United States Court of Appeals

For the First Circuit

Nos. 99-1938

99-1939

SHASHI L. MIRPURI, INDIVIDUALLY AND

ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, ET AL.,

Plaintiffs, Appellants,

v.

ACT MANUFACTURING, INC., ET AL.,

Defendants, Appellees.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

 Selya, Circuit Judge,

Bownes, Senior Circuit Judge,

and Boudin, Circuit Judge.

Brian P. Murray, with whom Stephen Moulton, Nancy Freeman

Gans, Moulton & Gans, LLP, Karl P. Barth, Hagens Berman, P.S.,

Lionel Z. Glancy, Neal A. Dublinsky, David Pastor, Gilman &

Pastor, and Rabin & Peckel, LLP were on brief, for appellants.

Brian E. Pastuszenski, with whom Kevin J. O'Connor, Anthony

J. Canata, Matthew A. Wolfman, and Testa, Hurwitz & Thibeault,

LLP were on brief, for appellees.
May 5, 2000
1On March 31, 1998, ACT estimated the size of the deficiency

at $13,100,000 and concluded that "the ultimate cause of the

shortfall could not be finally determined."

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SELYA, Circuit Judge. This procedural motley requires

us to determine when, and under what circumstances, an order

dismissing an action "without prejudice" is final and, hence,

appealable. Along the way, we also must determine whether the

district court erred either by rejecting the plaintiffs' belated

attempt to amend their complaint or by refusing to extend the

time within which they might file a notice of appeal.

Concluding, as we do, that the lower court handled the matter

appropriately in all respects, we affirm.

I. BACKGROUND

On February 25, 1998, ACT Manufacturing, Inc. (ACT)

announced that it had an unanticipated inventory shortfall and

that it would delay the announcement of its 1997 fourth-quarter

and year-end earnings.1 In response, the price of its stock

tumbled and a shareholder, Shashi L. Mirpuri, filed this class

action. Mirpuri's complaint alleged, inter alia, that ACT and

two of its senior officers had violated federal securities laws.

At a conference held on August 12, 1998, the district

court indicated its intention to appoint three other individuals

as co-lead plaintiffs. The defendants raised no objection to

the appointment but informed the court that they planned to file
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a motion to dismiss on the ground that the complaint did not

allege facts sufficient to support a strong inference of

scienter. See 15 U.S.C. § 78u-4(b)(2); see also Greebel v. FTP

Software, Inc., 194 F.3d 185, 191-201 (1st Cir. 1999). To

forfend such a motion, the court allowed the plaintiffs sixty

days in which to file an amended complaint. The plaintiffs

availed themselves of this opportunity and the defendants

thereafter moved to dismiss the amended complaint. The

plaintiffs opposed the motion.

The district court held a hearing on April 28, 1999.

Near the end of that session, the defendants offered to amend

the complaint for a second time. The court unequivocally

refused the offer, stating:

No. There's one shot on it, frankly. And I

made it clear, I think, at the first hearing

that we had, that the opportunity to amend

complaints is not a reenactment of

Scheherazade. You tell the story maybe

twice, but not endlessly night after night.

At the close of the hearing, the court reserved decision on the

motion to dismiss.

In due course, Judge Woodlock wrote a memorandum

decision that explained his reasons for granting the motion to

dismiss. The final footnote states in pertinent part:

This dismissal is . . . without prejudice .

. . . To be sure, at the Scheduling

Conference in this matter, I identified
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certain shortcomings in Plaintiffs'

pleadings and afforded them the opportunity

to file an amended complaint. They did so.

But when the course of the discussion at the

hearing on the motion to dismiss appeared to

be proceeding in a direction adverse to

their amended complaint, plaintiffs' counsel

suggested a willingness to file yet another

amended complaint containing additional but

unidentified details to particularize their

pleadings further. The plaintiffs were

given fair warning both of the deficiencies

in their initial complaint and the need to

draft an amended complaint upon which the

court could finally act at the motion to

dismiss stage. They were afforded adequate

time to do so. The evaluation of pleadings

cannot be extended endlessly. These

plaintiffs have failed in their effort to

present a complaint which can withstand

scrutiny and that failure should be

recognized with finality in this case.

Whether they can state a claim in some other

case is not a matter, however, I will

attempt to preclude by a dismissal, as

defendants request, with prejudice.

