Amy Weber v. Frances McGrogan

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 16-4379
______________
AMY WEBER, Individually,
and as Parent, Natural Guardian
and Next Friend on behalf of K.A., a Minor
v.
FRANCES A. MCGROGAN, Individually and as a STATE
actor Judge for the Bergen County Family Court; PETER J.
MELCHIONNE, individually and as a STATE actor Judge
for the Bergen County Family Court; KENNETH J.
SLOMIENSKI, individually and as a STATE actor Judge for
the Bergen County Family Court; GARY N. WILCOX,
individually and as a STATE actor Judge for the Bergen
County Family Court; BONNIE J. MIZDOL, individually and
as a STATE actor Judge for the Bergen County Family Court;
PETER DOYNE, individually and as a STATE actor Judge
for the Bergen County Family Court; MARCELLE NICOLE,
individually and as a STATE actor Law Clerk for the Bergen
County Family Court; GOVENOR CHRIS CHRISTIE,
individually and as STATE actor Governor; SENTATOR
ROBERT MENENDEZ, individually and as STATE actor
Senator; SENATOR NICHOLAS SACCO, individually and
as STATE actor Senator; STATE OF NEW JERSEY;
BERGEN COUNTY FAMILY COURT OF THE
SUPERIOR COURT OF NEW JERSEY; ANTHONY
D'URSO; JOAN GLAESER; BRETT BILLER; RICHARD
COCO; KYONGOK KIM; JULIA DEBELLIS; NINA
AGRAWAL; JEMOUR MADDUX; SARA
MICHAELOWLSKI; PATRICIA SERMABIKIAN;
FAMILIES FIRST; VICTORIA MADDEN; CHILDRENS
AIDS AND FAMILY SERVICES; RACHEL POLAN;
PATRICIA KRYGER; MARIA MAHTANI; CLAIRE
ABEL; DIVISION OF CHILD PROTECTION AND
PERMANENCY f/k/a DYFS; ATTORNEY GENERAL
NEW JERSEY; STATE OF NEW JERSEY BOARD OF
ETHICS; MONIQUE D'ERRICO, Esq.; MARY ZEC, Esq.;
CARYN STALTER, Esq.; YLLINI TORRES; DOLORES
COUNNEELY; RUTH BAZZANO; LOURDES NUNEZ;
DANILLE GONZALEZ; LUIS PADIERNA; CYNTHIA
MCWHITE; VICTORIA SUMMERS; JOAN TAKACS;
MARTHA VAZQUEZ; MARIA GONZALEZ; NICOLLE
MILLER; HAYDEE ZAMORA-DALTON; KELLY
NESTOR; LUKE DRUMMOND; MARISOL NARANJO;
JESSICA MULLIGAN; BERGEN COUNTY DIVISION OF
FAMILY GUIDANCE; JUDITH LEGGET; RESSA
VILLANI; DENNIS CHETEYAN; DR. DANIEL
BROMBERG; DR. DONNA LOBIONDO; SAMSIRI
SOSTRE; VIVIAN CHERN SHNADIMAN; ROBERT
LATIMER; DR. HAROLD GOLDSTEIN; JACQUELINE
KIM SZABO; MICHAEL LAMOLINO, Esq.; ROBYN
VEASEY; ALL ABOUT ME LEARNING CENTER;
MICHAEL CULVER; CONNIE CULVER; DOES #1 THRU
33; AUDREY HEPBURN CHILDREN'S HOUSE; KEYSHA
TYSON; KEITH J. YONOS, Real Party of Interest
Amy Weber,
Appellant
2
______________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2-14-cv-07340)
District Judge: Hon. Claire C. Cecchi
______________
Argued June 5, 2019
Before: JORDAN, BIBAS, and MATEY, Circuit Judges.
(Filed: September 12, 2019)
Christopher T. Zirpoli, Esq. [ARGUED]
Covington & Burling LLP
One CityCenter
850 Tenth Street, NW
Washington, DC 20001
Court Appointed Amicus Curiae on behalf of Appellant
Gurbir S. Grewal
Thomas P. Lihan, Esq.
Michael R. Sarno, Esq. [ARGUED]
Office of the Attorney General
Division of Law
25 Market Street
Richard J. Hughes Justice Complex
Trenton, New Jersey 08625
Attorneys for Appellees Frances A. McGrogan,
individually and as a STATE Judge for the Bergen
County Family Court
3
Daniel R. Esposito, Esq.
