Title Penn West Associates, Inc. v. Cohen
Date 2004
By
Subject Other\Dissenting
Contents
Page 1
10 of 79 DOCUMENTS
PENN WEST ASSOCIATES, INC., a Corporation t/d/b/a THE WILKINS HOUSE, Appellant v. KATHERINE COHEN, Co-Executrix of the Estate of Eugene M. Litman*; MICHAEL LITMAN, Co-Executor of the Estate of Eugene M. Litman*; JAMES W. MCCARTHY; PENN WEST ASSOCIATES, also known as PENN WEST OFFICE BUILDING, a limited partnership; BRANDYWINE AGENCY; ALPINE CONSTRUCTION CO., a Corporation; PROPERTY DEVELOPMENT ASSOCATES, INC., a Corporation; PITTSBURGH INVESTMENT COMPANY, a Partnership; PATRICIA KATZ, general partner; ABLE HOME CENTER, INC.; DIANNA BOBACK, an individual; MARGARET MULL, an individual
* (Amended pursuant to Court Order of May 21, 2004)
No. 02-4344
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
371 F.3d 118; 2004 U.S. App. LEXIS 11522
September 15, 2003, Argued
June 9, 2004, Opinion Filed
PRIOR HISTORY:
**1 On Appeal from the United States District Court for the Western District of Pennsylvania. D.C. Civil Action No. 97-cv--01678. (Honorable Alan N. Bloch).
DISPOSITION: Vacated and remanded.
CASE SUMMARY:
PROCEDURAL POSTURE: After the parties in a civil Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C.S. §§ 1961-1968, case informed the U.S. District Court for the Western District of Pennsylvania that they had tentatively settled their dis- pute, the case was administratively closed. Appellant cor- poration then filed a motion to re-open. Treating the mo- tion as one under Fed. R. Civ. P. 60(b), the court denied the motion. The corporation appealed.
OVERVIEW: On appeal, the corporation argued that the district court erred in denying its motion to re-open the civil RICO case. The appellate court agreed, but for rea- sons other than those the corporation articulated. The dis- trict court misunderstood the corporation's motion to re- open as one for relief under Rule 60(b). But Rule 60(b) did not govern the corporation's motion because the dis- trict court's order directing that the corporation's case be marked closed was not a final judgment or order. The
purpose of the district court's order was to direct the clerk to mark the corporation's case as closed. But there was more for the district court to do before the litigation was truly over. The order, then, was not a final judgment or or- der; instead, it was an administrative closing, which was not sanctioned by the Federal Rules of Civil Procedure and did not dispense with the technical requirements of finality. And, because it was administratively closed, the case could be restored to active status. Thus, because the district court's order was not a final decision, the district court erred in analyzing the corporation's motion to re- open under Rule 60(b).
OUTCOME: The district court's order denying the cor- poration's motion to re-open was reversed, and the matter was remanded to the district court for further considera- tion.
LexisNexis(R) Headnotes
Civil Procedure > Relief From Judgment > Relief
Generally
HN1 See Fed. R. Civ. P. 60(b).
Civil Procedure > Appeals > Standards of Review > Abuse of Discretion
Civil Procedure > Relief From Judgment > Relief
Generally
Civil Procedure > Appeals > Standards of Review > De
371 F.3d 118, *; 2004 U.S. App. LEXIS 11522, **1
Page 2
Novo Review
HN2 A district court's denial of a Fed. R. Civ. P. 60(b) motion generally is reviewed for abuse of discretion. The district court's decision to treat a motion to re-open as a Fed. R. Civ. P. 60(b) motion, however, is purely a question of law, which the United States Court of Appeals for the Third Circuit reviews de novo.
Civil Procedure > Relief From Judgment > Relief
Generally
Civil Procedure > Appeals > Appellate Jurisdiction > Final Judgment Rule
HN3 According to the Fed. R. Civ. P. 60(b) advisory committee's note, the qualifying word "final" emphasizes the character of the judgments, orders or proceedings from which Rule 60(b) affords relief; and hence interlocutory judgments are not brought within the restrictions of the rule, but rather they are left subject to the complete power of the court rendering them to afford such relief from them as justice requires.
Civil Procedure > Relief From Judgment > Relief
Generally
Civil Procedure > Appeals > Appellate Jurisdiction > Final Judgment Rule
HN4 Fed. R. Civ. P. 60(b) applies only to "final" judg- ments and orders.
Civil Procedure > Appeals > Appellate Jurisdiction > Final Judgment Rule
HN5 The concept of "finality" is well-settled. The United States Supreme Court has defined a "final deci- sion" for purposes of appeal generally as one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment. The United States Court of Appeals for the Third Circuit has described a final deci- sion as one which disposes of the whole subject, gives all the relief that was contemplated, provides with reasonable completeness for giving effect to the judgment and leaves nothing to be done in the cause save to superintend, min- isterially, the execution of the decree. Accordingly, there is no final order if claims remain unresolved and their res- olution is to occur in the district court. This description accords with several other courts of appeals.
Civil Procedure > Appeals > Appellate Jurisdiction > Final Judgment Rule
HN6 The boundaries of 28 U.S.C.S. § 1291 jurisdiction do not depend on the trial court's belief that a particular decision is or is not "final."
Civil Procedure > Appeals > Appellate Jurisdiction > Final Judgment Rule
HN7 The mere consent of the parties to the court's con- sideration and decision of the case cannot, by itself, confer jurisdiction on the court in the absence of a final judgment.
Governments > Courts > Authority to Adjudicate
HN8 Administrative closings comprise a familiar, al- beit essentially ad hoc, way in which courts remove cases from their active files without making any final adjudica- tion. The method is used in various districts throughout the nation in order to shelve pending, but dormant, cases. The United States Court of Appeals for the First Circuit endorses the judicious use of administrative closings by district courts in circumstances in which a case, though not dead, is likely to remain moribund for an apprecia- ble period of time. Properly understood, an administrative closing has no effect other than to remove a case from the court's active docket and permit the transfer of records as- sociated with the case to an appropriate storage repository. In no event does such an order bar a party from restoring the action to the court's active calendar upon an appropri- ate application. Nor is the power to resurrect reserved to the parties. The court, too, retains the authority to rein- state a case if it concludes that the administrative closing was improvident or if the circumstances that sparked the closing abate.
Governments > Courts > Authority to Adjudicate
HN9 The United States Court of Appeals for the First Circuit in Lehman presents a reasoned explication of a device that, when used in correct context, enhances a district court's ability to manage its docket. The United States Court of Appeals for the Third Circuit adopts that rationale and holds that an order merely directing that a case be marked closed constitutes an administrative clos- ing that has no legal consequence other than to remove that case from the district court's active docket.
