaintiffs' motion with prejudice. Fisher v. Kadant, Inc., No. 07-
12375 (D. Mass. Mar. 3, 2009) (unpublished order).
The plaintiffs took a timely appeal from this order. In
the appeal, the plaintiffs argue that the court below abused its
discretion by denying their renewed motion for post-judgment
relief. The defendants counter that the district court reached the
right result even though the court applied too generous a legal
standard in evaluating the motion. In this regard, the defendants
reason that because the district court entered judgment before the
filing of the motion, the court should not have looked to Rule
15(a) for guidance, but rather to the rules governing relief from
judgment.
II. ANALYSIS
As said, the plaintiffs have appealed only a single
order: the district court's denial of the second motion for
reconsideration. To determine the soundness of that order, we
first must identify the governing legal standard. In undertaking
that task, we are mindful that identifying the proper legal
standard to be applied in ruling on a particular matter presents a
question of law and, thus, the district court's identification of
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the standard is subject to de novo review. Vinick v. United
States, 205 F.3d 1, 7 (1st Cir. 2000); Inmates of Suffolk County
Jail v. Rufo,
12 F.3d 286, 291 (1st Cir. 1993).
Ordinarily, Rule 15(a) governs a motion to amend a
complaint. That rule directs that "[t]he court should freely give
leave [to amend] when justice so requires." Fed. R. Civ. P.
15(a)(2). If, however, a motion to amend is filed after the entry
of judgment, the district court lacks authority to consider the
motion under Rule 15(a) unless and until the judgment is set aside.
See Palmer v. Champion Mortg., 465 F.3d 24, 30 (1st Cir. 2006);
Maldonado v. Dominguez,
137 F.3d 1, 11 (1st Cir. 1998). As long as
the judgment remains in effect, Rule 15(a) is inapposite.
A good statement of this black-letter law is found in
Acevedo-Villalobos v. Hernández, 22 F.3d 384 (1st Cir. 1994), in
which we wrote: "Unless postjudgment relief is granted, the
district court lacks power to grant a motion to amend the complaint
under Rule 15(a)."
Id. at 389. The rationale for the principle is
unassailable: once judgment has entered, the case is a dead letter,
and the district court is without power to allow an amendment to
the complaint because there is no complaint left to amend. Mirpuri
v. ACT Mfg., Inc.,
212 F.3d 624, 628-29 (1st Cir. 2000).
In the instant case, the plaintiffs did not file a motion
to amend their complaint until December 4, 2008. That was well
after November 19, 2008, when the district court entered judgment.
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Consequently, the district court lacked authority to entertain the
motion to amend under the aegis of Rule 15(a) without first setting
aside the judgment under some rule geared to the accomplishment of
that task, say, Rule 59(e) or Rule 60(b).
This court's reasoning in James v. Watt, 716 F.2d 71 (1st
Cir. 1983) (Breyer, J.), is especially instructive. There, the
plaintiffs waited until after judgment had entered before moving
for leave to amend their complaint. The court upheld a denial of
the motion, explaining:
To require the district court to permit
amendment here would allow plaintiffs to
pursue a case to judgment and then, if they
lose, to reopen the case by amending their
complaint to take account of the court's
decision. Such a practice would dramatically
undermine the ordinary rules governing the
finality of judicial decisions, and should not
be sanctioned in the absence of compelling
circumstances.
Id. at 78.
In an effort to deflect the force of this precedent, the
plaintiffs point out that, in their memorandum opposing the
defendants' motions to dismiss, they made a passing request for
leave to amend in the event that the court found the complaint
wanting. The district court did not refer to this contingent
request when granting the motions to dismiss, but it later ruled
that because the plaintiffs had "initially raised the possibility
of amending the Complaint before dismissal," their second post-
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judgment motion should be treated "as a Rule 15(a) motion to amend
the pleadings before judgment."
For present purposes, then, the controlling question is
whether a contingent request to amend a complaint, contained in an
opposition to a motion to dismiss, trumps the final judgment rule
and reinstates the liberal standard of Rule 15(a) for the purpose
of adjudicating a motion for post-judgment relief, the object of
which is to put into play a new version of the complaint. We hold
that it does not.