Buckly Theroux Kline
707 State Road
Princeton, NJ 08540
Attorney for Appellees Audrey Hepburn Children’s
House, Brett Biller, Richard Coco, Anthony D’Urso,
Joan Glaeser, Kyongok Kim, Jemour Maddux, Sara
Michaelowlski, Patricia Sermabikian
Robert E. Levy, Esq.
Scarinci & Hollenbeck
1100 Valley Brook Avenue
P.O. Box 790
Lyndhurst, NJ 07071
Attorney for Appellee Senator Robert Menendez,
individually and as State actor Senator
Cyndee L. Allert, Esq.
Elizabeth A. Farrell, Esq.
Dughi Hewit & Domalewski
340 North Avenue East
Suite 2
Cranford, NJ 07016
Attorneys for Appellees Julia DeBellis, Nina Agrawal,
Robert Latimer
Paul J. Soderman, Esq.
Suite 202
157 Eagle Rock Avenue
Roseland, NJ 07068
Attorney for Appellee Families First, Victoria Madden
Darrell M. Felsenstein, Esq.
4
Wells Jaworski & Lebman
12 Route 17 North
P.O. Box 1827
Paramus, NJ 07653
Attorney for Appellees Childrens Aids and Family
Services, Rachel Polan, Patricia Kryger, Maria
Mahtani, Claire Abel
Julien X. Neals, Esq.
Robert N. Schwartz, Esq.
Office of Bergen County Counsel
One Bergen County Plaza
Room 580
Hackensack, NJ 07601
Attorneys for Bergen County Division of Family
Guidance, Judith Legget
William T. McGloin, Esq.
Connell Foley
56 Livingston Avenue
Roseland, NJ 07068
Attorney for Dr. Daniel Bromberg, Dr. Donna
LoBiondo
William J. Buckley, Esq.
Thomas N. Gamarello, Esq.
Schenck Price Smith & King
220 Park Avenue
P.O. Box 991
Florham Park, NJ 07932
Attorneys for Vivian Chern Shnadiman
Melissa J. Brown, Esq.
5
Marks O’Neill O’Brien Doherty & Kelly
535 Route 38 East
Suite 501
Cherry Hill, NJ 08002
Attorney for Jacqueline Kim Szabo
____________
OPINION
____________
MATEY, Circuit Judge.
Sometimes a difficult journey produces fresh insights,
like when the “[l]ongest way round is the shortest way home.”1
In this appeal, Amy Weber argues persuasively that her
complaint was erroneously dismissed. But rather than decide
that question, we must dismiss the appeal for lack of a final
order. That result is regrettable, but not unexpected, as finality
is a necessary predicate to appellate review. Indeed, an epic
poem of problems often follows when charting any other
course. Our opinion seeks to eliminate some of that confusion
while reminding litigants and courts that following the rules
ensures predictable outcomes and effective results.
1
JAMES JOYCE, ULYSSES 309 (Gabler ed., Random
House, Inc. 1986) (1922).
6
I. The Proceedings Before the District Court
A. Weber Begins Her Odyssey
We begin our journey in 2014 when Appellant Amy
Weber sued, pro se, nearly sixty defendants in the United
States District Court for the District of New Jersey.2 Weber’s
complaint stems largely from her experiences dealing with
New Jersey public officials during a child custody matter, a
controversy that involved litigation in the New Jersey state
courts. When she filed her federal complaint, Weber was also
appealing an adverse custody decision to the Appellate
Division of the New Jersey Superior Court. The specter of this
seemingly related state court action caused the District Court
to consider the prudential limitations on subject-matter
jurisdiction in the abstention doctrines. Following briefing, the
Magistrate Judge issued a Report and Recommendation that
Weber’s claims be dismissed under the principles of Rooker-
Feldman or Younger.3 And that is where the story begins its
journey into mystery.
2
We thank the court-appointed amicus curiae appearing
on behalf of the appellant for his able assistance.
3
Both doctrines are narrow prudential exceptions to
federal jurisdiction. Rooker-Feldman instructs courts to refrain
from matters inviting direct review of state-court judgments.
See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S.
