Dubicz v. Commonwealth Edison Co.

• Decision Date: 02 August 2004
• Docket Number: No. 03-3057.,No. 03-3384.,03-3057.,03-3384.
• Citation: 377 F.3d 787
• Parties: Dennis J. DUBICZ, Robert B. Magolan, and William Marsh, Plaintiffs-Appellants, v. COMMONWEALTH EDISON COMPANY, an Illinois corporation, Defendant-Appellee. Appeal of: Edward P. Anderlik, Donand J. Arendarczyk, Randy Bales, et al., Proposed Plaintiffs.
• Court: U.S. Court of Appeals — Seventh Circuit

377 F.3d 787

Dennis J. DUBICZ, Robert B. Magolan, and William Marsh, Plaintiffs-Appellants, v. COMMONWEALTH EDISON COMPANY, an Illinois corporation, Defendant-Appellee.

Appeal of: Edward P. Anderlik, Donand J. Arendarczyk, Randy Bales, et al., Proposed Plaintiffs.

No. 03-3057.

No. 03-3384.

United States Court of Appeals, Seventh Circuit.

Argued February 20, 2004.

Decided August 2, 2004.

Appeal from the United States District Court for the Northern District of Illinois, Kocoras, C.J Jerome R. Weitzel (argued), Kozacky & Associates, Chicago, IL, for Plaintiffs-Appellants.

Glenn D. Newman (argued), Tamra S. Domeyer (argued), Chicago, IL, for Defendant-Appellee.

Before FLAUM, Chief Judge, and BAUER and MANION, Circuit Judges.

MANION, Circuit Judge.

The appellants, current or retired employees of Commonwealth Edison Company ("ComEd"), appeal from a decision of the District Court for the Northern District of Illinois to deny their motion for leave to file a second amended complaint. Also at issue, however, is the jurisdiction of that court to consider the motion. For the reasons set forth below, we conclude that the district court had jurisdiction to consider the motion, but that under the unique circumstances of this case, it was an abuse of discretion to deny the appellants leave to file a second amended complaint.

I.

This case began as a pro se action by certain current or retired employees of ComEd. In a complaint filed with the District Court for the Northern District of Illinois, the initial plaintiffs (the "Cook Plaintiffs") alleged that ComEd discriminated against them on account of their age in relation to ComEd's pension plan (the "Plan").

The Cook Plaintiffs subsequently retained counsel and filed a first amended complaint. This complaint had six counts. In Count I, the Cook Plaintiffs alleged age discrimination and misrepresentation in relation to the Plan. In Counts II, III, and IV, individual plaintiffs raised allegations of age discrimination. In Count V the Cook Plaintiffs alleged that ComEd made material misrepresentations with respect to the Plan in violation of the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001, et seq. ("ERISA"). In Count VI, the Cook Plaintiffs alleged breach of contract resulting from material misrepresentations by ComEd with regard to the Plan.

ComEd moved to dismiss the complaint in its entirety for failure to state a claim and, with respect to Count V, for failure to plead a claim of fraud with particularity. On September 25, 2002, the district court issued a memorandum opinion explicitly dismissing Counts II, III, and IV with prejudice and Counts I, V, and VI without prejudice. Accompanying the decision was form AO4050 (the "Judgment Form"). That form, titled "Judgment In A Civil Case," signed by the clerk of the court and dated the same day as the memorandum opinion, stated that "Counts I, V, and VI of Plaintiffs' first amended complaint are dismissed without prejudice." The Judgment Form, however, also included what purported to be an entry of final judgment: "All matters in controversy having been resolved, final judgment is hereby entered in favor of the defendant and against the plaintiffs."

Eight months after the dismissal of the first amended complaint, the Cook Plaintiffs, now joined by a second group of plaintiffs (together with the Cook Plaintiffs, the "Appellants"), filed a motion for leave to file a second amended complaint pursuant to Rule 15(a) of the Federal Rules of Civil Procedure. On July 3, 2003, the district court denied the motion and also converted its earlier dismissal of Counts I, V, VI without prejudice to dismissals with prejudice. The district court found that the passage of eight months was an undue delay and that the eight-month delay was also prejudicial to ComEd. In a memorandum opinion accompanying its decision, the court found that "eight months is beyond the pale in light of what was required of [the Appellants]." The district court attributed the delay in filing the motion for leave to an effort by Appellants' trial counsel to add new plaintiffs: "[I]nstead of taking what should have been weeks, Plaintiffs' counsel spent eight months busily hunting up new clients." The district court also agreed with ComEd that ComEd was prejudiced because during the eight-month delay, "memories faded and documents were lost." This appeal followed.

