contribution retirement plan and michael mccloy are individually and as representatives of a consequence defense and beneficiaries in and on behalf of the georgetown university defined contribution retirement plan the georgetown university voluntary contribution morning counsel attorneys for plaintiffs appellants your honour's of the issues in this case should not present even a close question in the complaint contained specific and detailed allegations that the participants order that was entered by the district court with very specific explicit an unambiguous and that is that the court dismissed the complaint without prejudice  the presidents in this circuit and others make it very clear that unless the action is dismissed without prejudice that it is not a final an appealable order and i understand your point because we had said generally but we said that in specific factual context and of course at hillary has argued the context here is different so from my point of view the question is given the authority that you have cited what weighs in your favor in terms of saying that the district court intended and the fact is that there were numerous claims in the complaint and addressed in the opinion that were factual based for example all of the chord but challenge to our assertion that  record keeping services could be obtained for roughly thirty five dollars on average for participants but failed to address entirely the allegations that the participants were paying hundreds of  dollars we also address that we were able to address that in our proposed method compliant where we cited additional factual evidence including national surveys supporting the thirty five dollars claim another claim was the district court failed to address entirely the standing of participants in the district does a district court have to explain why it's dismissing a case i'm not sure of the answer to that if it's summary judgment there's no requirement in the federal rules that the district court explain itself d well your honor i think it is in his and are reviewed review yes your honor i believe it is yeah so no matter what the district court says listen i want to cut away a few things how can you ever have an action without a complaint in the federal system i don't believe so your honor but i gree i mean it's like having a smile without the cat and if you don't have if you don't have a complaint because arguments about it i think that that's the essential question well just a there are i don't want to take up all your time but just to go back a little bit you know the idea that well if the complaint can be repaired through an amendment then it can then it's not the dismissal of the complaint is without presence not a final order runs into all kinds of difficulties not the least of which is how do we know whether it can be amended without  order or repaired through an amendment how do you know and you don't know necessarily know exactly why the district court dismissed the case because there's no requirement district court even give an opinion on that so me the point for example with respect to the allegations about excessive fees the dismissal was based on lack of standing because neither of the two plaintiffs had invested in the vanguard funds but both of the plaintiffs had invested in the which we also alleged charge excessive fees and the court didn't even address that particular claim well let me ask you actually argues that looking at the order  which i take to be a rule fifty eight order that oh as to your allegation regarding record keeping say that it's mailed to state a claim it causes the steering according to the district court was entirely speculative contrary to case law and common sense and does not warrant discovery close quote how did you understand the district court to view that you know other words doesn't that support absolutely you the district court had reject for example that legal theory behind your  are think we understood to mean she explicitly said that she rejected the proposition that record keeping thies for these contracts to be obtained at thirty five dollars per participant but she didn't reject at all the allegation that these plaintiffs retain up to three hundred dollars per purchase from and that by the way is only on average when you as we did in our proposed method compliant when you translate that down to the individual level we have plaintiffs who do you agree then that yes the entry on the docket saying this case is closed are not cases closed is something this court should consider then you lose well your honor we reject that proposition of course that's just an administrative filing that they seem to be tethered to the actual order of the court and the only thing i would like to mention about that is the defendants did not ask for dismissal of the action their motion for a motion for dismissal was to dismiss the complaint and they certainly failed to ask for dismissal was prejudiced the court relied significantly to dismiss with a motion to dismiss the record but i pulled it up on the docket did ask for a dismissal with prejudice dismissal of the complaint with prejudice the actual motion to dismiss your honor i believe he specifically requested only a motion to dismiss based on twelve b one and twelve b six and there was no mention in the motion to dismiss at all or in the memorandum in support of the motion to dismiss that the action should be dismissed with prejudice amended complaint that was not equally as long but basically did not take care of any of the excess of a pleadings that were in that case and the court the defendant then actually requested a motion to dismiss w prejudiced that was granted by the court to judge randolph question about how do we know if the district court were aware of these cases as they submitted in as the courts admitted in the subsequent memorandum opinion then it would clearly have been possible to be more specific in the original dismissal order rather than simply say that the complaint was dismissed without prejudice which  from our perspective in the perspective of really the majority of the courts that have addressed this issue on a loud for or should allow for leave to amend especially when it's with respect to the st complaint and especially when there are significant to counsel which was how are we to know that in this particular case the action was closed and i think there are a number of considerations here the st of which is that george collier signed an is indicative of the district court having stepped away from the case and it's a final appeal of the order but as you know other circuits have used that language to be ambiguous and may only dismissed there were no further proceedings contemplated and that dismissal with or without prejudice was deemed to be a non final or well that's their opening brief they cite the th circuit case all right saying assuming we take the docket as under the rules authorizing the clerk's office or in this case as it's argued presumably the district court's law clerk  notation that is not anywhere in the statement by the district court herself in any of her well orders or the memorandum opinion in january will your honor the orders that are posted by the district judge on the docket are orders of the court there are frequently orders that have no attached document at all and those are just as so if the courts question is if the law clerk i guess there are two aspects of this one is distinguishing between the law clerk and the judge and we know in this case that this order came from judge collier because know what i'm really focusing on is as a january memorandum opinion and order what signal or what should we find in judge randolph's view signaled that this was a final appeal order where the what i'm describing in school fifty eight orders says for the reason stated in my memorandum opinion i grant the motion to dismiss and the complaint is here by dismissed without prejudice so you are three things you know st as we do believe that the language this case is closed is significant