Ciralsky v. Central Intelligence Agency

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 31, 2003 Decided January 30, 2004

No. 02-5306

ADAM J. CIRALSKY,

APPELLANT

v.

CENTRAL INTELLIGENCE AGENCY, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 00cv01709)

David H. Shapiro argued the cause for appellant. With

him on the briefs were Edward Tolchin and Janine M.

Brookner.

Ara B. Gershengorn, Attorney, U.S. Department of Justice,

argued the cause for appellees. With her on the brief were

Peter D. Keisler, Assistant Attorney General, Roscoe C. How-

Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.

2

ard, Jr., U.S. Attorney, and Freddi Lipstein, Senior Counsel,

U.S. Department of Justice.

Before: GINSBURG, Chief Judge, GARLAND, Circuit Judge,

and WILLIAMS, Senior Circuit Judge.

Opinion for the court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge: Adam J. Ciralsky appeals from

the district court’s dismissals without prejudice of both his

complaint and his lawsuit against his former employer, the

Central Intelligence Agency. The court ordered the dismiss-

als on the ground that the complaint did not contain ‘‘a short

and plain statement of the claim,’’ as required by Federal

Rule of Civil Procedure 8(a)(2). Ciralsky also challenges the

district court’s denial of his subsequent motions under Rules

59(e) and 15(a) to alter the court’s judgment and to amend his

complaint. He argues that, due to a statute of limitations

problem, the dismissals without prejudice effectively amount-

ed to dismissals with prejudice. Although we do not find that

the district court abused its discretion, we remand to permit

that court to decide whether, in light of the limitations

problem, the plaintiff should be given another opportunity to

amend his complaint.

I

On December 13, 1999, Ciralsky was terminated from his

job as a lawyer for the Central Intelligence Agency (CIA).

On July 19, 2000, Ciralsky filed suit against the CIA, the

Federal Bureau of Investigation, and nine of their employees

and agents, alleging that he had been ‘‘interrogated, ha-

rassed, surveilled and terminated from his employment with

the CIA solely because he is a Jew and practices the Jewish

religion.’’ Compl. at 3. The complaint alleged violations of

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e–2

et seq. (Title VII); the Privacy Act, 5 U.S.C. § 552a; the

Freedom of Information Act, 5 U.S.C. § 552; the Foreign

Intelligence Surveillance Act, 50 U.S.C. § 1801 et seq.; 42

U.S.C. §§ 1985, 1986; the First, Fourth, and Fifth Amend-

ments to the Constitution; and the common law of contract.

3

Ciralsky’s initial complaint was 119 pages long and con-

tained 367 numbered paragraphs. On August 21, 2000, the

defendants moved to strike the complaint under Federal Rule

of Civil Procedure 8(a) because it did not contain ‘‘a short and

plain statement of the claim.’’ FED. R. CIV. P. 8(a)(2). The

district court granted the defendants’ motion on February 27,

2001, finding that the complaint was ‘‘filled with a mass of

details, most of which are not required to provide the defen-

dants with adequate notice of the plaintiff’s claims.’’ Ciralsky

v. CIA, Mem. & Order at 5 (D.D.C. Feb. 27, 2001) [hereinaf-

ter Feb. 2001 Mem. & Order]. The court ordered the plain-

tiff to ‘‘eliminate[ ]’’ the ‘‘excess,’’ and gave him leave to file,

within 21 days, an amended complaint ‘‘that complies with

Rule 8(a)(2).’’ Id. at 8–9.

Ciralsky timely complied with the district court’s order,

filing his first amended complaint on March 20, 2001. The

amended complaint was 61 pages long and contained 105

paragraphs. On April 2, 2001, the defendants moved to

dismiss the action with prejudice, again for failure to comply

with Rule 8(a), arguing that ‘‘the amended complaint is

largely the same as the initial complaint, except for format-

ting changes and one substantial deletion.’’ Defs.’ Mot. to

Dismiss at 2.