Here, as is often the case, past is prologue. In Gray v.
Evercore Restructuring L.L.C., 544 F.3d 320 (1st Cir. 2008), this
court dealt with the efficacy of such a contingent request to
amend. There, the plaintiff's opposition to a motion to dismiss
his complaint declared that "in the event that the Court finds that
the Amended Complaint fails to state a claim, Plaintiff requests
leave to replead."
Id. at 327. We refused to treat this
contingent request as the functional equivalent of a pre-judgment
motion to amend; rather, we held flatly that such a "statement does
not constitute a motion to amend a complaint."
Id. We therefore
concluded that the district court had no obligation to perform a
Rule 15(a) analysis.
Id.
Earlier case law in this circuit is to the same effect.
See, e.g., ACA Fin. Guar. Corp. v. Advest, Inc.,
512 F.3d 46, 57
(1st Cir. 2008) (explaining that a contingent request to replead,
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contained in an opposition to a motion to dismiss, "does not win
the day for the plaintiffs" because, if honored, it "would lead to
delays, inefficiencies, and wasted work"); Wayne Inv., Inc. v. Gulf
Oil Corp., 739 F.2d 11, 15 (1st Cir. 1984) (holding that contingent
request for leave to amend made in an opposition to motion to
dismiss does not qualify as a motion to amend sufficient to
preserve the amendment question for appeal). What Judge (now
Justice) Breyer wrote in James,
quoted supra, is apropos here:
allowing plaintiffs to hedge their bets by adding a cursory
contingent request in an opposition to a motion to dismiss would
encourage plaintiffs to test the mettle of successive complaints
and freely amend under Rule 15(a) if their original strategic
choices prove inadvisable.
The plaintiffs attempt to counterpunch by citing our
decision in United States ex rel. Rost v. Pfizer, Inc., 507 F.3d
720 (1st Cir. 2007), abrogated on other grounds by Allison Engine
Co. v. United States ex rel. Sanders,
128 S. Ct. 2123 (2008).
There, the plaintiff appealed directly from the district court's
dismissal of his complaint and argued that, if the decision were
not reversed, he should at least be permitted to try anew by means
of amending his complaint.
Id. at 733. In support, he noted that
he had made a contingent request to amend prior to the entry of
judgment.
Id. at 734. The court of appeals upheld the dismissal
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of the complaint and, without much elaboration, remanded for
further consideration of whether to permit amendment. Id.
Rost is off point. That case, unlike this one, involved
an appeal from the granting of a motion to dismiss. See
id. at
723. In that procedural posture, the court of appeals may, in its
discretion and in the interests of justice, affirm the dismissal of
the complaint, yet nonetheless permit further amendment of it. See
Viqueira v. First Bank,
140 F.3d 12, 20 (1st Cir. 1998); Degnan v.
Publicker Indus., Inc.,
83 F.3d 27, 29 (1st Cir. 1996); Rivera-
Gomez v. de Castro,
843 F.2d 631, 636 (1st Cir. 1988). Rost came
to the court of appeals in this posture — and the existence of the
contingent request to amend was merely one of the factors that bore
on the exercise of the appellate court's discretion. Cf.
Gray, 544
F.3d at 327 (cautioning that "[t]here may be exceptional
circumstances in which a [pre-judgment] request to amend will
become the functional equivalent of a motion to amend").
The case at hand is a horse of a different hue. Here,
the plaintiffs did not appeal from the order of dismissal. Thus,
this case presents an entirely different question — a question
dealing with the legal standard that a district court should employ
in adjudicating a motion for reconsideration filed after the entry
of judgment. The Rost court did not deal with this question
(indeed, the plaintiff there had not filed any post-judgment
motion). To apply Rost to the materially different configuration
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of this case would undercut the procedural protections erected by
the Civil Rules to safeguard the finality of judgments. See, e.g.,
Fed. R. Civ. P. 59(e), 60(b).