Civil Procedure > Appeals > Appellate Jurisdiction > Final Judgment Rule
HN10 See Fed. R. Civ. P. 54(a).
Civil Procedure > Appeals > Appellate Jurisdiction > Final Judgment Rule
HN11 See Fed. R. Civ. P. 58.
Civil Procedure > Appeals > Appellate Jurisdiction > Final Judgment Rule
HN12 The separate document requirement of Fed. R. Civ. P. 58 must be applied mechanically.
Governments > Courts
HN13 The judicial process works best when orders mean what they say. Surprising interpretations of sim- ple language--perhaps on the basis of a judicial intent not revealed in the words--unnecessarily create complex questions and can cause persons to forfeit their rights un- intentionally. Parol evidence about the judge's intentions should be irrelevant, just as parol evidence is excluded in contract cases when the language is clear.
371 F.3d 118, *; 2004 U.S. App. LEXIS 11522, **1
Page 3
COUNSEL:
Bela A. Karlowitz, Esquire (Argued), Daniel M. Flynn, Esquire, Karlowitz & Cromer, Pittsburgh, PA, Attorneys for Appellant.
Robert L. Potter, Esquire (Argued), David A. Strassburger, Esquire, Strassburger, McKenna, Gutnick
& Potter, Pittsburgh, PA. James A. Ashton, Pittsburgh, PA, Attorneys for Appellees.
JUDGES:
Before: ALITO, AMBRO and CHERTOFF, Circuit
Judges. ALITO, Circuit Judge, dissenting.
OPINIONBY:
*120 AMBRO
OPINION:
OPINION OF THE COURT
AMBRO, Circuit Judge:
We review the District Court's November 5, 2002 or- der denying the motion of Penn West Associates, Inc.
("Penn West") to re-open its civil RICO case. That case was administratively closed by order of the District Court on August 19, 1999, after both parties informed the Court that they tentatively settled their dispute. In fact, the civil RICO case was not concluded. The District Court mis- took **2 its administrative closure of the case as a final decision, which mistakenly led it to treat Penn West's mo- tion to re-open the case and list it for trial as one under Federal Rule of Civil Procedure 60(b). Thus it erred in denying Penn West's motion to re-open.
I. Background
On September 11, 1997, Penn West filed suit in the Court of Common Pleas of Allegheny County, Pennsylvania against Eugene M. Litman (individually and in his capacity as Executor of the Estate of H. Raymond Litman); James W. McCarthy; Penn West Associates, a partnership comprised of Eugene M. Litman, Michael A. Litman, and James W. McCarthy (Eugene M. Litman, James W. McCarthy, and Penn West Associates be- ing hereinafter collectively referred to as the "Litman Group"); and numerous other defendants. The suit arose from Lawrence A. Levine's purchase in 1993 of all of the capital stock of Penn West from Eugene M. Litman, James W. McCarthy, and the Estate of H. Raymond Litman. Penn West's complaint contained, inter alia, a cause of action under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961-1968. According **3 to the complaint, the defendants had purportedly looted, and aided in the looting of, Penn West's assets between February 1988 and late 1993, when Eugene M. Litman, H. Raymond Litman, and McCarthy owned the company. Levine was never a named party to the action.
On September 17, 1997, the action was removed to the United States District Court for the Western District of Pennsylvania. Prior to trial, all counts of the complaint were dismissed except for the civil RICO claim against the Litman Group. For trial purposes, the case was also joined with a related qui tam action under the False Claims Act, 31 U.S.C. §§ 3729-3731, captioned United States ex rel. Weinstein v. Litman, No. 96-1860. Robert Potter, Esq. was lead counsel for the Litman Group in both actions. Robert Ridge, Esq. was lead counsel for the private plain- tiff in the False Claims Act case. While the RICO case was pending trial,
371 F.3d 118, *121; 2004 U.S. App. LEXIS 11522, **3
Page 4
*121 Penn West and Levine both filed bankruptcy petitions in the United States Bankruptcy Court for the Western District of Pennsylvania. Mary Reitmeyer, Esq., was appointed as Trustee for Penn West in its case, and thereafter obtained an order appointing John Orie, Esq.
**4 as special counsel for Penn West for purposes of pursuing the RICO action.
On July 1, 1999, after six days of trial in the RICO case, counsel for the parties informed the District Judge that they had reached a settlement. During a tele- phone conference on the record that day among, in- ter alia, the District Judge, Potter and Orie, Potter in- formed the District Court that his clients (the Litman Group) had agreed to pay $25,000 to the United States Department of Justice to settle the False Claims Act case and that the Department of Justice had approved the set- tlement. Furthermore, the Litman Group had agreed to pay $75,000 to Penn West to settle the RICO case. Potter informed the District Court that "mutual releases will be exchanged with everybody in the RICO case , including attorneys." Potter also stated that, as part of the settle- ment, the Litman Group would be dropping its claims against Levine individually in his bankruptcy proceed- ing and would assert no further claims in either Levine's or Penn West's bankruptcy proceedings. Moreover, the Litman Group would be marking as satisfied any state court judgments it had obtained against Levine person- ally. n1
n1 The District Court's opinion notes that this reference to judgments against Levine relates to a
"long history of a contemptuous and litigious rela- tionship" between Levine and one or more members of the Litman Group.
**5
Although Orie did not speak at the conference, at no time did he object to the description of the terms of the settlement. The parties then agreed that they would not file the settlement agreement of record in the District Court
because of concern that, if filed, the agreement could not be sealed. The District Judge ended the conference by stating: "We'll advise the jury that they are discharged, and we'll wait to receive from you the settlement papers that I have to approve."
Seven weeks later, the Court, having heard nothing further from the parties and making no inquiry of them, issued the following order:
AND NOW, this 19th day of August, 1999, having been advised by the parties of the full and final settlement of the above captioned matter and there are no further matters pend- ing before the Court,
IT IS HEREBY ORDERED that the Clerk of the Court mark the above captioned mat- ter closed.
The triggering premise of the order (final settlement) proved, however, to be premature. No settlement agree- ment was ever drafted and settlement papers had never been sent to, nor approved by, the District Court. Nevertheless, the order was entered by the Clerk and counsel **6 were notified accordingly. n2
n2 The release to settle the False Claims Act case was nonetheless executed and the Litman Group paid the $25,000 settlement amount to the Department of Justice.