On June 1, 1999, the clerk entered Judge Woodlock's memorandum

decision on the docket, along with a separate order that

dismissed the action and a notation that read "[c]ase closed."

Twenty-seven days later, the plaintiffs filed a motion

for permission to file a further amended complaint. The

district court denied this motion on July 13, explaining that

"final judgment ha[s] entered in this case." On July 26, the

plaintiffs, apparently aware that the thirty-day appeal period

had expired, requested an extension of time within which to file

a notice of appeal from the June 1 dismissal order. Finding
2We say "initially" because, were we to determine that the

district court erred in refusing to extend the appeal period, we

might then proceed to consider the merits of the district

court's dismissal order.

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neither good cause nor excusable neglect, the district court

rejected this request on August 10. These appeals ensued.

II. ANALYSIS

We begin by noting what is not before us. The

plaintiffs apparently concede that if the June 1 dismissal order

was final and appealable, they allowed the time for filing a

notice of appeal from that order to expire — and concession or

not, it is nose-on-the-face plain that any such appeal would be

time-barred. See Fed. R. App. P. 4(a)(1)(A). Initially, at

least, this narrows the lens of inquiry to the question of

finality and to the propriety of two other orders, namely, the

July 13 order denying leave to amend and the August 10 order

refusing to extend the time for appealing.2 As to the first of

these matters, we afford plenary review to the district court's

legal conclusion that final judgment had entered. See Exxon

Corp. v. Esso Workers' Union, Inc., 118 F.3d 841, 844 (1st Cir.

1997). We review the latter two rulings for abuse of

discretion. See Correa-Martinez v. Arrillaga-Belendez, 903 F.2d

49, 59 (1st Cir. 1990) (stating the standard of review for the

granting or denial of a motion for leave to file an amended
3Since the question of finality is bound up with the

district court's treatment of the motion for leave to amend, we

deal with it as part and parcel of this discussion.

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complaint); Gochis v. Allstate Ins. Co., 16 F.3d 12, 14 (1st

Cir. 1994) (per curiam) (same, in respect to the granting or

denial of a motion to extend the time for filing a notice of

appeal). We remain mindful, however, that a court invariably

abuses its discretion if it predicates a discretionary decision

on a mistaken view of the law. See Waste Mgmt. Holdings, Inc.

v. Mowbray, ___ F.3d ___, ___ (1st Cir. 2000) [No. 99-8015, slip

op. at 13]; United States v. Synder, 136 F.3d 65, 67 (1st Cir.

1998).

A. Leave to Amend.

3

The plaintiffs premise their claim that the district

court erred in failing to grant leave to amend on familiar

axioms. The Civil Rules declare that leave to amend "shall be

freely given when justice so requires." Fed. R. Civ. P. 15(a).

Under this mandate, a denial of leave to amend cannot be founded

on judicial whim. See Foman v. Davis, 371 U.S. 178, 182 (1962).

"Unless there appears to be an adequate reason for the denial of

leave to amend (e.g., undue delay, bad faith, dilatory motive,

futility of amendment, prejudice), we will not affirm it."

Glassman v. Computervision Corp., 90 F.3d 617, 622 (1st Cir.

1996). The plaintiffs proceed to argue that none of these
4The reference to Rules 59 and 60 does not give succor to

the plaintiffs. They filed no motion at all within the ten-day

period allowed under Fed. R. Civ. P. 59(e), and they never moved

to set the judgment aside under Fed. R. Civ. P. 60(b). Thus,

their current argument can succeed only if no final judgment was

entered on June 1.

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exemplars applies in this instance and, therefore, the district

court's denial of their motion cannot be upheld.

This line of argument suffers from tunnel vision: it

overlooks the district court's determination that, at the time

the plaintiffs filed their motion, a final judgment already had

been entered. If this perception is correct, the district court

had no power to allow an amendment to the complaint because

there was no complaint left to amend. See Maldonado v.

Domínguez, 137 F.3d 1, 11 (1st Cir. 1998) ("[A] district court

cannot allow an amended pleading where a final judgment has been

rendered unless that judgment is first set aside or vacated

pursuant to Fed. R. Civ. P. 59 or 60.").4 The question, then,

is whether a final judgment in fact entered on June 1, 1999.