That ends this aspect of the case. We hold that a
passing request for contingent leave to file an amended complaint,
made in an opposition to a motion to dismiss, is insufficient, in
and of itself, to bring a post-judgment motion for reconsideration
within the orbit of Rule 15(a). Put another way, such a request is
without effect where, as here, no appeal is taken from the granting
of the underlying motion to dismiss. Consequently, the plaintiffs'
contingent request, embodied in a single sentence at the tail end
of their lengthy and heated opposition to the defendants' motions
to dismiss, did not transmogrify their post-judgment motion for
reconsideration into a Rule 15(a) motion. Accordingly, the denial
of that motion must be evaluated under the more stringent
requirements that apply to motions for relief from judgment. Only
if the plaintiffs have satisfied those requirements will we have
occasion to decide whether the district court abused its discretion
in denying leave to amend under Rule 15(a).
In their motion for reconsideration, the plaintiffs
mention two such rules: Rule 59(e) and Rule 60(b). The former rule
provided at the relevant time, see supra note 1, that a "motion to
alter or amend a judgment must be filed no later than 10 days after
the entry of the judgment." Fed. R. Civ. P. 59(e). This time
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limit is mandatory. See Fed. R. Civ. P. 6(b) (prohibiting any
extension of time under Rule 59(e)). An untimely motion under Rule
59(e) is a nullity. Morris v. Unum Life Ins. Co., 430 F.3d 500,
502 (1st Cir. 2005).
The plaintiffs filed their first motion for
reconsideration on December 4, 2008. Viewed as a Rule 59(e)
motion, that motion was timely; that is, the motion was filed
within ten business days after the district court's entry of
judgment. But that motion is not before us: the district court
denied it without prejudice because it did not contain a proposed
amended complaint, and the plaintiffs did not appeal from that
order.2
This brings us to the plaintiffs' second (renewed) motion
for reconsideration — a motion that likewise sought relief from the
underlying judgment of dismissal. The plaintiffs filed that motion
2
The district court had the authority to reserve decision on
the first motion to reconsider and allow the plaintiffs to
supplement it with a proposed amended complaint. That step would
have preserved the motion's timeliness. See, e.g., Dresdner Bank
AG v. M/V Olympia Voyager, 465 F.3d 1267, 1271-72 (11th Cir. 2006);
U.S. E. Telecomms., Inc. v. U.S. W. Info. Sys.,
15 F.3d 261, 263
(2d Cir. 1994). Here, however, that is not what the district court
did; rather, it denied the motion. The plaintiffs have not argued
that the district court's order was the functional equivalent of
allowing supplementation. The fact that the order specified that
the denial of the first motion was "without prejudice" did not
render the second motion timely. Cf. Chico-Velez v. Roche Prods.,
Inc.,
139 F.3d 56, 59 (1st Cir. 1998) (holding that an untimely
refiling of a complaint is not excused simply because the district
court denied the initial filing without prejudice).
-13-
on January 27, 2009. Because this motion was not filed within the
ten-day window that opened following the entry of judgment, the
district court was without authority to consider it under Rule
59(e). See id. The fact that it was filed within ten days of the
denial of the first motion for reconsideration makes no difference.
See
Acevedo-Villalobos, 22 F.3d at 390 (holding that even though
movant filed second Rule 59(e) motion within ten days of denial of
first such motion, second motion, which sought relief from the
underlying judgment, was untimely because it was filed more than
ten days after the entry of that judgment).
The plaintiffs' alternative basis for their second motion
for reconsideration implicates Rule 60(b). Here, timeliness is not
an issue: a motion under Rule 60(b) must be filed "within a
reasonable time," Fed. R. Civ. P. 60(c)(1), and on certain grounds
within one year from entry of the judgment, id. (identifying Fed.
R. Civ. P. 60(b)(1)-(3)). Either way, the plaintiffs' second
motion for reconsideration, when viewed as a Rule 60(b) motion, was
timely.
Having isolated the only cognizable basis for the motion,
we next focus the lens of our inquiry on the standard of review.