280, 284 (2005). Younger abstention seeks to avoid
interference with ongoing state proceedings. See Sprint
Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 77–78 (2013).
7
B. Between Scylla and Charybdis
The District Court issued a Memorandum Opinion
adopting the Report and Recommendation, accompanied by an
order dismissing Weber’s complaint without prejudice and
permitting her thirty days to amend. In a letter dated June 27,
2016, Weber filed a notice of appeal with this Court. That
notice prompted a July 21, 2016 letter by our Circuit Clerk
advising Weber that her appeal “will be submitted to a panel of
this Court for possible dismissal due to a jurisdictional defect”
because her complaint had been dismissed by the District Court
without prejudice and thus “may not be reviewable at this time
by a court of appeals.” The Clerk’s letter enclosed a copy of 28
U.S.C. § 1291 and summarized the holding in Borelli v. City of
Reading, 532 F.2d 950 (3d Cir. 1976) (per curiam), stating that,
“to be final, order of dismissal must be with prejudice; order
dismissing without prejudice contemplates leave to amend and
is not appealable unless plaintiff elects to stand on
complaint . . . .” Multiple defendants echoed the same
jurisdictional concern in contemporaneous letters to this Court.
In response, Weber wrote to the District Court advising
that she had “taken [her] case into appeal” and “kindly
requesting for your final court order regarding my case . . . to
allow me to proceed accordingly.” Receiving no response,
Weber wrote to this Court and asked to withdraw her appeal.
The Clerk of the Court advised Weber in a new letter that if she
wished to withdraw her appeal, she must file a motion or the
case would move forward.
And so Weber moved to dismiss her appeal to prevent,
she wrote, “more ‘jurisdictional defects.’” This Court granted
her motion.
8
C. Flight from the Cave of Polyphemus
With Weber’s appeal dismissed, some defendants began
to wonder where the case now stood. So, on November 29,
2016, counsel for a few wrote the District Court that Weber’s
thirty-day period to amend her complaint following the June 9
dismissal without prejudice “has long passed” and that
defendants “seek dismissal with prejudice.”4 The next day, the
District Court made an electronic entry on the docket that
stated: “Civil Case Terminated. (Clerk’s Note: Please see
Order Dkt. Entry #119) (sr, ) (Entered: 11/30/2016)[.]”5
Believing herself free from the jurisdictional defects of her
earlier appeal, Weber filed a new notice of appeal on December
15, 2016. That appeal is before us today and turns on a
surprisingly elusive question: is there a final order of the
District Court dismissing Weber’s complaint?
II. There Is No Appellate Jurisdiction
Absent A Final Order
A. The Statutory Framework
As with every case, we begin by assessing our
jurisdiction. Congress has given the federal circuit courts
4
The letter referenced a phone call stating “[m]y office
contacted Your Honor’s chambers and was advised that Your
Honor would not require a formal motion.” Counsel
accompanied a draft order of dismissal with prejudice for the
District Court’s convenience.
5
Docket entry “#119” referred to the June 9 order that
dismissed the complaint without prejudice.
9
jurisdiction over “appeals from all final decisions of the district
courts[.]” 28 U.S.C. § 1291. A “final decision” is “one which
ends the litigation on the merits and leaves nothing for the court
to do but execute the judgment.” Catlin v. United States, 324
U.S. 229, 233 (1945). The requirement of finality is often
described as serving “the important purpose of promoting
efficient judicial administration.” Firestone Tire & Rubber Co.
v. Risjord, 449 U.S. 368, 374 (1981). A final decision or
judgment is “[a] court’s last action that settles the rights of the
parties and disposes of all issues in controversy, except for . . .
enforcement of the judgment.” Final Judgment, BLACK’S LAW
DICTIONARY (10th ed. 2014). That may well mean a party must
delay appellate review; indeed, “the possibility that a ruling
may be erroneous and may impose additional litigation
expense is not sufficient to set aside the finality requirement
imposed by Congress.” Richardson-Merrell, Inc. v. Koller, 472
U.S. 424, 436 (1985). The benefits of certainty are superior to
the costs, and courts “routinely require litigants to wait until
after final judgment to vindicate valuable rights, including
rights central to our adversarial system.” Mohawk Indus., Inc.
v. Carpenter, 558 U.S. 100, 108–09 (2009). Both the command
of Congress and the guidance of the Supreme Court direct “a
healthy respect for the virtues of the final-judgment rule.” Id.
at 106.