On December 28, 2001, the district court found that the

‘‘plaintiff’s amended complaint still fatally suffers from an

excess of unnecessary evidentiary detail.’’ Ciralsky v. CIA,

Mem. Op. at 1 (D.D.C. Dec. 28, 2001) [hereinafter Dec. 2001

Mem. Op.]. It ordered that the amended complaint be dis-

missed and further granted the defendants’ motion to dismiss

the action. Ciralsky v. CIA, Order at 1 (D.D.C. Dec. 28,

2001) [hereinafter Dec. 2001 Order]. Although the court

denied the defendants’ request that the dismissal be ‘‘with

prejudice,’’ it warned Ciralsky ‘‘that should he re-file his

complaint in a form that still does not comply with Rule 8, my

next dismissal will be with prejudice.’’ Dec. 2001 Mem. Op.

at 8.

In January 2002, Ciralsky moved to alter or amend the

judgment pursuant to Federal Rule of Civil Procedure 59(e),

and for leave to file a second amended complaint pursuant to

4

Rule 15(a). As grounds for the motion to alter the judgment,

Ciralsky contended that he ‘‘may be unfairly prejudiced if he

is not allowed to file a second amended complaint as the

statute of limitations may be deemed to have run on some of

his claims if he is not allowed to proceed.’’ Pl.’s Mot. to Alter

or Amend J. at 1. At the same time, Ciralsky attached a 28–

page second amended complaint and moved for leave to file it

pursuant to Rule 15(a).

On August 30, 2002, the district court denied Ciralsky’s

motion to alter or amend the judgment, finding no manifest

injustice. The court explained that Ciralsky had offered ‘‘no

substantiation, detail or supporting citations’’ for his concerns

about the statute of limitations. Ciralsky v. CIA, Mem. Op.

& Order at 3 (D.D.C. Aug. 30, 2002) [hereinafter Aug. 2002

Mem. Op. & Order]. Moreover, the court noted that Ciralsky

had never previously alerted it to a possible time bar nor

‘‘indicated any desire to amend the complaint before this case

was dismissed.’’ Id. at 3–4. The court stated that ‘‘[m]ani-

fest injustice does not exist where, as here, a party could have

easily avoided the outcome, but instead elected not to act

until after a final order had been entered.’’ Id. at 4. Having

denied the Rule 59(e) motion to alter the judgment, the

district court denied the plaintiff’s Rule 15(a) motion to file an

amended complaint as moot. Id.

II

We begin with a question of appellate jurisdiction. This

court has jurisdiction over appeals from final decisions of the

district courts. 28 U.S.C. § 1291. The government’s brief

states that ‘‘it is not clear’’ whether we have jurisdiction to

review the district court’s December 2001 decision granting

the defendants’ motion to dismiss. Appellees’ Br. at 1. That

uncertainty, the government says, arises from the court’s

statement that the dismissal was ‘‘without prejudice,’’ not-

withstanding that the court also denominated its decision as a

‘‘final appealable order.’’ Dec. 2001 Order.

The dismissal with prejudice of either a complaint or an

action is final and appealable. See, e.g., Heffernan v. Hunter,

5

189 F.3d 405, 408 (3d Cir. 1999); Karim-Panahi v. Los

Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988).

However, courts often regard the dismissal without prejudice

of a complaint as ‘‘not final, and thus not appealable under 28

U.S.C. § 1291, because the plaintiff is free to amend his

pleading and continue the litigation.’’ Hoskins v. Poelstra,

320 F.3d 761, 763 (7th Cir. 2003); see also WMX Tech., Inc. v.

Miller, 104 F.3d 1133, 1136 (9th Cir. 1997); 19 JAMES W.

MOORE, MOORE’S FEDERAL PRACTICE § 201.14 (3d ed. 2003)

[hereinafter MOORE’S].1 The dismissal without prejudice of an

action (or ‘‘case’’), by contrast, is a different matter. As the

Supreme Court said in United States v. Wallace & Tiernan

Co.: ‘‘That the dismissal was without prejudice to filing

another suit does not make the cause unappealable, for denial

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

1 The circuits have adopted a number of exceptions to the general

rule that complaints that are dismissed without prejudice are not

appealable. See, e.g., De’Lonta v. Angelone, 330 F.3d 630, 633 n.3

(4th Cir. 2003) (holding that, although dismissal of a complaint

‘‘without prejudice is not normally appealable,’’ it is appealable

when ‘‘the grounds provided by the district court for dismissal

clearly indicate that no amendment of the complaint could cure the

defects in the plaintiff’s case’’) (internal quotation marks omitted);

Welch v. Folsom, 925 F.2d 666, 668 (3d Cir. 1991) (‘‘In general, TTT

orders dismissing complaints without prejudice are not final within

the meaning of Section 1291 because the plaintiff may cure the

deficiency and refile the complaintTTTT If the plaintiff cannot cure

the defect TTT or elects to stand on the dismissed complaint,

however, TTT the order of dismissal is final and appealable.’’); see

generally 19 MOORE’S § 202.11[1][a]. Perhaps the most significant

exception, which might well be relevant here, see infra Part III.B,

is when the statute of limitations would bar amendment or refiling.