An appellate court ordinarily reviews for abuse of discretion a
trial court's denial of a motion brought pursuant to Rule 60(b).3
3
Rule 60(b)(4), which permits relief from void judgments,
implicates different standards of review. See Shank/Balfour Beatty
v. Int'l Bhd. of Elec. Workers Local 99, 497 F.3d 83, 94 (1st Cir.
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Cintrón-Lorenzo v. Departamento de Asuntos del Consumidor, 312 F.3d
522, 527 (1st Cir. 2002). Here, however, the district court did
not review the motion under Rule 60(b) at all. In such a
situation, one option is to remand to the district court for
consideration under the correct standard. See, e.g., Colón-
Santiago v. Rosario,
438 F.3d 101, 112 (1st Cir. 2006); John G.
Alden, Inc. v. John G. Alden Ins. Agency of Fla., Inc.,
389 F.3d
21, 25 (1st Cir. 2004).
In this case, we conclude that remand would be an empty
gesture. The district court applied a more relief-friendly
standard than that which obtains under Rule 60(b) — the Rule 15(a)
standard — yet nonetheless denied relief. When, as in this case,
the trial court uses a standard that is more generous than the
correct standard yet determines that the party seeking relief
cannot prevail, the court of appeals is free to conclude that the
same result would obtain under the less generous standard (and,
thus, need not remand). See, e.g., TMF Tool Co. v. Siebengartner,
899 F.2d 584, 588 n.4 (7th Cir. 1990).
Here, moreover, there is a second reason why remand is
unnecessary. The plaintiffs have not made a prima facie showing of
the elements needed to secure Rule 60(b) relief. This, then, is an
2007). The present plaintiffs have not argued that the judgment
against them is void, and nothing in our discussion of the
plaintiffs' Rule 60(b) motion is meant to refer to motions under
Rule 60(b)(4).
-15-
appropriate case for application of the principle that even if the
district court employs an incorrect legal standard, the court of
appeals, in lieu of remanding, may affirm the challenged ruling on
an alternate ground that is evident in the record. See, e.g.,
InterGen N.V. v. Grina, 344 F.3d 134, 141 (1st Cir. 2003); Inmates
of Suffolk County
Jail, 12 F.3d at 291; Amman v. Stow Sch. Sys.,
982 F.2d 644, 649 (1st Cir. 1992); cf. Societe Des Produits Nestle,
S.A. v. Casa Helvetia, Inc.,
982 F.2d 633, 642 (1st Cir. 1992)
(concluding that, in lieu of remanding based on the district
court's use of an improper legal standard, the court of appeals may
apply the district court's key findings of fact to the correct
standard).
The Rule 60(b) standard is familiar. Success under that
rule requires more than merely casting doubt on the correctness of
the underlying judgment. See Karak v. Bursaw Oil Corp., 288 F.3d
15, 19 (1st Cir. 2002). Rather, Rule 60(b) relief is
"extraordinary in nature" and, thus, "motions invoking that rule
should be granted sparingly."
Id. A party seeking relief under
Rule 60(b) must demonstrate "at a bare minimum, that his motion is
timely; that exceptional circumstances exist, favoring
extraordinary relief; that if the judgment is set aside, he has the
right stuff to mount a potentially meritorious claim or defense;
and that no unfair prejudice will accrue to the opposing parties
should the motion be granted."
Id.
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Rule 60(b) is not a monolith. It provides that the court
may relieve a party from a final judgment on any of six enumerated
grounds. See Fed. R. Civ. P. 60(b)(1)-(6). The plaintiffs suggest
two bases for invoking Rule 60(b). We address these suggestions
separately.
First, the plaintiffs assert that they are entitled to
relief from judgment based on newly discovered evidence. They
claim to have adduced this newly discovered evidence through their
counsels' eleven-month investigation between the commencement of
the action and the service of their sequential motions for
reconsideration.
Motions for relief from judgment based upon newly
discovered evidence are typically analyzed under Rule 60(b)(2).