B. Weber’s Arguments
Recall that while Weber filed two separate notices of
appeal, only the second is before us now. So, we must consider
what, if any, final order supports that appeal. Weber offers two
possibilities: first, the November docket entry “terminating”
her case, and second, the June order of dismissal without
prejudice. We consider each, finding the first ends up running
10
aground on the text of the Federal Rules, while the second asks
us to stray too far from the route prescribed by Congress.
1. Utility Events Are Not Orders
Weber first argues the District Court’s November 30,
2016 docket entry constituted a final appealable order, making
her second notice of appeal timely. Our opinion in Witasick v.
Minnesota Mutual Life Insurance Co., reasons otherwise. 803
F.3d 184 (3d Cir. 2015). In Witasick, we explained the
differences between the three distinct types of case-related
electronic entries on a federal case docket: text orders, utility
events, and minute entries.6 Each has a distinct purpose. First,
a text order “as its name suggests, is an order of the court, with
specific text granting, denying, or otherwise resolving a motion
or, ultimately, a case” including, among other purposes, “to set
a hearing, order briefing” and “to rule on substantive motions
. . . .” Witasick, 803 F.3d at 189. Text orders are most
significant because they “contain an electronic signature of a
judge.” Id. By contrast, a “‘utility event’ is an entry which
records an event or action in the life of a case.” Id. And mere
“minute entries reflect time spent in court[,]” including a case
management conference or contempt hearing. Id.
Weber tries to distinguish Witasick because the
November 30 docket entry includes the note “(Clerk’s Note:
6
The “docket” is “[a] formal record in which a judge or
court clerk briefly notes all the proceedings and filings in a
court case.” Docket, BLACK’S LAW DICTIONARY (10th ed.
2014).
11
Please see Order Dkt. Entry #119),” a reference to the June 9
order of dismissal without prejudice. That reference, Weber
reasons, eliminates any doubt about the entry’s meaning.
Perhaps, but it’s not a final order. Replacing the clarity of a
signed, labeled order with inferences drawn from other entries
is the very danger we sought to avoid in Witasick.7 These
distinctions matter because as we noted in Witasick, “utility
events . . . are not orders of the district court nor are they signed
by a judge. As such, they cannot serve as a foundation for an
appeal.” Id. at 189. The November 30 docket entry is a utility
event, and Weber cannot rely on the entry.
2. “Standing on the Complaint”
Weber also argues that the notice filed in December was
a timely appeal from the District Court’s June 9 order
dismissing her complaint without prejudice. The problem with
that theory seems obvious: a dismissal without prejudice and
with leave to amend isn’t a final order. But it turns out things
are somewhat murky because courts have found opportunities
to stray from the plain meaning of finality. From time to time,
and usually citing noble goals, circuit courts have side-stepped
the finality requirement of § 1291, relying on the oft-quoted
7
A comparison with the June 9, 2016 electronic entry
corresponding to the order dismissing Weber’s complaint
without prejudice highlights the difference. That entry reads:
“ORDER dismissing Plaintiff’s Complaint w/out prejudice,
and Plaintiff shall have 30 days in which to file an Amended
Complaint that cures the deficiencies set forth by the Court in
its corresponding Opinion. Signed by Judge Claire C. Cecchi
on 6/9/16. (sr, ) Modified on 6/13/2016 (jl). (Entered:
06/10/2016).” (D.C. ECF No. 119.)
12
preference for a “practical rather than a technical construction”
of the law. Caver v. City of Trenton, 420 F.3d 243, 261 (3d Cir.
2005) (quoting Cohen v. Beneficial Indus. Loan Corp., 337
U.S. 541, 546 (1949)). And so, exceptions sprouted like
dandelions, including “practical finality,” “effectively out of
court,” “pragmatic finality,” “marginal finality,” and even the
“death-knell” doctrine. See 19 Moore’s Federal Practice, §§
201.11, 202.08–10 (Matthew Bender 3d Ed.). Not surprisingly,
“[t]he law of federal appellate jurisdiction is widely regarded
as a mess.” Bryan Lammon, Finality, Appealability, and the
Scope of Interlocutory Review, 93 WASH. L. REV. 1809, 1810
(2018).