See, e.g., Ahmed v. Dragovich, 297 F.3d 201, 207 (3d Cir. 2002)

(holding that, although ‘‘the principle is well-settled TTT that an

order dismissing a complaint without prejudice is not a final and

appealable order, that principle does not apply where the statute of

limitations has run’’) (internal quotation marks and alteration omit-

ted); Ordower v. Feldman, 826 F.2d 1569, 1572 (7th Cir. 1987)

(finding dismissal without prejudice appealable because, if plaintiffs

filed a new complaint, their claims would be dismissed as untimely).

6

District Court was concerned.’’ 336 U.S. 793, 794–95 n.1

(1949). Most courts that have considered the question have

followed the Supreme Court’s lead, holding that the dismissal

of an action — whether with or without prejudice — is final

and appealable.2 We, of course, will do the same. Cf. United

States v. Mitchell, 551 F.2d 1252, 1260 n.35 (D.C. Cir. 1976)

(finding that an appeal of a denial without prejudice of a

petition was appropriate under 28 U.S.C. § 1291, citing Wal-

lace & Tiernan).

If the district court did in fact dismiss Ciralsky’s action, it

thereby ended his case. Although it is true that he may be

able to re-file because the dismissal was without prejudice,3

that does not change the fact that, in the absence of such an

affirmative act on Ciralsky’s part, the case is at an end. See

Rinieri v. News Syndicate Co., 385 F.2d 818, 821 (2d Cir.

1967) (‘‘Although a dismissal without prejudice permits a new

action (assuming the statute of limitations has not run) with-

out regard to res judicata principles, the order of dismissal,

nevertheless, is a final order from which an appeal lies.’’).

2 See Mirpuri v. Act Mfg., 212 F.3d 624, 629 (1st Cir. 2000); De

Tie v. Orange County, 152 F.3d 1109, 1111 (9th Cir. 1998); Trippe

Mfg. Co. v. American Power Conversion Corp., 46 F.3d 624, 626

(7th Cir. 1995); Justice v. United States, 6 F.3d 1474, 1481 (11th

Cir. 1993); Car Carriers, Inc. v. Ford Motor Co., 789 F.2d 589, 591

n.4 (7th Cir. 1986); Elfenbein v. Gulf & W. Indus., 590 F.2d 445,

448 (2d Cir. 1978); see also 15A CHARLES ALAN WRIGHT & ARTHUR

MILLER, FEDERAL PRACTICE AND PROCEDURE § 3914.6, at 533 (2d ed.

1992) [hereinafter WRIGHT & MILLER] (‘‘Many cases reflect the rule

that a dismissal without prejudice is appealable as a final judg-

ment.’’). But see Trent v. Dial Medical of Florida, Inc., 33 F.3d

217, 220 (3d Cir. 1994) (‘‘[D]ismissals without prejudice have been

held to be final and appealable if they end the suit so far as the

District Court was concerned, although we have indicated that such

dismissals may not constitute final orders until the party seeking

relief renounces any intention to reinstate litigation.’’) (internal

quotation marks and citations omitted).

3 But see infra Part III.B (noting Ciralsky’s argument that,

although the dismissal was without prejudice, the effect was to bar

his Title VII claims under the statute of limitations).

7

Analogously, the fact that a plaintiff may suspend the finality

of a dismissal with prejudice by filing a Rule 59 motion to

reconsider does not affect the finality of that dismissal in the

absence of such a motion. See 12 MOORE’S §§ 59.32[1],

59.53[1]; 19 MOORE’S § 202.11[1][a].