As a result of the August 19, 1999 order, the par- ties and the District Court appear to have operated under the assumption that the litigation was termi- nated. Approximately three months later, Reitmeyer, the bankruptcy Trustee for Penn West, filed a motion with the District Court to compel enforcement of the purported set- tlement terms of the RICO case. The motion stated that the settlement had not been finalized because the Litman Group
371 F.3d 118, *122; 2004 U.S. App. LEXIS 11522, **6
Page 5
*122 had insisted that Levine personally join in the
"mutual release" referred to during the July 1, 1999 tele- conference. The Litman Group's response to Penn West's motion stated that the settlement had not been completed for the sole reason that Levine "consistently refused to execute a general release in favor of the Litman Group Defendants, notwithstanding that he expects the Litman Group **7 Defendants to release all of their claims against him individually." n3
n3 The Litman Group's response concerned the substance of the settlement negotiations, indicat- ing that it was Orie, special counsel for Penn West, who intended any settlement to encompass "all mat- ters." During the negotiations, Potter, counsel for the Litman Group, apparently informed Orie that the Litman Group was willing to release its claims against Levine individually, but only in return for
**9
Kokkonen v. Guardian Life Ins. Co. of Amer., 511
U.S. 375, 380-81, 128 L. Ed. 2d 391, 114 S. Ct.
1673 (1994) (holding that a district court lacks ju- risdiction to enforce a settlement agreement unless the court retains jurisdiction over the agreement or incorporates the terms of the agreement into its dis- missal order), and Sawka v. Healtheast, Inc., 989
F.2d 138, 141 (3d Cir. 1993) (holding that a district court does not have the power to exercise jurisdic- tion over a petition to enforce a settlement "unless
... it is part of the record, incorporated into an order of the district court, or the district court has manifested an intent to retain jurisdiction"). See Penn West Associates, Inc., No. 97-1678, slip op. at 6-7.
a general release from, among others, Levine per- sonally.
A conference with the parties (including Levine) was convened by the District Court on November 18, 1999 to discuss the motion. During this conference, Levine stated that he was not personally represented by Orie and that he had never authorized Orie to include him in the settlement. As later recounted in its opinion, the District Court found it "incredulous that the defendants would pay money to
Penn West , solely owned by Lawrence Levine, and yet leave themselves open to lawsuits filed **8 by Levine." Penn West Associates, Inc. v. Litman, No. 97-1678, slip op. at 6 (W.D. Pa. Nov. 5, 2002). Nevertheless, the District Court stated that the case was "settled and closed." The Court further stated that the settlement agreement, which had not been made a part of the record, was a contract be- tween the parties whose terms would have to be litigated in another forum. It therefore denied Penn West's motion to enforce the settlement. n4
n4 The District Court, in its November 5,
2002 opinion, subsequently noted that its refusal to enforce the purported settlement was based on
Penn West's Trustee (Reitmeyer) did not seek imme- diately to re-open Penn West's civil RICO case. Instead, she filed an adversary proceeding in Penn West's ongo- ing bankruptcy case to enforce the purported settlement against the Litman Group. On September 11, 2000, the Bankruptcy Court issued an opinion stating that
there existed a mistake in the understanding of the parties as to the terms of settlement. The mistake was basic and central to any set- tlement. Defendants were not going to settle on the, terms offered without the release from Mr. Levine and Mr. Levine, believing he had no control over matters having to do with the corporation, was willing to let the Trustee settle for the corporation, but he individually was not going to release the defendants.
The Bankruptcy Court concluded that, due to the mis- take, no settlement agreement existed and therefore de- nied Penn West's motion to enforce the settlement.
The Trustee again did not return to the District Court to seek re-opening the closed RICO civil case. Rather, Penn West proceeded through its bankruptcy until March
15, 2002, when a plan of reorganization
371 F.3d 118, *123; 2004 U.S. App. LEXIS 11522, **9
Page 6
*123 was approved by the Bankruptcy Court. Under the plan, **10 Levine regained control of Penn West. Subsequently, on May 10, 2002, Penn West filed with the District Court a Motion to List the Case for Trial and Other Relief. The motion related the foregoing facts and that the Litman Group had filed a substantial claim against Levine in his ongoing individual bankruptcy case. Penn West argued that the resolution of its civil RICO case would affect substantially the claims of the Litman Group and others in Levine's individual bankruptcy case. Finally, the motion requested that "(i) the docket entry in this Civil Action showing that the case is settled be stricken and (ii) the case be scheduled for trial forthwith...." No legal au-
**12
ment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judg- ment should have prospective applica- tion; or (6) any other reason justifying relief from the operation of the judg- ment. The motion shall be made within a reasonable time, and for reasons (1),
(2), and (3) not more than one year af- ter the judgment, order, or proceeding was entered or taken.
thority for this request was cited.
The Litman Group's memorandum in opposition to
Penn West's motion argued that "to declare a 'closed' case
'open' for reasons other than clerical mistake, it is neces- sary to file a motion for relief from the final order under Federal Rule of Civil Procedure 60(b)." Agreeing with the Litman Group, the District Court analyzed Penn West's motion under Rule 60(b). n5 On November 5, 2002, the Court denied the motion, holding that Penn West could not **11 satisfy the requirements of Rule 60(b)(1), (2),
(3) or (6). Penn West filed a timely notice of appeal from the District Court's order.
n5 Rule 60(b) states in pertinent part:
HN1 On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or pro- ceeding for the following reasons: (1) mistake, inadvertence, surprise, or ex- cusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether heretofore denom- inated intrinsic or extrinsic ) misrep- resentation, or other misconduct of an adverse party; (4) the judgment is void;
(5) the judgment has been satisfied, re- leased, or discharged, or a prior judg-
II. Jurisdiction
The District Court had jurisdiction over Penn West's civil RICO action pursuant to 28 U.S.C. § 1331, which provides, for federal question jurisdiction, and removal was proper under 28 U.S.C. § 1441. With respect to our ap- pellate jurisdiction, we have noted previously that, while
"it would appear that an order denying a Rule 60(b) mo- tion is appealable under 28 U.S.C. § 1291," this may not always be the case. See Torres v. Chater, 125 F.3d 166,
167-68 (3d Cir. 1997). In Torres, we stated:
There is an interdependence between the
"finality" required for Rule 60(b) and sec- tion 1291. In some instances, the Court of Appeals may not entertain an appeal from a denial of a Rule 60(b) motion under section
1291 because the underlying order in the dis- trict court is purely interlocutory and, thus, not within the scope of Rule 60(b), which applies only to "final" judgments and orders.