See, e.g., Karak, 288 F.3d at 19. Although the plaintiffs do not
explicitly invoke subsection (2) of Rule 60(b) in their briefs on
appeal,4 we have previously declared, and today reaffirm, that
post-judgment relief will not normally be denied for the movant's
failure to designate the proper subsection of Rule 60(b). See
Mitchell v. Hobbs,
951 F.2d 417, 421 n.5 (1st Cir. 1991); see also
Acevedo-Garcia v. Vera-Monroig,
368 F.3d 49, 54 (1st Cir. 2004)
(reviewing defendants' post-judgment motion under Rule 60(b)(6)
4
The plaintiffs' failure to develop this argument in their
briefs may well constitute either a waiver or a forfeiture. See
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). We give
them the benefit of the doubt and assume for argument's sake that
no waiver or forfeiture transpired.
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even though defendants did not cite that subsection in their
motion).
Moving to the substance of the claim, we find it
unpersuasive. The customary practice is to investigate first and
sue later, not vice-versa. In any event, "a party who seeks relief
from a judgment based on newly discovered evidence must, at the
very least, offer a convincing explanation as to why he could not
have proffered the crucial evidence at an earlier stage of the
proceedings." Karak, 288 F.3d at 19-20.
Here, the plaintiffs have not offered any cogent reason
why they could not, in the exercise of due diligence, have obtained
the evidence earlier. Nor have they offered a plausible
explanation as to why they failed to seek leave to amend their
complaint based on this evidence before judgment entered. That a
strategic choice may have backfired is not a ground for relief from
judgment.
The plaintiffs' second asserted basis for relief
implicates Rule 60(b)(1). This rule provides that the district
court may grant relief from a judgment based on "mistake,
inadvertence, surprise, or excusable neglect." Fed. R. Civ. P.
60(b)(1). The plaintiffs do not focus on their own inadvertence or
neglect but, rather, allege that this rule applies because the
district court made a mistake. This alleged mistake has two
closely related aspects: the court (i) overlooked the plaintiffs'
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contingent request to amend, made at the tail end of their
opposition to the motions to dismiss, and (ii) neglected to rule on
that request before entering final judgment.5
The district court's actions cannot reasonably be termed
"a mistake." We were presented with the same situation in Gray, in
which the district court did not make any reference to a passing
request to preserve a contingent future right to amend,
memorialized only in the plaintiffs' opposition to several
simultaneous motions to dismiss. We held that the passing request
was not tantamount to a motion to amend and, thus, because the
plaintiff had failed to move for leave to amend, "the district
court cannot be faulted for failing to grant such leave sua
sponte." Gray, 544 F.3d at 327. The same is true here: the
district court did not make a "mistake" in failing to grant leave
to amend before dismissing the case because no motion to amend was
pending at that time.
5
The courts of appeals do not agree on what circumstances
entitle a party to Rule 60(b)(1) relief based on an error of the
court. See 11 Charles Alan Wright, Arthur R. Miller & Mary Kay
Kane, Federal Practice and Procedure § 2858, at 293-95 (2d ed.
1995). Some courts hold that the term "mistake," as used in Rule
60(b)(1), applies to errors of the court, including errors of law.
See, e.g., United States v. Reyes, 307 F.3d 451, 455 (6th Cir.
2002); Cashner v. Freedom Stores, Inc.,
98 F.3d 572, 576 (10th Cir.
1996). Conversely, this court has held that an error of law cannot
be regarded as a "mistake" within the purview of Rule 60(b)(1).
See Silk v. Sandoval,
435 F.2d 1266, 1267 (1st Cir. 1971). This
case does not require us to delve into this distraction.
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We need go no further. The short of it is that there are
no exceptional circumstances here such as would justify the
granting of extraordinary relief.
III. CONCLUSION
To summarize, the plaintiffs have not shown any
cognizable basis for granting relief from judgment. Consequently,
we may simply affirm the only order appealed from — the order
denying the plaintiffs' renewed motion for reconsideration —
without reaching the logically subsequent question of whether the
district court abused its discretion in denying leave to amend
under Rule 15(a).
Affirmed.
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