Unfortunately, it is not always clear whether a district

court intended its order to dismiss the action or merely the

complaint.4 This case presents some difficulties in that re-

gard, as the court’s December 2001 Memorandum Opinion

spoke several times of dismissing the complaint. Dec. 2001

Mem. Op. at 1, 8. The court’s attached order, however, both

dismissed the complaint and, in a separate ordering para-

graph, granted the defendants’ April 2, 2001 motion to dis-

miss. See Dec. 2001 Order. That motion had expressly

asked the court ‘‘to dismiss this action.’’ Defs.’ Mot. to

Dismiss (emphasis added). Moreover, the court’s December

2001 Order expressly stated that it was ‘‘a final appealable

order.’’ Dec. 2001 Order. Although that characterization

cannot bind us, it does indicate that the district court thought

the order had terminated the action.

That the court intended its December 2001 Order to dis-

miss the action is also evidenced by the course of the litiga-

tion over the defendants’ earlier motion to strike filed on

August 21, 2000. In contrast to their April 2001 motion to

dismiss the action, the defendants’ earlier motion had sought

only ‘‘an order striking the complaint.’’ Defs.’ Mot. to Strike

(emphasis added).5 In granting the motion to strike, the

court drew the distinction that is important here: it gave

4 See, e.g., Hoskins, 320 F.3d at 764 (noting that ‘‘[d]istrict judges

can avoid [such] problems by distinguishing consistently between

dismissing a pleading and dismissing the suit’’); Elfenbein, 590 F.2d

at 448 (interpreting district court’s dismissal of complaint without

prejudice as intending to terminate the action).

5 Although the defendants denominated their motion as one to

‘‘strike’’ the complaint, they made no reference to the rule that

governs motions to strike, see FED. R. CIV. P. 12(f), and their motion

might more properly be viewed as one to dismiss the complaint.

See 5A WRIGHT & MILLER § 1380, at 644–46 (2d ed. 1990).

8

Ciralsky 21 days in which to file an amended complaint, but

warned that, ‘‘[s]hould plaintiff fail to file a proper amended

complaint within that time, the case will be dismissed.’’ Feb.

2001 Mem. & Order at 9 (emphasis added). Such a dismissal

appears to be precisely what the court had in mind when, on

December 28, 2001, it determined that Ciralsky had failed to

file a proper amended complaint.

Further evidence that the district court regarded its De-

cember 2001 order as dismissing the action is found in the

course of the litigation over Ciralsky’s subsequent motion for

leave to file a second amended complaint pursuant to Rule

15(a). In denying that motion, the court ruled that freely

amending the original complaint was no longer an option: the

court could not, it said, grant leave to amend unless Ciralsky

first persuaded it ‘‘to vacate the judgment of dismissal’’

pursuant to Rule 59(e). Aug. 2002 Mem. Op. & Order at 4;

compare Feb. 2001 Mem. & Order at 8–9 (granting motion to

strike complaint and giving plaintiff 21 days to amend). And

because the court ultimately found Ciralsky’s Rule 59(e)

motion unpersuasive, it denied his motion to amend the

complaint as moot. Aug. 2002 Mem. Op. & Order at 4. In so

doing, the court made clear that it had dismissed the case in

December 2001, and that because it refused to vacate that

dismissal, the complaint was no longer susceptible to amend-

ment in August 2002.

We therefore conclude that the district court’s December

2001 order dismissed Ciralsky’s action, and not merely his

complaint. Accordingly, that dismissal was final and appeal-

able.6 Our jurisdiction over that final decision extends as

well to the interlocutory rulings that preceded it, including in

particular the February 2001 order granting the motion to

strike the complaint. See, e.g., Kirkland v. National Mort-

gage Network, Inc., 884 F.2d 1367, 1369–70 (11th Cir. 1989)

(holding that a district court order granting dismissal without

6 Ciralsky’s timely filing of a motion to alter the judgment under

Rule 59(e) tolled the time for appeal of the December 2001 decision

until the district court disposed of the Rule 59(e) motion. See FED.

R. APP. P. 4(a)(4)(A)(iv).

9

prejudice ‘‘is final and appealable TTT , and as a final judg-

ment it incorporates and brings up for review the preceding

nonfinal order’’); 15A CHARLES ALAN WRIGHT & ARTHUR MIL-

LER, FEDERAL PRACTICE AND PROCEDURE § 3905.1, at 249 (2d ed.