Id. at 168 (citing Kapco Mfg. Co. v. C & O Enterprises, Inc., 773 F.2d 151, 153 (7th Cir. 1985)). Thus, if the denial of the Rule 60(b) motion is itself **13 interlocu- tory, we normally do not have appellate jurisdiction to review that denial. Torres recognized, however, that even where an underlying order is purely interlocutory, we may nonetheless review a district court's denial of a Rule 60(b) motion if the denial has the effect of "
371 F.3d 118, *124; 2004 U.S. App. LEXIS 11522, **13
Page 7
*124 'wrapping up all matters pending on the docket,' thus making the decision final." Id. (quoting Kapco Mfg. Co., 773 F.2d at 153). An example is a district court's interlocutory order remanding a case to an administrative agency for reconsideration. See id. If, while the case was pending before the agency, a party filed a Rule 60(b) mo- tion arguing that the remand had been procured by fraud on the court, a denial of that motion would be dispositive of the charge of fraud. Id. Given those circumstances, we held that the underlying remand order may be considered final for purposes of Rule 60(b) and the denial of a Rule
60(b) motion would be a final decision, reviewable under
28 U.S.C. § 1291. Id.
We are, however, not presented with the difficulties addressed in Torres because this case does not require us to review the merits of the denial of **14 a Rule 60(b) motion, for we conclude below that it was error to ap- ply Rule 60(b) in this case. The decision before us is the District Court's denial of a motion to re-open an admin- istratively closed case. The practical effect of that denial was to dismiss Penn West's action. Thus we hold that the District Court's November 5, 2002 order was a final decision under 28 U.S.C. § 1291. See Brown Shoe Co. v. United States, 370 U.S. 294, 306, 8 L. Ed. 2d 510, 82 S. Ct.
1502 (1962) (noting that the Supreme Court has adopted a "pragmatic approach to the question of finality"); cf. In re Grand Jury Proceedings (U.S. Steel-Clairton Works),
525 F.2d 151, 155 (3d Cir. 1975) (holding that a district court's indefinite stay of federal grand jury proceedings pending a state civil contempt action had "the practical effect of a dismissal of the proceedings" and hence was a final order). We therefore have jurisdiction over this appeal.
III. Standard of Review
HN2 A District Court's denial of a Rule 60(b) motion
generally is reviewed for abuse of discretion. Montgomery
County v. Microvote Corp., 320 F.3d 440, 445 (3d Cir.
2003). The District **15 Court's decision to treat Penn West's motion as a Rule 60(b) motion, however, is purely a question of law, which we review de novo. See United States v. Small, 333 F.3d 425, 427 (3d Cir. 2003) (citing United States v. Singletary, 268 F.3d 196, 198 (3d Cir.
2001)).
IV. Discussion
On appeal, Penn West argues that the District Court erred in denying its motion to re-open the civil RICO case and list it for trial, as its case did not settle and the District Court's August 19, 1999 order marking the case closed was void. Penn West concludes that the District Court should have reviewed the motion under Rule 60(b)(4), which allows relief from a "void judgment," rather than conducting an analysis under Rule 60(b)(1), (2), (3), and
(6). We agree that the District Court erred, albeit for dif- ferent reasons than those articulated by Penn West. We first address whether Rule 60(b) is the correct rule govern- ing Penn West's motion. We next address the significance of the District Court's August 19, 1999 order. Finally, we respond briefly to the concerns raised by our dissenting colleague.
A. Application of Rule 60(b)
Our analysis of Rule 60(b) **16 begins, as it must, with its text (see supra note 5). It allows a party to seek re- lief only from a "final judgment, order, or proceeding...." The application of the word "final" is clarified by the Advisory Committee Notes, which explain that
HN3 the qualifying word "final" empha- sizes the character of the judgments, orders
371 F.3d 118, *125; 2004 U.S. App. LEXIS 11522, **16
Page 8
*125 or proceedings from which Rule
60(b) affords relief; and hence interlocutory judgments are not brought within the restric- tions of the rule, but rather they are left sub- ject to the complete power of the court ren- dering them to afford such relief from them as justice requires.
Accordingly, we have held that Rule 60(b) HN4 "applies only to 'final' judgments and orders." Torres, 125 F.3d at
168; see also Kapco Mfg. Co., 773 F.2d at 154 (hold- ing that "Rule 60(b) must be limited to review of orders that are independently 'final decisions' under 28 U.S.C. §
1291"). n6
n6 In Kapco, the Court reasoned that Rule 60(b) must be so limited because " a party should not get immediate review of an order for discovery, or one denying summary judgment and setting the case for trial, just by filing a Rule 60(b) motion to set aside the order and then appealing the denial of this motion." 773 F.2d at 154.
**17
HN5 The concept of "finality" is well-settled. In
Catlin v. United States, 324 U.S. 229, 233, 89 L. Ed. 911,
65 S. Ct. 631 (1945), the Supreme Court defined a "fi- nal decision" for purposes of appeal "generally as one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Interpreting Catlin, we have described a final decision as "'one which disposes of the whole subject, gives all the relief that was contemplated, provides with reasonable completeness for
giving effect to the judgment and leaves nothing to be done in the cause save to superintend, ministerially, the execution of the decree.'" Isidor Paiewonsky Assocs., Inc. v. Sharp Props., Inc., 28 V.I. 448, 998 F.2d 145, 150 (3d Cir. 1993) (quoting In re Moody, 825 F.2d 81, 85 n.5 (5th Cir. 1987)) (emphasis in original). Accordingly, "there is no final order if claims remain unresolved and their res- olution is to occur in the district court." Aluminum Co. of Amer. v. Beazer East, Inc., 124 F.3d 551, 557 (3d Cir.
1997) ("Ordinarily, a final decision will have two effects. First, the decision will fully resolve all claims **18 presented to the district court. Second, after the decision has been issued, there will be nothing further for the dis- trict court to do."). This description accords with several other courts of appeals. See Moody, 825 F.2d at 85 n.5; Youghiogheny & Ohio Coal Co. v. Baker, 815 F.2d 422,
424 (6th Cir. 1987); United States v. Western Elec. Co.,
250 U.S. App. D.C. 23, 777 F.2d 23, 26 (D.C. Cir. 1985); see also Otis v. City of Chicago, 29 F.3d 1159, 1163 (7th Cir. 1994) (" A final judgment should be a self-contained document, saying who has won and what relief has been awarded....").