Seizing on this opening, Weber explains that the June 9
order dismissing her complaint without prejudice could not
become final until the expiration of the thirty-day period for
her to amend. So, she argues, the June 9 order “matured into a
final decision” on July 9, 2016. (Amicus Br. at 21.) And her
argument isn’t novel, because our circuit has created the “stand
on the complaint” doctrine, to find or foreclose appellate
jurisdiction in cases involving a complaint dismissed without
prejudice and without a final order from the district court. Such
dismissals should, under § 1291, fail the finality requirement.
The “stand on the complaint” doctrine, and its offspring, hold
otherwise. Which brings us to Borelli v. City of Reading, the
case cited in the Circuit Clerk’s July 26, 2016 letter.
Borelli involved a dispute over a redevelopment project.
Both sides moved for summary judgment. Borelli, 532 F.2d at
951. Based on the defendants’ motion, the district court
determined that the plaintiff lacked standing. Id. The court thus
dismissed the complaint without prejudice, and the plaintiff
appealed. Id. In a short per curiam opinion dismissing the
13
matter for lack of jurisdiction, we recited the basic rule that “an
order which dismisses a complaint without prejudice is neither
final nor appealable because the deficiency may be corrected
by the plaintiff without affecting the cause of action.” Id. But
then, we added the comment that “[o]nly if the plaintiff cannot
amend or declares his intention to stand on his complaint does
the order become final and appealable.” Id. at 951–52
(emphasis added). Borelli explained that when a plaintiff
prefers not to amend, he “may file an appropriate notice with
the district court asserting his intent to stand on the complaint,
at which time an order to dismiss the action would be
appropriate.” Id. at 951 n.1. That statement is not remarkable;
a plaintiff is always free to decline an invitation to amend a
seemingly defective complaint and, instead, seek a final
appealable order.8
Nothing in Borelli suggests an exception to the statutory
requirement of finality, nor, of course, would such a re-writing
of a statute be possible. Yet, in time, our decisions have
dropped the important second step of Borelli—seeking and
8
The phrase “stand on the complaint” traces to at least
the early twentieth century where the Supreme Court, while
summarizing the procedural posture of a case, noted instances
when a plaintiff decided to “stand on the complaint” rather than
amend. See, e.g., United States v. John Barth Co., 279 U.S.
370, 373 (1929); Schodde v. Twin Falls Land & Water Co., 224
U.S. 107, 114 (1912); N. Pac. Ry. Co. v. Slaght, 205 U.S. 122,
129 (1907); Bockfinger v. Foster, 190 U.S. 116, 119 (1903);
Filhiol v. Maurice, 185 U.S. 108, 108 (1902); Union
Refrigerator Transit Co. v. Lynch, 177 U.S. 149, 151 (1900).
But those cases came with a final order of dismissal.
14
receiving a final order—and instead allowed the mere intent to
forego further amendment to satisfy finality. See Berke v.
Bloch, 242 F.3d 131, 135 (3d Cir. 2001). As might be expected
from such a protean appellate standard, basic questions on the
contours of this doctrine are elusive, leading us to concede that
“[w]e cannot discern from our prior cases a clear rule for
determining when a party has elected to stand on his or her
complaint.” Hagan v. Rogers, 570 F.3d 146, 151 (3d Cir.
2009). As Weber seeks to rely on, and even expand this
theory,9 we organize our existing rules and decisions before
reaching her arguments.
a. Intent-Based Exceptions Replacing Final Orders
Our decision in Shapiro v. UJB Fin. Corp., began the
loosening of the final order rule that Borelli had reinforced. 964
F.2d 272 (3d Cir. 1992). In Shapiro, the district court invited
the plaintiffs to amend their complaint, warning that if nothing
arrived in thirty days the court would consider dismissal. Id. at
278. The plaintiffs advised the district court they would not
amend, but the court never entered a final order. Id. So, citing
Borelli, the defendants “contend[ed] that this was not enough.
They maintain[ed] that [the Court] lack[ed] jurisdiction
because plaintiffs failed to obtain an explicit dismissal with
prejudice.” Id. We disagreed, reasoning “[i]t seems clear that
the district court planned to dismiss with prejudice any claims
not amended. Requiring plaintiffs to return to the district court
now would be a wasteful elevation of form over substance.” Id.Shapiro thus jettisoned the second prong of Borelli and can be
9
While Weber does not invoke the doctrine by name,
she still advocates for use of its underlying principle—for us to
find appellate jurisdiction from a non-final order.