1992) [hereinafter WRIGHT & MILLER] (‘‘[O]nce appeal is taken

from a truly final judgment that ends the litigation, earlier

rulings generally can be reviewed.’’).7 We likewise have

jurisdiction over the district court’s subsequent decision deny-

ing the plaintiff’s Rule 59(e) motion. See, e.g., GenCorp, Inc.

v. American Int’l Underwriters, 178 F.3d 804, 832–33 (6th

Cir. 1999) (‘‘[A]s a general matter, the appeal from the denial

of a Rule 59(e) motion is treated as an appeal from the

underlying judgment itself.’’); 12 MOORE’S § 59.53[1].

III

Having resolved our appellate jurisdiction, we now turn to

Ciralsky’s challenges to the decisions of the district court. In

Part III.A, we consider the plaintiff’s attacks on the orders

that first struck the complaint and then dismissed the action

under Rule 8(a). In Part III.B, we consider Ciralsky’s objec-

tions to the denial of his motions to alter the judgment and to

amend the complaint under Rules 59(e) and 15(a). We review

the district court’s decisions only to determine whether the

court abused its discretion. See Anyanwutaku v. Moore, 151

F.3d 1053, 1058 (D.C. Cir. 1998) (Rule 59(e)); Firestone v.

Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (same);

McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (Rule

8(a)); Kuehl v. FDIC, 8 F.3d 905, 908 (1st Cir. 1993) (same).

A

Federal Rule 8(a) provides that a pleading ‘‘shall contain

TTT (2) a short and plain statement of the claim showing that

the pleader is entitled to relief.’’ FED R. CIV. P. 8(a)(2). Rule

8(e) further provides that ‘‘[e]ach averment of a pleading shall

7 Neither side suggests that the February 2001 order was itself a

final appealable order. Unlike the December 2001 order, the

February order expressly granted the plaintiff leave to amend and

did not dismiss the action.

10

be simple, concise, and direct.’’ FED. R. CIV. P. 8(e)(1).

‘‘Taken together, Rules 8(a) and 8(e)(1) underscore the em-

phasis placed on clarity and brevity by the federal pleading

rules.’’ In re Westinghouse Sec. Litig., 90 F.3d 696, 702 (3d

Cir. 1996) (quoting 5 WRIGHT & MILLER § 1217, at 169 (2d ed.

1990)). Enforcing these rules is largely a matter for the trial

court’s discretion, 5 WRIGHT & MILLER § 1217, at 175 & n.8

(2d ed. 1990); Rule 41(b) authorizes the court to dismiss

either a claim or an action because of the plaintiff’s failure to

comply with the Federal Rules ‘‘or any order of court,’’ FED.

R. CIV. P. 41(b).

The district court granted the defendants’ motion to strike

Ciralsky’s initial complaint on the ground that it was ‘‘neither

short nor plain,’’ but rather a ‘‘repetitive, discursive and

argumentative account of the alleged wrongs suffered by the

plaintiff.’’ Feb. 2001 Mem. & Order at 8; see supra note 5.

As the initial complaint weighed in at 119 pages and 367

numbered paragraphs, that was hardly a harsh judgment.

Nor was the court’s disposition: the court did not dismiss the

case, but rather gave the plaintiff 21 days to ‘‘eliminate[ ]’’ the

‘‘excess’’ and to file an amended complaint ‘‘that complies with

Rule 8(a)(2).’’ Id. at 8–9. Moreover, the court gave the

plaintiff fair warning that, ‘‘[s]hould plaintiff fail to file a

proper amended complaint within that time, the case will be

dismissed.’’ Id. at 9. There is nothing about the court’s

decision to strike the initial complaint that suggests an abuse

of its considerable discretion over such matters.

Within the specified 21 days, Ciralsky filed a first amended

complaint. As we have discussed, this time the court did not

simply strike the complaint; rather, it granted the defen-

dants’ motion to dismiss the action. Dec. 2001 Order. Al-

though Ciralsky had reduced the pleading to 61 pages and

105 paragraphs, the court found that the ‘‘amended complaint

[was] still prolix and burdened with a bloated mass of unnec-

essary detail.’’ Dec. 2001 Mem. Op. at 1. Referring to the

defendants’ allegations that the ‘‘plaintiff has utilized format-

ting changes and has merged paragraphs to create the illu-

sion of brevity,’’ the court concluded: ‘‘At best, plaintiff’s

approach to amending the complaint was just faulty. At

11

worst, it was a transparent effort to soften the defective

appearance of the complaint without doing the work needed

to make it comply with Rule 8.’’ Id. at 8.