Is the District Court's August 19, 1999 order a final decision? If not, relief is unavailable under Rule 60(b). At the outset, we note that the order did not resolve, or even purport to resolve, any of the claims that Penn West presented to the District Court. Rather, its purpose was solely to direct the Clerk of the Court to mark Penn West's case as closed. n7 More importantly, there was more for the District Court to do. The parties had to continue their litigation in both the District Court and the Bankruptcy Court to determine: (1) **19 whether they had indeed
"settled"
371 F.3d 118, *126; 2004 U.S. App. LEXIS 11522, **19
Page 9
*126 their case in July 1999, and (2) (a) if so, the terms of that settlement and whether to approve it, or (b) if not, how to achieve a resolution of their ongoing dispute. Accordingly, the District Court's order does not satisfy our definition of a final decision.
n7 We also note that the factual basis given for the order is incorrect. It stated that the District Court had been "advised by the parties of the full and final settlement" of Penn West's case. That event, how- ever, never occurred. All parties agree that coun- sel and the District Court did not communicate between the July 1, 1999 teleconference and the August 19, 1999 order. The parties also agree that no final settlement papers were sent to the District Court. We thus cannot discern from the record any substantive reason for the issuance of the District Court's order, especially after telling the parties on July 1, 1999 that "we'll advise the jury that they are discharged, and we'll wait to receive from you the settlement papers that I have to approve."
**20
Our conclusion is not altered by the parties' mistaken assumption that their litigation was terminated by the District Court's August 19, 1999 order. The Court itself contributed to this misunderstanding with its November
18, 1999 statement on the record that "our cases are set- tled and closed, and that's the way they are going to stay, and if you have a dispute over the terms of the settlement, that's a contract dispute, and you go ahead and litigate that contract dispute wherever you please." This mistaken as- sumption on the part of the District Court does not end the case. See Bensalem Township. v. American Fidelity Fire Ins. Co., 644 F.2d 990, 994 (3d Cir. 1981) HN6 ("The boundaries of section 1291 jurisdiction do not depend on the trial court's belief that a particular decision is or is not
'final' . . . ."). That the parties followed suit in the belief that the District Court's order terminated their litigation does not make it so. Cf. Brown Shoe Co. v. United States,
370 U.S. 294, 305, 8 L. Ed. 2d 510, 82 S. Ct. 1502 (1962)
(holding that HN7 "the mere consent of the parties to the Court's consideration and decision of the case cannot, by itself, confer jurisdiction **21 on the Court" in the absence of a final judgment); Gerardi v. Pelullo, 16 F.3d
1363, 1368 (3d Cir. 1994) ("We directed the parties to
brief the finality issue, notwithstanding their agreement that the certification was proper, for we consider the va- lidity of a Rule 54(b) certification ourselves.").
Because the District Court's August 19, 1999 order was not a final judgment or order, we hold that it erred in analyzing Penn West's motion under Rule 60(b). How then should the District Court have analyzed Penn West's motion? To that we now turn.
B. Administrative Closings
To determine the nature of the relief requested in Penn West's motion to reopen, we need to clarify the legal significance of the District Court's August 19, 1999 or- der directing the Clerk to mark Penn West's civil RICO case closed. We conclude that the sole legal consequence of this order was to remove Penn West's case from the District Court's active docket. Several courts refer to such an order as an "administrative closing."
The Court of Appeals for the First Circuit has ad- dressed the purpose and significance of administrative closings in Lehman v. Revolution Portfolio L.L.C., 166
F.3d 389, 392 (1st Cir. 1999). **22 There, the plain- tiff in a civil action requested the District Court to stay its proceedings because he had entered bankruptcy. Id. at
391. The District Court, responding to this request, issued what it termed a "Procedural Order of Dismissal." Id. It stated:
In order to avoid the necessity for the coun- sel to appear at periodic status conferences, it is hereby ORDERED that the above-entitled action be and hereby is dismissed without prejudice to either party moving to restore it to the docket if any further action is re- quired upon completion and termination of all bankruptcy or arbitration proceedings.
Id. Upon receiving the order, "the clerk of court closed the file, but did not enter a final judgment." Id. At the request of one of the parties, the District Court re-opened the case three years later and heard its merits. Id. One of the appellant's arguments on appeal was that the Court had improperly re-opened the case. Id. The appellant argued that the case had been
371 F.3d 118, *127; 2004 U.S. App. LEXIS 11522, **22
Page 10
*127 dismissed and to re-open it three years after dis- missal violated the timeliness requirements of Rule 60(b). Id. The First Circuit clarified that the District Court's
**23 order, while labeled a "dismissal," was not a fi- nal judgment that could be corrected under Rule 60. Id. Rather, the order did no more than administratively close the case. Id. at 391-92. The fact that the order had a mis- leading label "cannot alter the character of its action." Id. at 392 n.2.
The Lehman Court explained the nature of an admin- istrative closing as follows:
HN8 Administrative closings comprise a familiar, albeit essentially ad hoc, way in which courts remove cases from their active files without making any final adjudication. See Corion Corp. v. Chen, 964 F.2d 55, 56-57
(1st Cir. 1992) (holding that an order deem- ing a case "administratively closed" was not a final, appealable order absent a separate doc- ument to signal the court's "view that the case had concluded"). The method is used in var- ious districts throughout the nation in order to shelve pending, but dormant, cases. See, e.g., id.; In re Arbitration Between Phila. Elec. Co. v. Nuclear Elec. Ins. Ltd., 845 F. Supp. 1026, 1028 (S.D.N.Y. 1994); Mercer
v. Allegheny Ludlum Corp., 132 F.R.D. 38,
38-39 (W.D. Pa. 1990), n8 **24 aff'd, 931
F.2d 50 (3d Cir. 1991). We endorse the judi- cious use of administrative closings by dis- trict courts in circumstances in which a case, though not dead, is likely to remain moribund for an appreciable period of time.
Properly understood, an administrative closing has no effect other than to remove a case from the court's active docket and per- mit the transfer of records associated with the case to an appropriate storage reposi- tory. "In no event does such an order bar a party from restoring the action to the Court's active calendar upon an appropriate appli- cation." In re Arbitration, 845 F. Supp. at
1028 (S.D.N.Y. 1994). Nor is the power to resurrect reserved to the parties. The court, too, retains the authority to reinstate a case if it concludes that the administrative closing was improvident or if the circumstances that sparked the closing abate.
Id. at 392 (emphasis added). n9 Lehman therefore ruled that the District Court's "Procedural Order of Dismissal"
"did not terminate the underlying case, but, rather,
371 F.3d 118, *128; 2004 U.S. App. LEXIS 11522, **24
Page 11
*128 placed it in an inactive status until such time as the judge, in his discretion or at the request of a party, chose **25 either to reactivate it or to dispose of it with finality." Id.
n8 We think it telling the manner in which the District Court in Mercer explained the Western District of Pennsylvania's practice of issuing or- ders directing the Clerk of Court to mark a case
"closed."