15
read as collapsing the jurisdictional inquiry into a single
question: whether a plaintiff has “formally” stood on the
complaint. Id.Shortly after, the test relaxed again in Batoff v. State
Farm Ins. Co., 977 F.2d 848 (3d Cir. 1992). There, the district
court dismissed the complaint and allowed thirty days to
amend. Id. at 851 n.5. The plaintiff not only declined to amend
but declined to file anything with the district court. Id. Rather,
the plaintiff filed a notice of appeal before the thirty days
elapsed. Id. We concluded that was enough under Borelli and
Shapiro, finding that “by failing to move to amend within the
30 days granted by the court, [the plaintiff] elected to stand on
his complaint.” Id.Shapiro and Batoff do not rest easily alongside Borelli’s
simple statement that a clear and unequivocal declaration of
intent to skip amendment and seek an order of dismissal satisfy
§ 1291. Our decision in In re Westinghouse Securities
Litigation, 90 F.3d 696 (3d Cir. 1996), eases some of that
tension. There, following a dismissal without prejudice, the
plaintiffs filed a “Notice of Intention to Stand on Second
Consolidated Amended Class Action Complaint,” explaining
that after “carefully weigh[ing] the merits of repleading against
seeking immediate appellate review” they “respectfully give
notice of their intention to stand on the Complaint.” Id. at 703.
Synthesizing Borelli and Shapiro, we held that “when plaintiffs
elected to stand on the second amended complaint rather than
replead . . . the remaining claims were dismissed with
prejudice, and the case was closed in the district court[,]”
leaving “no doubt that the district court’s dismissal of the case
with prejudice was a reviewable, final order.” Id. at 705.
16
Lack of doubt, therefore, emerges as the key to finding
finality through the “stand on the complaint” doctrine.
Equating finality with clear intent also grounds our decisions
inferring a plaintiff’s decision to “stand on the complaint”
based on inaction after entry of a self-executing order. For
example, in Berke v. Bloch, the district court “closed” the case
on the docket, but dismissed “without prejudice to the right,
upon good cause shown, within 60 days, to reopen the action”
if the parties could not reach a settlement agreement. 242 F.3d
at 134–36. When the plaintiffs filed an appeal more than thirty
days after the sixty-day period to reopen the case had run, we
found the appeal untimely because plaintiffs’ failure to act is
“akin to standing on the[] complaint.” Id. at 135. Berke
reasoned that a non-final dismissal becomes final when it
provides clear instructions that the order will “ripen[]” into a
final order on the defined date if a plaintiff takes no action in
response. Id. at 135.
With these decisions as our guide, two principles
relevant to Weber’s appeal emerge. First, as in Berke, a “self-
effectuating” order is one that directs a party to take some
action to cure a defective complaint by a defined date and
provides express notice that it will then automatically produce
a final order of dismissal when the time to amend runs out.
Second, as in Westinghouse, a clear and unequivocal intent to
decline amendment and immediately appeal that leaves no
doubt or ambiguity can allow us to exercise jurisdiction.
Following these decisions as we must, we apply each to
Weber’s actions and conclude that we do not have appellate
jurisdiction.
17
b. The Stand on the Complaint Doctrine
Does Not Aid Weber’s Appeal
Unlike our prior cases, Weber’s actions in the District
Court leave ample room for doubt. In contrast to Berke, the
District Court’s June 9 dismissal without prejudice was not
“self-executing”; while it provided thirty days’ leave to file an
amended complaint, it lacked any language converting the
dismissal to a final order at the end of the period. And unlike
Westinghouse, Weber did not submit a clear and unequivocal
declaration of intent to “stand on her complaint.” True, when
warned by the Circuit Clerk that her appeal could be dismissed
for lack of jurisdiction, she appropriately notified the District
Court of her plan to “take[] [her] case into appeal” and sought
a final order. Had the District Court issued an order at that time,
the judgment would be final under § 1291 and we would have
jurisdiction over the appeal. See In re Westinghouse Sec. Litig.,
90 F.3d at 703–05. Instead, when Weber received no response,
she moved to withdraw her appeal, perhaps fearing dismissal
on jurisdictional grounds as the Circuit Clerk warned.