The plaintiffs suggest, without citation of relevant

authority, that the June 1 dismissal order somehow is deficient

because it fails to use the word "judgment." This suggestion

elevates form over substance, and we reject it out of hand. The

entry of judgment need not employ talismanic language nor use

any specific set of words. See Danzig v. Virgin Isle Hotel,
5In all events, the instant case does not implicate the

Third Circuit's approach to ambiguous dismissal orders. Here,

unlike in Borelli, the district court order expressly denied

leave to amend. No invitation reasonably could have been

implied in light of this explicit rejection.

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Inc., 278 F.2d 580, 582 (3d Cir. 1960); see also Fed. R. App. P.

4(a) (outlining the process for appealing from a "judgment or

order").

The plaintiffs also contend that the court's dismissal

of their action "without prejudice" stripped the dismissal order

of the requisite finality and necessarily encompassed an

opportunity to amend the complaint. This argument is not

constructed out of whole cloth; one circuit seems to view a

dismissal without prejudice as an implicit invitation to amend.

See Borelli v. City of Reading, 532 F.2d 950, 951 (3d Cir. 1976)

(per curiam). In that circuit, such an order is final and

appealable only if the plaintiff "cannot amend or declares his

intention to stand on his complaint." Id. at 952. This court,

however, has rejected that position.5 See Acevedo-Villalobos v.

Hernandez, 22 F.3d 384, 389 (1st Cir. 1994) (holding squarely

that a final, appealable judgment results whenever a district

court dismisses a complaint "without expressly granting the

plaintiff leave to amend"). In this circuit, the phrase

"without prejudice," when attached to a dismissal order, is not

to be read as an invitation to amend, but rather as a
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signification that the judgment does not preclude a subsequent

lawsuit on the same cause of action either in the rendering

court or in some other forum. If leave to amend is

contemplated, we require an express judicial statement to that

effect because doing so "avoids confusion over when a

plaintiff's right to amend a dismissed complaint terminates, the

order becomes final, and the time for appeal begins to run."

Id. at 388 (quoting Quartana v. Utterback, 789 F.2d 1297, 1300

(8th Cir. 1986)).

The plaintiffs' attempt to derive support for their

"without prejudice" argument from North Carolina National Bank

v. Montilla, 600 F.2d 333 (1st Cir. 1979) (per curiam), is

unavailing. There, the district court had dismissed a

counterclaim "without prejudice," stating that it could be

raised again during the course of the pending proceedings if new

evidence were adduced. See id. at 334. We held that this order

— like an order dismissing a complaint but expressly reserving

leave to amend — was not final for the purpose of conferring

appellate jurisdiction. See id. at 334-35. The crucial

distinction between the dismissal orders in Montilla and in the

case at bar is that the latter left no aspect of the litigation

pending and was therefore immediately appealable. See id. at

335 n.2 (specifically distinguishing "a dismissal 'without
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prejudice' that is nevertheless a final order because the

litigation is entirely terminated").

The plaintiffs' reliance on Sandul v. Larion, 119 F.3d

1250 (6th Cir. 1997), likewise misses the mark. In Sandul, the

district court entered summary judgment against the plaintiff on

all except one of his claims (which it dismissed without

prejudice). See id. at 1253. The Sixth Circuit ruled that

Sandul could not appeal the dismissal of the last-mentioned

claim "because the dismissal was without prejudice." Id. at

1254. The court then stated that "[s]uch dismissal is not a

final judgment, and thus, no appeal is permitted." Id.

A leading treatise fittingly describes this aspect of

Sandul as "puzzling." 15A Charles Alan Wright et al., Federal

Practice and Procedure § 3914.6, at 145 n.18 (2d ed. Supp.

2000). The quoted language cannot be taken literally, as such

a reading would contradict longstanding Supreme Court precedent.