It is the practice of this Court to admin- istratively close those cases where rep- resentations are made that settlement is imminent or some other disposition of the case is contemplated by the parties other than adjudication. The admin- istrative closing Order reads, in part,
"Nothing contained in this Order shall be considered a dismissal or disposi- tion of this matter, and should further proceedings in it become necessary or desirable either party may initiate it in the same manner as if this Order had not been entered."
132 F.R.D. at 39 n.1. In this case, the District Court's August 19, 1999 order appears not to conform to the Western District's practice described above. If the order had contained the language recited by the Mercer Court, Penn West and the Litman Group likely would have better understood its nature and effect. The failure to include such language, how- ever, did not render the District Court's August 19,
1999 order any less an administrative closing.
**26
n9 The Lehman Court also noted that adminis- trative closings "may permissibly contain a built-in timetable under which it automatically will expire, effectively reinstating the case . . ., or, conversely, mature into a final judgment if no action inures within a specified period...." 166 F.3d at 392 n.4
(citations omitted).
Lehman's view of administrative closings has been followed by the Courts of Appeals for the Tenth and Eleventh Circuits. See, e.g., Florida Ass'n for Retarded Citizens v. Bush, 246 F.3d 1296, 1298 (11th Cir. 2001)
("Designating a case "closed" does not prevent the court from reactivating a case either of its own accord or at the
request of the parties."); Cantrell v. International Broth. of Elec. Workers, AFL-CIO, Local 2021, 69 F.3d 456,
457 (10th Cir. 1995); see also American Heritage Life Ins. Co. v. Orr, 294 F.3d 702, 715 (5th Cir. 2002) (Dennis, J., concurring)("The administrative closure reflects noth- ing more than the federal courts' overarching concern with tidy dockets; it has no jurisdictional **27 signif- icance."); cf. Mickeviciute v. I.N.S., 327 F.3d 1159, 1161 n.1 (10th Cir. 2003)(noting that an "administrative clo- sure of an immigration case temporarily removes the case from an immigration judge's calendar.... The admin- istrative closing of a case does not result in a final order. It is merely an administrative convenience which allows the removal of cases from the calendar in appropriate situations").
HN9 Lehman presents a reasoned explication of a device that, when used in correct context, enhances a dis- trict court's ability to manage its docket. We adopt that rationale and hold that an order merely directing that a case be marked closed constitutes an administrative clos- ing that has no legal consequence other than to remove that case from the district court's active docket.
We recognize that, in our case, nearly three years have passed between the District Court's August 19, 1999 or- der to mark the case closed and Penn West's May 10,
2002 motion to re-open the case and list it for trial. Yet we know of no provision in the Federal Rules of Civil Procedure by which the mere passage of time can ma- ture an administrative closing into a dismissal or a final
**28 judgment or order. As the Lehman Court noted, a district court can provide, in the text of its order, a built- in timetable under which the administrative closing may automatically expire, or, alternatively, mature into a final decision. See 166 F.3d at 392 n.4. In this case, however, the District Court's August 19, 1999 order provided no such feature. We can only conclude that the Court's order merely placed Penn West's civil RICO case in an "inactive status until such time as the judge, in his discretion or at the request of a party, chose either to reactivate it or to dispose of it with finality." Id. at 392.
We also recognize the possibility that there are cases in our Circuit in which the last order docketed is an ad- ministrative closing order. If those administrative closings comport with the practice described in Mercer, 132 F.R.D. at 39 n.1 (i.e., clearly indicating the status of the litiga- tion), there is little possibility that the parties mistake the order as a final decision. Here, however, it is easy to un- derstand why counsel believed their case over. As noted already, that belief does not a final decision make, **29 for an administrative closing order is not sanctioned by the Federal Rules and does not dispense with the technical requirements of finality. These requirements include not
371 F.3d 118, *128; 2004 U.S. App. LEXIS 11522, **29
Page 12
only a resolution of the parties' claims before the District Court, but also compliance with Rules 54 and 58 of the Federal Rules of Civil Procedure. n10 It is indeed possible
that, as a
371 F.3d 118, *129; 2004 U.S. App. LEXIS 11522, **29
Page 13
*129 consequence of our holding that the administrative closing order in our case has no legal significance beyond removing the case from the District Court's docket, liti- gants will return to the courts to re-open their administra- tively closed cases. Our fidelity to uniform and consistent application of the Federal Rules, however, does not permit us to hold otherwise.
n10 Fed. R. Civ. P. 54(a) provides, in part:
HN10 "'Judgment' as used in these rules includes a decree and any order from which an appeal lies." Fed. R. Civ. P. 58 (as in effect when the District Court issued its August 19, 1999 order; the rule was rewritten, in April 2002, in a manner that does not affect our analysis) required that HN11 "ev- ery judgment shall be set forth on a separate docu- ment." HN12 The separate document requirement must be applied mechanically." United States v. Indrelunas, 411 U.S. 216, 221-22, 36 L. Ed. 2d 202,
93 S. Ct. 1562 (1973); see also Gregson & Assoc. Architects v. Government of the Virgin Islands, 675
F.2d 589, 591-92 (3d Cir. 1982) (mandating a "me- chanical" application of Rule 58's separate docu- ment requirement, even where the appellant had mistakenly believed that the district court had is- sued a final judgment); United States v. Fiorelli,
337 F.3d 282, 286 (3d Cir. 2003) (applying Rule
58's separate document requirement to determine the timeliness of motions for post-judgment relief under Rules 59 and 60).
**30
We endeavor today only to correct a misapplication of Fed. R. Civ. P. 60(b), and to clarify the legal significance of the District Court's August 19, 1999 order administra- tively closing Penn West's civil RICO case, so that the motion before the District Court may be properly ana- lyzed. We decline to address whether Penn West's case maybe equitably barred from restoration to the District Court's active docket or whether the case may be dis- missed for failure to prosecute under Fed. R. Civ. P. 41(b). The District Court may consider these issues on remand.
C. The Dissent
As a final matter, a brief response to the dissenting opinion is in order. We note that our dissenting colleague does not challenge our application of well-established principles of finality or the conclusion that an adminis- trative closing order does not constitute a final decision. Instead, the dissent's objection is to our construction of the District Court's August 19, 1999 order as an adminis- trative closing order rather than a dismissal. This objec- tion, however, is based solely on the proposition that the District Court's order **31 was "ambiguously worded." n11 Relying on this supposed ambiguity, the dissent pro- poses that we use extrinsic evidence in order to conclude that the District Court and the parties actually understood the August 19th order to constitute a dismissal, and that, ergo, it was a dismissal.
n11 The dissent does not explain whether its finding of ambiguity is premised upon an ambi- guity on the face of the order or, alternatively, an ambiguity that is only apparent after considering extrinsic statements made by the District Court. As we describe below, however, we do not consider extrinsic evidence unless the order is ambiguous on its face.