Appellees were similarly concerned about the status of the
action, as they too sought a final order from the District Court.
Perhaps our own case law on the final order requirement of
§ 1291 abetted this ambiguity and the parties’ confusion. But
whatever our role, we remain bound by § 1291 not to accept
jurisdiction absent a final order under these circumstances.
Weber’s indecision does not show clear and unequivocal
intent, and the “stand on the complaint” doctrine cannot rescue
the lack of a final order given her ambiguous actions.10
10
This conclusion fits with the approach taken by some
circuits. In WMX Technologies, Inc. v. Miller, the Ninth Circuit
18
Even more to the point, our consideration of the “stand
on the complaint” doctrine highlights the difficulty of basing
appellate jurisdiction on deeds rather than words. We caution
against traveling this circuitous route mindful that unless
properly constrained, the “stand on the complaint” doctrine
will continue to lure courts away from § 1291. It is, and always
was, a narrow doctrine demanding sparing use under our duty
to comply with the congressional grant of jurisdiction and the
federal rules of procedure.11 Indeed, the only practice that
reviewed an appeal from a dismissal without prejudice with
thirty days’ leave to amend. 104 F.3d 1133 (9th Cir. 1997) (en
banc). The plaintiff “did not amend, did not tell the district
court that it would not do so, and did not obtain a final order of
dismissal. It simply appealed.” Id. at 1134. The court dismissed
the appeal for lack of jurisdiction, explaining “[w]e now
specifically rule that a plaintiff, who has been given leave to
amend, may not file a notice of appeal simply because he does
not choose to file an amended complaint. A further district
court determination must be obtained.” Id. at 1136; see also
Sapp v. City of Brooklyn Park, 825 F.3d 931, 934 (8th Cir.
2016) (“[A] plaintiff may not appeal the dismissal of a
complaint when the district court grants the plaintiff leave to
amend his pleading.”) (internal quotations omitted);
CompuServe Inc. v. Saperstein, 172 F.3d 47 (6th Cir. 1999)
(unpublished table decision) (citing Borelli and observing,
“[t]he law is clear when the district court expressly grants the
dismissed party leave to amend. In such situations the
dismissal is not final, and that order may not be appealed.”).
11
Take a party seeking to dismiss a claim pursuant to
Federal Rule of Civil Procedure 41(b) for failure to comply
19
avoids these perils comes from the guidance offered in Borelli
more than four decades ago:
Since it may be difficult to determine whether the
district court thought an amendment was
possible and whether the plaintiff is willing or
able to amend, we suggest that district judges
expressly state, where appropriate, that the
plaintiff has leave to amend within a specified
period of time, and that application for dismissal
of the action may be made if a timely amendment
is not forthcoming within that time. If the
plaintiff does not desire to amend, he may file an
appropriate notice with the district court
asserting his intent to stand on the complaint, at
which time an order to dismiss the action would
be appropriate.
with a court order. That is precisely the remedy sought by
defendants here in their November 29, 2016 correspondence to
the District Court. We have specified a rigorous six factor test
to determine whether to dismiss a case under Rule 41(b). See
Hildebrand v. Allegheny Cty., 923 F.3d 128, 132 (3d Cir.
2019). Indeed, in Hildebrand, we vacated the dismissal of a
suit after the docket idled for three years. Id. at 138. And the
District Court here would have needed to perform the same
analysis had Weber objected to a motion to dismiss with
prejudice. We use a similar multi-factor test to determine
whether we have jurisdiction from an appeal under the
collateral order doctrine. See Gillette v. Prosper, 858 F.3d 833,
839 (3d Cir. 2017). It is hard to reconcile our vigilant scrutiny
of final orders in these areas with our tolerance for non-final
dismissals.
20
Borelli, 532 F.2d at 951 n1. We reiterate that admonition today.