II.

The Appellants argue that the district court abused its discretion in denying their motion for leave to amend. Before we reach that issue, however, we must consider whether the district court had the jurisdiction to consider the motion for leave to file the second amended complaint. ComEd argued before the district court, and repeats its arguments here, that the entry by the district court of the Judgment Form accompanying the district court's September 25, 2002 decision made that decision a final judgment and thus the district court did not have jurisdiction eight months later to consider the Rule 15(a) motion. The district court rejected ComEd's jurisdictional argument and stated that "we dismissed the claims at issue without prejudice and fully intended that the Plaintiffs be given the opportunity to amend their complaint."

When there has been an entry of final judgment, a complaining party may amend a complaint pursuant to Rule 15(a) only after that party has successfully altered or amended the judgment pursuant to Rule 59(e) or the judgment has been vacated pursuant to Rule 60(b). See Sparrow v. Heller, 116 F.3d 204, 205 (7th Cir.1997). The Appellants did not move to set aside or alter this judgment. Therefore, if the district court's September 25, 2002 order and the accompanying Judgment Form represented a final judgment, the district court should not have considered, and had no jurisdiction to consider, the Appellants' Rule 15(a) motion. Paganis v. Blonstein, 3 F.3d 1067, 1073 (7th Cir.1993) (holding that, absent a Rule 59(e) or 60(b) motion, a district court lacks the jurisdiction to review a Rule 15(a) motion where final judgment has been entered).

Interwoven with the district court's jurisdiction to hear the Appellants' motion for leave to file the second amended complaint is this court's jurisdiction. With some exceptions not applicable here, this court's jurisdiction is limited to the review of final decisions. 28 U.S.C. § 1291. A party seeking to appeal a final decision of a district court must file a notice of appeal with that court "within 30 days after the judgment or order appealed from is entered." Fed. R.App. P. 4(a)(1)(A). The Appellants did not, of course, file a notice of appeal within 30 days after the district court's September 25, 2002 decision. Thus, if that decision were a final decision, any appeal would be untimely and this court would not have jurisdiction. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 203, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988) (holding that the filing of a timely notice of appeal is mandatory and jurisdictional).

Despite the language in the district court's order of judgment, the district court's dismissal of the complaint was not a final judgment. With a limited exception, a dismissal without prejudice "does not qualify as an appealable final judgment because the plaintiff is free to re-file the case." Larkin v. Galloway, 266 F.3d 718, 721 (7th Cir.2001); see also Furnace v. Bd. of Trustees of Southern Ill. Univ., 218 F.3d 666, 669 (7th Cir.2000); Principal Mutual Life Ins. v. Cincinnati TV 64 Ltd. P'ship, 845 F.2d 674, 676 (7th Cir.1988) ("An order dismissing a complaint is not final because a plaintiff may file an amended complaint, resurrecting the lawsuit."). The exception to this rule arises "when it is clear from the record that the district court `found that the action could not be saved by any amendment of the complaint which the plaintiff could reasonably be expected to make.'" Furnace, 218 F.3d at 670.

The September 25, 2002 dismissal of three of the Cook Plaintiffs' claims was without prejudice. This is made clear both in the district court's opinion and, more importantly, in the Judgment Form. The Judgment Form states that three of the counts "are dismissed without prejudice." A review of the record does not suggest that amendments to the complaint would be futile. To the contrary, the district court's opinion accompanying the Judgment Form makes it clear that the first amended complaint was capable of being amended. For example, with respect to Counts V and VI, the district court concluded that the counts should be dismissed because the Cook Plaintiffs had not met the requirements of particularity for an averment of fraud required by Federal Rule of Civil Procedure 9(b). Specifically, the district court found that "there are many dates, documents, and names that need to be included in the complaint in order to meet the Rule 9(b) requirements." Requiring a party to provide more specific dates, names and certain documents suggests that the party need only provide more detail, and the record does not show that adding such detail would have been impossible.

The problem arises, of course, because immediately after the Judgment Form states that certain of the counts are dismissed without prejudice, the Judgment Form also states that the final judgment is entered in favor of ComEd. Thus, the Judgment Form appears to be inconsistent — it tells the Appellants that their claim is dismissed without prejudice (meaning the Appellants could amend their complaint) but then goes on to state that all matters at issue have been resolved and that a final judgment had been reached. The district court's labeling of its decision as final (apparently inadvertently) should not, however, be conclusive. A district court's decision is a final judgment only when the decision meets the requirements for being a final judgment. The September 25, 2002 decision was not final, regardless of the label attached to it. See Dodge v....