We do not agree. The August 19th order is plain that the case be marked closed. This was predicated on the District Court's statement that it had been "advised by the parties of the full and final settlement" of the case and that "there were no further matters pending before the Court." As we have noted above, this factual predi- cate was certainly erroneous because the District **32 Court had yet to receive and approve the final settlement papers from the parties. But nothing in the order mentions dismissal. With no patent ambiguity in the August 19th order, no need exists for parol or extrinsic evidence.
HN13 The judicial process works best when orders mean what they say. Surprising interpretations of simple language - perhaps on the basis of a judicial intent not revealed in the words - unnecessarily
371 F.3d 118, *130; 2004 U.S. App. LEXIS 11522, **32
Page 14
*130 create complex questions and can cause persons to forfeit their rights uninten- tionally. Parol evidence about the judge's in- tentions should be irrelevant, just as parol evidence is excluded in contract cases when the language is clear.
Adams v. Lever Bros. Co., 874 F.2d 393, 395 (7th Cir.
1989); see also Berke v. Bloch, 242 F.3d 131, 136 (3d Cir. 2001) ("The judicial process works best when orders mean what they say. . . . Just as parol evidence is excluded in contracts cases when the plain language is clear, so too this type of extrinsic evidence about a party's intentions must be considered irrelevant to an unequivocal and fi- nal order." (citing Adams, 874 F.2d at 395)); In re UNR Industries, Inc., 143 B.R. 506, 516 (Bankr. N.D. Ill. 1992)
**33 ("If an order is clear and unambiguous on its face, there is no need to look beyond the face of the order to de- termine its meaning."). Applying this rule of construction, we reject our dissenting colleague's proposition that we may look past the clear and unambiguous words used in the District Court's August 19th order for what the Court and the parties intended or understood the order to mean. Reminiscent of the emperor's new clothes, the dissent has us, in effect, pretending to see something that does not exist. Per the dissent, we should simply pretend that Penn West's case was dismissed, even though (1) no language in the August 19th order mentioned a dismissal, (2) the District Court ignored the fact that it was not to act ab- sent receiving and approving settlement papers from the parties, and (3) treating the case as dismissed might un- knowingly subject Penn West to a refiling obligation that would trigger a statute of limitations defense. The upshot: the dissent finds that our decision is unfair to Penn West's adversaries; we find unfair the dissent's treatment of Penn West. Penn West should not be penalized when it was the District Judge who failed to terminate properly the **34
case before him.
V. Conclusion
The District Court misunderstood Penn West's May
10, 2002 motion as one for relief under Fed. R. Civ. P.60(b). Rule 60(b) did not govern Penn West's motion because the District Court's August 19, 1999 order di- recting that Penn West's case be marked closed was not a final judgment or order. That order accomplished no more than an administrative closing of Penn West's case. Thus we vacate the District Court's November 5, 2002 order denying the motion to re-open and remand this matter for further consideration consistent with this opinion.
DISSENTBY:
ALITO
DISSENT: ALITO, Circuit Judge, dissenting.
In my view, the District Court was correct in denying Penn West's Motion to List the Case for Trial and For Other Relief. The majority's holding - that this case has remained on the District Court's docket in a state of sus- pended animation for nearly five years - is unsound and may cause problems in other cases. I therefore respect- fully dissent.
I.
The relevant facts are simple. After receiving notice that a settlement had been reached, the District Court waited a few days and then, on August 19, 1999, signed
**35 the order that is at issue here. The order noted that the Court had been informed by the parties "of the full and final settlement" of the case and that "there were no further matters pending before the Court." The Order then provided that "the Clerk of the Court mark the above captioned matter closed."
371 F.3d 118, *131; 2004 U.S. App. LEXIS 11522, **35
Page 15
*131 Unfortunately, the order did not state expressly that the case was dismissed, but it is clear that the Court and the parties viewed the order as one that ended the liti- gation in the District Court. Indeed, the majority notes that
"the parties and the District Court appear to have operated under the assumption that the litigation was terminated." Maj. Op. at 3-4.
The District Court's understanding was confirmed a few months later when the settlement fell apart and the bankruptcy trustee for Penn West filed a motion asking the District Court to enforce the settlement. The District Court responded that the case was "settled and closed," that it was going to stay closed, and that the Trustee would have to file an independent action if it wished to claim that the settlement had been breached. Neither before nor af- ter this ruling did any party complain that the Court was failing to **36 open a case that had not been dismissed but had merely been administratively closed.
Several years later, after Penn West emerged from bankruptcy and after the Bankruptcy Court had declared that no valid settlement agreement existed, Penn West filed in the District Court a Motion to List the Case for Trial and For Other Relief. The motion did not specify the legal authority on which it was based, but the District Court, consistent with its view that the case had been dis- missed long ago, assumed that Penn West was moving for relief from a final judgment or order under Federal Rule of Civil Procedure 60(b). Concluding that the motion did not meet the standard for relief under that rule, the Court denied the motion, and Penn West took the present appeal. On appeal, Penn West has not argued that the District Court erred in treating its motion as a Rule 60(b) motion for relief from a final judgment or order. Rather, Penn West's sole argument is that it is entitled to relief under Rule 60(b)(4) because the order at issue is void because it was based on the mistaken belief that the case had been
settled.
At oral argument, counsel for Penn West insisted,
**37 even under questioning that invited him to change his position, that the August 19 order was a final order and that the issue before our Court is whether his client should have been granted relief from that order under Rule 60(b). The following exchange occurred:
The Court: The effect of the order of Judge Bloch saying the case was closed. Isn't that tantamount to a dismissal of the complaint?
Counsel: It certainly is your honor. That's the reality of life, that's what it is...
Audio tape: Transcript of Oral Arguments in Penn West v. Littman, (Sep. 15, 2003) at 093 (emphasis added).
Under further questioning, counsel for Penn West held to this position:
The Court:... What's the legal significance of the August 19, 1999 order of Judge Bloch ordering that the case be closed?
Counsel: It closes the case.
The Court: What's the legal significance of that?
Counsel: The case is over. The case is over.
What the case does. What the order does... The Court: Are you sure you want to say... Is the case over or is it just an administrative closing?