3. There Is No Separate Document Triggering
the Time to Appeal
Weber’s desire to use the June 9 order, and the thirty
days for amendment that followed, encounters a separate
problem under the Federal Rules. Some background on the
calculation of the time to appeal is helpful. Federal Rule of
Civil Procedure 79 requires docket entries for certain actions
including orders, verdicts, and judgments. Rule 58(b) requires
prompt entry of each because they start the clock for the filing
of an appeal. And Rule 58(a) requires a separate document for
final judgments. Federal Rule of Appellate Procedure
4(a)(1)(A) then sets out the time to appeal a civil matter,
generally thirty days after entry of the judgment or order. So,
what happens when, as here, there is no separate document?
Federal Rule of Civil Procedure 58(c)(2)(B) steps in to enter
judgment—and begin the time to appeal—when 150 days have
run from the docket entry. Civil Rule 58 and Appellate Rule 4
“are designed to work in conjunction . . . to ensure that appeal
time does not linger on indefinitely.” FED. R. CIV. P. 58
advisory committee’s note to 2002 amendment.
Recall Weber’s argument that the June 9 order “matured
into a final decision” one month later. (Amicus Br. at 21.) But
as we already know, the District Court entered nothing on the
docket on that date. Lacking the required separate document
under 58(c)(2), she turns to Rule 58(c)(2)(B) to give her
another 150 days, which, combined with the thirty days to file
her appeal, makes her December 15 notice timely. This
argument, however, invites us to add pages to procedural
21
treatises by introducing a new doctrinal exception. We
conclude instead that the plain text of Rule 58 controls.
Judgment arises under Rule 58(c)(2)(B) when “150
days have run from the entry in the civil docket.” FED. R. CIV.
P. 58(c)(2)(B) (emphasis added). Simply put, the predicate
action thus required to begin the 150-day clock is an entry in
the civil docket. Even if the June 9 order could qualify, that
leaves Weber’s appeal a few days late under Federal Rule of
Appellate Procedure 4(a). Adding the extra thirty-day
amendment period would do the trick, but to allow Weber this
concession we would need to read the words “entry in the civil
docket” out of Rule 58. Doing so would ignore the text of the
rule and, soon enough, add fresh frustration to litigants and
courts. As there was no final order on July 9, and thus no
docket entry either, Rule 58 brings us no closer to the port of
jurisdiction.
III. Weber’s Case Remains Pending in the District Court
At long last, Weber finishes her odyssey like the fabled
hero: back where she began. She has a live action still pending
before the District Court. Sadly, all of this was avoidable
proving that “[t]he undesirability of useless delays in litigation
is more than offset by the hazards of confusion or
misunderstanding as to the time for appeal.” Jung v. K. & D.
Mining Co., 356 U.S. 335, 337 (1958). Our conclusion today
means that Weber can still appeal her case by filing a notice of
appeal after the District Court enters a final order. While both
parties invite us to tuck Weber’s case into one of our self-
created doctrines or slip it into a new, narrow exception, we
decline to depart from the requirements of the rules and the
statutes, confident that any efficiency gained today will drown
22
in a sea of ambiguity tomorrow. The need for restraint in
expanding exceptions to the rule of finality “has acquired
special force . . . with the enactment of legislation designating
rulemaking, ‘not expansion by court decision,’ as the preferred
means for determining [appealability].”12 Mohawk, 558 U.S. at
113 (quoting Swint v. Chambers Cty. Comm’n, 514 U.S. 35, 48
(1995)). Such an allowance by Congress “warrant[s] the
Judiciary’s full respect,” Id. at 114 (quoting Swint, 514 U.S. at
48), and we “resist[] efforts to stretch § 1291 to permit appeals
of right that would erode the finality principle and disserve its
objectives.” Microsoft Corp. v. Baker, 137 S. Ct. 1702, 1712
(2017). Frustrating as it may be, Weber’s appeal is simply
premature.
Weber brings her appeal from a non-final order of the
District Court. Because we are without jurisdiction under 28
U.S.C. § 1291, we cannot consider other independent bases
raised by Appellees to affirm the District Court’s dismissal.
And though we harbor doubts about the District Court’s
dismissal under the Rooker-Feldman and Younger abstention
doctrines, this too we cannot consider. We will therefore
dismiss the appeal for lack of jurisdiction.13
12
Under 28 U.S.C. § 2072(c), the Supreme Court
possesses the delegated authority to prescribe rules of
procedure, including “rules that may define when a ruling of a
district court is final for the purposes of appeal under section
1291 of this title.”
13
None of this is to imply that Weber’s case has merit.
That determination awaits another day.
23