See United States v. Wallace & Tiernan Co., 336 U.S. 793, 795

n.1 (1949) ("That the dismissal was without prejudice to filing

another suit does not make the cause unappealable, for denial of

relief and dismissal of the case ended this suit so far as the

District Court was concerned."). There is another possible

explanation. In support of its pronouncement, the Sandul court

cited Laczay v. Ross Adhesives, 855 F.2d 351 (6th Cir. 1988) —
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a case holding that no appeal can be taken from a voluntary

dismissal without prejudice. See id. at 354. If Sandul turned

on voluntariness (a fact that is not clear from the opinion), it

is of no help to the plaintiffs in the case at hand. If,

however, Sandul actually stands for the proposition that

dismissals without prejudice are per se unappealable, we are

bound not only by Wallace & Tiernan but also by applicable First

Circuit precedent to reject it. See, e.g., Pratt v. United

States, 129 F.3d 54, 57-58 (1st Cir. 1997) ("Appellate courts

routinely exercise jurisdiction over claims dismissed without

prejudice when the dismissal contains sufficient indicia of

finality.").

To sum up, the district court's memorandum decision,

echoing the judge's earlier comments from the bench, slammed the

door shut on the possibility of future amendments to the

complaint. Given the court's express rejection of the

plaintiffs' offer to assemble a further amended complaint, it is

difficult to imagine how the point could have been put more

clearly. And apart from the flawed arguments discussed above,

the plaintiffs make no other challenge to either the form or the

sufficiency of the judgment. Nor could they: the dismissal

order was set forth on a separate document and duly docketed in

conformity with the applicable provisions of the Civil Rules.
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See Fed. R. Civ. P. 58, 79. In our view, a final judgment

occurs where, as here, an action is dismissed, leave to amend is

explicitly denied, and the order is embodied in a separate

document. See 15A Wright et al., supra, § 3914.1, at 494 (2d

ed. 1992). Because final judgment entered in this case on June

1, 1999, the district court correctly perceived that it lacked

jurisdiction to permit the filing of an amended complaint on

June 28.

B. Extension of Time.

In the federal system, a notice of appeal from the

district court to the court of appeals must be filed "within 30

days after the judgment or order appealed from is entered."

Fed. R. App. P. 4(a)(1)(A); accord 28 U.S.C. § 2107(a). This

temporal stricture is mandatory and jurisdictional. See Scola

v. Beaulieu Wielsbeke, N.V., 131 F.3d 1073, 1073-74 (1st Cir.

1997). There is, however, an escape hatch: on motion filed

within thirty days after the time prescribed by Rule 4(a)

expires, the district court may extend the time for filing a

notice of appeal so long as the movant demonstrates either good

cause or excusable neglect. See Fed. R. App. P. 4(a)(5).

Final judgment entered in this case on June 1, 1999.

The plaintiffs filed their motion to extend the time to appeal

from that judgment fifty-five days thereafter, and thus came
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within the window of opportunity framed by Rule 4(a)(5). But

the district court dashed their hopes, finding that their

tardiness was not a product of either good cause or excusable

neglect.

On appeal, the plaintiffs base their challenge to this

finding principally on two circumstances. First, they maintain

that the lower court's June 1 decision and order, taken

together, were ambiguous as to the possibility of subsequent

amendment. Second, they allege that one of their attorneys

telephoned the district court clerk's office on June 4 to ask

whether judgment had been entered on the docket and that the

(unidentified) person with whom he conversed responded that it

had not.

The plaintiffs' effort to invoke the "good cause"

exception need not detain us. The reference to "good cause" was

added in 1979. See Fed. R. App. P. 4 advisory committee's note.

The drafters augmented the rule to take account of a narrow

class of cases in which a traditional "excusable neglect"

analysis would be inapposite. See Pontarelli v. Stone, 930 F.2d

104, 109-11 (1st Cir. 1991) (discussing purpose of incremental

"good cause" standard). An illustrative case is Scarpa v.

Murphy, 782 F.2d 300 (1st Cir. 1986) — a case in which the

putative appellant's tardiness in filing a notice of appeal
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resulted entirely from external causes. See id. at 301. In

such a situation, there is no neglect (and, thus, nothing to

excuse). In contrast, where there are no forces beyond the

control of the would-be appellant that prevent him from taking

timely steps to preserve his rights, "good cause" has no

applicability and an extension of the time for appealing can be

justified only by a showing of excusable neglect. See VirellaNieves v. Briggs & Stratton Corp., 53 F.3d 451, 453-54 (1st Cir.

1995).

The case at hand does not fit within the isthmian

confines of the "good cause" rubric. Even were we to assume

(counterfactually) that the district court's decision was

unclear as to its finality, the clerk also entered an

unambiguous "[c]ase closed" notation on the docket, and the

plaintiffs could have discovered this telltale simply by

checking the docket in person or on-line at any time thereafter.