Id. at 111. Even after this suggestion that counsel might not "want **38 to say" that the August 19 order sig- nified that "the case was over," counsel for Penn West continued to maintain the position that the August 19 or- der was a final order from which relief should have been granted under
371 F.3d 118, *132; 2004 U.S. App. LEXIS 11522, **38
Page 16
*132 Rule 60(b). See Audio tape: Transcript of Oral
Arguments in Penn West v. Littman, (Sep. 15, 2003) at
163 ("I am appealing the District Court's application of
60(b)(2) because I suggest that my motion makes it pretty clear that there is a denial of due process."). Id. at 163
(emphasis added).
II.
In my view, the District Court's order of August 19,
1999, was exactly what the Court and the parties under- stood it to be: an order dismissing the case. The fact that the order did not use the correct terminology is un- fortunate but not dispositive. If the dismissal was with- out prejudice, see Fed. R. Civ. Proc. 41(a)(2), the order nevertheless removed the case from the District Court's docket, and Penn West could not restore the case to the docket simply by moving for such relief. Rather, Penn West would have to refile its complaint, assuming that its claims, which date from the late 1980s and early 1990s,
**39 were not time-barred.
Alternatively, if the dismissal eventually ripened into a dismissal with prejudice when Penn West stood pat, cf. Berke v. Bloch, 242 F.3d 131 (3d Cir. 2001)(conditional dismissal became dismissal with prejudice when parties engaged in conduct "akin to standing on their complaint"), the order was final; Penn West's motion was properly cat- egorized by the District Court as an order for relief under Fed. R. Civ. Proc. 60(b); and because Penn West cannot qualify for such relief, the order denying its Motion to List the Case for Trial and For Other Relief should be affirmed.
The majority, however, concludes, contrary to the un- derstanding of the District Court and the parties, that the case was never dismissed but merely placed on hold - apparently indefinitely - and that therefore Penn West is entitled to revive the case, unless it is equitably barred from doing so. The majority cites nothing in the Federal Rules or in case law that supports this result, and I see no justification for the majority's approach. When a dispute arises as to whether an ambiguously worded order is in effect a dismissal, we should **40 take a practical ap-
proach. If it appears that the order was intended to have the same effect as a dismissal and was understood by all concerned as having the same effect as a dismissal, the order should be treated as such.
An example of this approach is provided by Delgrosso v. Spang and Co., 903 F.2d 234 (3d Cir. 1990). The order in that case stated:
IT IS HEREBY ORDERED
that the Clerk of Court mark the above cap- tion case closed. Nothing in this order shall be considered a dismissal or disposition of this matter and, should further proceedings in it become necessary or desirable, either party may initiate it in the same manner as if this order had not been entered.
Id. at 236. We did not hold that this order was inter- locutory simply because it did not state that the case was dismissed. Rather, we analyzed the practical effect of the order and observed:
The order in this case permits reinstatement and contemplates the possibility of future proceedings. The order does not purport to end litigation on the merits and the parties agree that it does not determine any issues or resolve the entire case. We recognize that the **41 conduct of the district court raises the question whether the order effectively, if not expressly, brings the case to a close. On balance, however, we believe that the order is not final.
Id. Other courts of appeals have taken a similar tack. See, e.g., American Heritage Life Ins. Co. v. Orr, 294 F.3d 702,
707-08 (5th Cir. 2002), cert. denied, 537 U.S. 1106, 154
L. Ed. 2d 775,
371 F.3d 118, *133; 2004 U.S. App. LEXIS 11522, **41
Page 17
*133 123 S. Ct. 871 (2003); Corion Corp. v. Chen, 964
F.2d 55, 56 (1st Cir. 1992).
The order involved here is nothing like the "adminis- trative closing" orders that the majority discusses. As the majority notes, those orders typically state that the parties may restore the case to the docket if further action is re- quired. See Maj. Op. at 10. See also Mercer v. Allegheny Ludlum Corp., 132 F.R.D. 38, 38-39 (W.D. Pa. 1990), aff'd, 931 F.2d 50 (3d Cir. 1991(describing order gener- ally entered in the Western District of Pennsylvania to accomplish a mere "administrative closing"). The August
19, 1999, order in this case contained no similar language and, as noted, it recited that there were "no further matters pending before the Court." **42
The majority argues that the August 19 order was not a final order, but this argument does not support vacatur of the order denying the Motion to List the Case for Trial and For Other Relief. First, even if the August 19 order never ripened into a dismissal with prejudice and thus never became a final order, it would not follow that Penn West, years later, could restore the case to the District Court's active docket simply by moving to do so. Penn West would have to file a complaint. It did not do so, and therefore the denial of its motion was correct.
Second, if the August 19 order eventually became a dismissal with prejudice, that order resolved all of the claims that Penn West asserted in its complaint and was thus final. Compare Maj. Op. 9 (stating that the this order was not final because it "did not resolve, or even purport to resolve, any of the claims that Penn West presented to the District Court"). Once Penn West's claims were dismissed with prejudice and Penn West failed to appeal, further assertion of those claims was barred, and Penn West was relegated to asserting claims under the settle- ment agreement.
The majority contends that the August 19 order was not final **43 because "there was more for the District Court to do." Maj. Op. 9. The majority elaborates:
The parties had to continue their litigation in both the District Court and the Bankruptcy Court to determine: (1) whether they had in- deed "settled" their case in July 1999, and
(2)(a) if so, the terms of that settlement and whether to approve it, or (b) if not, how to achieve a resolution of their ongoing dispute.
Maj. Op. 9.
This argument confuses the question whether an or- der resolves all the claims that are before a court with the separate and (for present purposes) irrelevant question whether an order resolves all the issues that may arise between the parties in the future. Suppose that the August
19, 1999, order had stated expressly that all the claims in the case were dismissed with prejudice. There would then be no basis for disputing the finality of the order, but dis- agreements might nevertheless arise between the parties regarding the meaning or, indeed, the validity of the settle- ment agreement. The parties might then wish to return to the District Court to litigate those disagreements, but the parities' desire to resume litigation would not undermine the finality **44 of the order of dismissal.
For these reasons, I believe that the majority's analy- sis is incorrect, that the District Court dismissed this case long ago, and that Penn West's motion to restore the case to the active docket was properly denied. The majority's decision is unfair to Penn West's adversaries, and I have some concern about the effect of this decision on other cases. The majority notes that there may be other "cases in
371 F.3d 118, *134; 2004 U.S. App. LEXIS 11522, **44
Page 18
*134 our Circuit in which the last order docketed is an administrative closing order" and that " it is indeed possible that, as a consequence of our holding that the ad- ministrative closing order in our case has no legal signifi-
cance beyond removing the case from the District Court's docket, litigants will return to the courts to re-open their administratively closed cases." Maj. Op. 13-14. I see no justification for creating this danger.
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