because it describes what the district court's intent was which the governing standard nd of all the absence of any date or mention of the prospect of amendment is also a significant consideration here it in my experience when a court dismisses a complaint without prejudice but thinks that there is claim under rule eight and in that case the district court indicated that it dismissed the action as opposed to just a complaint because the plane had not indeed he had any desire to amend the complaint before the case was dismissed and the same thing  your true it is your to you that the plaintiffs could upon reading georgetown's most into this mess they could have amended their complaint there they could indicate in their opposition that there were additional facts they had available it's also important keep in mind here that this case is so i think it's a better know it's mariner up to if if the if the only thing that happened as you say is the judge issues an order dismissing the complaint without prejudice and the next day  the plaintiff files a notice of appeal and then a week later files a motion to amend the complaint is the notice of appeal known void retroactive the complaints dismissed then that's the end of it it's pretty simple yeah we certainly agree with that your honor but the way that we try to reconcile these cases that suggests that there is a world in which a complaint can be dismissed but the court can anticipate future action such that it's routine interest action the distinction that we drive is that there's no indication anywhere here that the court was intending to hold on to the case no such ongoing connection as judge collier explained at the time she was closing the case which is not something that ordinarily happens with a dismissal of a case without prejudice if the court contemplates if there's going to be an amendment forthcoming at the plaintiffs and not requested any sort of amendment there was no indication in the language of the opinion that there was some easy way to amend the complaint and one worrisome aspect of the opponent's position here is the assumption that that there's always some way to just you know make up new allegations to plug that hole in my experience at least given that we have rule eleven that's that's not the case and when the plaintiffs decide to stand on their complaint and you know this is a very lengthy complaint with i think more than one hundred allegations you know they're putting out there they're putting their best case forward and if that case does not ciralsky which again was a dismissal without prejudice in which the court indicated that even though there was a possibility even though it was the ironically possible to amend the complaint again because the point that know there circuits the complaint has gotten further and indeed one went to trial so that where the district court here says you theory here that given that we have this somewhat murky area and the effort by this court whether you agree with it or not sort of provide some clarity by talking about dismissal of a complaint check with chambers see what was really going on what was intended and that rationale as i understand it does not require this court to opine on the language the case is closed and whether or not that type of notation appears properly in the docket under rule seventy nine fictitious so when when the district we're in this case is reviewing the complaint against the backdrop of this trial findings and the n y u case it's reasonable we think to evaluate the plausibility of the complaint by seeing whether the plaintiffs could come forward and make allegations that would surmount the findings of the trial judge and why you case so because the plaintiffs could not actually allege that there were other universities that had these tien you at ease and that had similar without prejudice but with leave to amend for two weeks and the time expired for amendment and two years passed and then the the the  plaintiffs appealed and the supreme court allowed the appeal as timely how do you explain that but again your honor and it's hard for me to answer that question without immediately or any other case and you know we would be happy to submit a matter and what one would think that modern jurisprudence on the other are some circumstances in which a complaint is dismissed without prejudice and there is a skill or there is a time period provided for amendment and courts have found that if the plate that does not amend within that time period at the expiration of that time period constitutes and when the order comes i know we can certainly look into this young case and in figure out if it's if it remains good luck but if it's hard hard for me on the if there are no further questions we would ask the court to dismiss the appeal for want of jurisdiction or any alternative judgment of i would like to address your question about the difference between a complaint an action i think there is a very clear distinction between those two things the complaint is alleging facts that supports a particular claim of liability and the question is whether the factual allegations in the complaint support the claim of liability the action is the claim of liability and when an action is dismissed the court is making a decision that no factual allegations and no amendment to that complaint could support that claim of liability can there be an action without a complaint no you honor and if the if were there if there can be we have please explain to me how that is possible your honor i think it's it's looking at it from two different perspectives i agree that there cannot be an action without a complaint the question the allegation of additional facts that would support the action and i think there are numerous instances in this particular case that indicate that would be true one is of course with respect to the issue about whether the claim regarding the limitations on the the t a traditional annuity were bored by the statute of limitations defendants noted in a footnote that it was barred by the street or so so that particular issue the three or statute depends on whether the plaintiff had actual knowledge of the claim of the of the illegal activity not just whether there were restrictions on the annuity contract itself but whether in fact those restrictions violated the law so that is clearly a factual issue that could have benefited by an additional facts plater additional factual inquiry and the plaintiff never question please did the plaintiffs indicate to the district court in any way what you're telling us today namely that there were allegations that could have been made to address the concerns of the district court and therefore the platers would be filing a motion for leave to file an amended complaint we did not in advance but we did within thirty days of that i'm talking about president from multiple districts our view was that that initial opinion an order which simply dismissed the complaint without prejudice was not a final appeal border and therefore we had a reasonable time to file our motion for leave to announce you know  way to read the rules to say that the rules have been amended to try to make the rules forty eight order clear so we don't have pieces like this but my point is that at least the law in this circuit and other circuits is not so clear therefore why was there not some burden on you to try to seek clarification rather than risk that you  er regarding the memo to the point that the complaint was that the action was going to be dismissed with prejudice you think burden is on the court district court yes your honor i do to make the order clear otherwise it is right well that's my point whose burden is it to seek class a teachin of the district court's order if it's not clear and i assume this is pure speculation on my part that whoever prepared the  you did not include the defendant's motion to dismiss in your opinion and you're not saying you're quiet but given the nature of this case there are trying to figure out what's going on i went