We previously have held that reliance on telephonic inquiries to

the clerk's office, without more, cannot constitute good cause.

See id.; cf. Kelley v. NLRB, 79 F.3d 1238, 1249 (1st Cir. 1996)

("We think it plain that an attorney's reliance on oral

information, provided over the telephone and by a low-level

employee, is not reasonable."). We unhesitatingly reiterate

that sensible holding today.
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This brings us to the crux of the plaintiffs' argument:

their claim of excusable neglect. In Pioneer Investment

Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S.

380 (1993), the Court explained that such determinations are

equitable in nature. See id. at 395. Accordingly, an inquiring

court must "tak[e] account of all relevant circumstances

surrounding the [movant's] omission," including "the danger of

prejudice to the [non-movant], the length of the delay and its

potential impact on judicial proceedings, the reason for the

delay, including whether it was within the reasonable control of

the movant, and whether the movant acted in good faith." Id.

Mere "inadvertence, ignorance of the rules, or mistakes

construing the rules do not usually constitute 'excusable'

neglect." Id. at 392. Rather, the would-be appellant must

demonstrate unique or extraordinary circumstances. See Gochis,

16 F.3d at 14.

Refined to bare essence, the plaintiffs hinge their

claim of excusable neglect on the notion that they plausibly

misconstrued the June 1 dismissal order. We do not gainsay the

possibility that a plausible misconstruction of a court order

may on rare occasions meet the requirements for excusable

neglect. See Lorenzen v. Employees Retirement Plan of the

Sperry & Hutchinson Co., 896 F.2d 228, 232-34 (7th Cir. 1990)
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(explaining that a plausible misconstruction of the law or rules

can amount to excusable neglect). Here, however, the

plaintiffs' professed reading of the dismissal order was wholly

implausible. The memorandum decision that accompanied the

dismissal order explicitly rejected the plaintiffs' offer to

amend their complaint anew and explained in the most transparent

of terms the court's intention to act with "finality in this

case." A misunderstanding that occurs because a party (or his

counsel) elects to read the clear, unambiguous terms of a

judicial decree through rose-colored glasses cannot constitute

excusable neglect. See Advanced Estimating Sys., Inc. v. Riney,

130 F.3d 996, 998 (11th Cir. 1997) (holding that an attorney's

misreading of the plain language of a rule cannot constitute

excusable neglect).

The other circumstances to which the plaintiffs allude

likewise fail sufficiently to distinguish their case from the

mine-run. Because we already have mentioned most of these

circumstances, we will be brief. The plaintiffs' reliance on a

telephonic inquiry, in lieu of checking the docket, constituted

neglect — but not excusable neglect. Their assertion that the

decision and order were misleading when read together represents

a triumph of hope over reason. The fact that the district

court, by dismissing the action "without prejudice," left open
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the possibility of another suit did not create any legitimate

confusion as to the finality of its judgment in this case. See

Wallace & Tiernan, 336 U.S. at 794 n.1. Against this backdrop,

we cannot fault the district court's discretionary decision to

deny the motion for extended time to appeal. See Norgaard v.

DePuy Orthopaedics, Inc., 121 F.3d 1074, 1075 (7th Cir. 1997)

(holding that "[i]gnorance of the Supreme Court's docket,

although 'neglect,' is not 'excusable'"); Joslin v. Wechsler (In

re Wechsler), 246 B.R. 490, 495 (S.D.N.Y. 2000) (affirming a

bankruptcy court's finding of no excusable neglect where the

party "failed to check the docket for weeks"); E.I. DuPont

DeNemours & Co. v. United States, 15 F. Supp. 2d 859, 861 (Ct.

Int'l Trade 1998) (holding that "reliance on legal advice of the

clerk's office or counsel's misinterpretation of the law" is not

excusable neglect); cf. Mennen Co. v. Gillette Co., 719 F.2d

568, 570 (2d Cir. 1983) (finding excusable neglect where the

clerk violated a direct order of the court, relied upon by the

would-be appellant, to give notice of the entry of judgment).

We need go no further. Because the plaintiffs' failure

to file a timely notice of appeal was not excused by any

extraordinary circumstances, the district court did not abuse

its discretion in denying their motion for an extension of time.
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Affirmed.