Once again, the court had reasonable grounds for its deci-

sion. As the defendants pointed out, a significant portion of

the reduction in pages and paragraphs was accomplished by

mere formatting changes: paragraphs were combined (run

together) and blank space eliminated. Moreover, the com-

plaint still remained quite long — a point that is more than

simply a matter of aesthetics. As the Second Circuit noted in

Salahuddin v. Cuomo, ‘‘ ‘[u]necessary prolixity in a pleading

places an unjustified burden on the court and the party who

must respond to it because they are forced to select the

relevant material from a mass of verbiage.’ ’’ 861 F.2d 40, 42

(2d Cir. 1988) (quoting 5 WRIGHT & MILLER § 1281, at 365

(1969)).

Nonetheless, we would be concerned had the district court

reacted to the amended complaint not only by dismissing the

action, but by dismissing it with prejudice as the defendants

requested. Such a dismissal would have constituted a harsh

sanction, as it would have imposed the bar of res judicata

against any future filing. See Elmore v. Henderson, 227 F.3d

1009, 1011 (7th Cir. 2000) (‘‘[A] suit that has been dismissed

with prejudice cannot be refiled; the refiling is blocked by the

doctrine of res judicata.’’). For that reason, ‘‘it will generally

be an abuse of discretion to deny leave to amend when

dismissing a nonfrivolous original complaint on the sole

ground that it does not constitute the short and plain state-

ment required by Rule 8.’’ Salahuddin, 861 F.2d at 42; see

Micklus v. Greer, 705 F.2d 314, 317 n.3 (8th Cir. 1983) (noting

that ‘‘usually when a plaintiff’s complaint is dismissed for

failure to comply with Rule 8(a), that dismissal is to be with

leave to amend,’’ because when ‘‘Rule 8(a) dismissals are

expressly with prejudice, they may have res judicata effect’’);

Bertucelli v. Carreras, 467 F.2d 214, 215 (9th Cir. 1972)

(noting that ‘‘ample opportunity for amendment should be

provided in all except the most unusual cases’’).

12

It is not clear that such a harsh sanction would have been

deserved in this case. After all, Rule 8 does not require a

‘‘short and plain complaint,’’ but rather a ‘‘short and plain

statement of the claim.’’ FED. R. CIV. P. 8(a)(2) (emphasis

added). Indeed, Rule 8(e)(2) provides that: ‘‘A party may set

forth two or more statements of a claim or defense alterna-

tivelyTTTT A party may also state as many separate claims

or defenses as the party has regardless of consistency and

whether based on legal, equitable, or maritime grounds.’’

FED. R. CIV. P. 8(e)(2). Moreover, it is ‘‘each averment of a

pleading’’ that Rule 8(e)(1) states ‘‘shall be simple, concise,

and direct’’ — not each pleading itself. The defendants know

these rules full well; the government is no foe of lengthy

complaints when it finds itself in the position of plaintiff. See,

e.g., United States v. Philip Morris, Inc., 116 F. Supp. 2d 131

(D.D.C. 2000) (government complaint consisting of 88 pages

and 211 paragraphs with attached 43–page appendix); United

States v. Bonanno, 683 F. Supp. 1411 (E.D.N.Y 1988) (70–

page government complaint accompanied by 250–page binder

of exhibits).

Although the first amended complaint did indeed remain

long, there is no dispute that Ciralsky deleted the initial

complaint’s entire ‘‘Statement of Facts’’ section — a total of

43 pages — as well as parts of other sections.8 A significant

portion of the remaining length was due to the sheer number

of claims asserted: with 20 separate claims (under nine

statutory and constitutional provisions), the 40–page ‘‘State-

ment of Claims’’ section averaged only 2 pages per claim.

Nor did the amended complaint exhibit other traits that

often justify dismissals under Rule 8. The government does

8 Compare Michaelis v. Nebraska State Bar Ass’n, 717 F.2d 437,

438–39 (8th Cir. 1983) (noting that ‘‘[o]rdinarily dismissal of a

plaintiff’s complaint for failure to comply with Rule 8 should be with

leave to amend,’’ but affirming dismissal with prejudice where

plaintiff, after an initial dismissal with leave to amend, ‘‘refused

persistently to comply’’ by twice refiling substantially longer com-

plaints, the ‘‘style and prolixity of [which] would have made an

orderly trial impossible’’).

13

not contend that the complaint was unclear or that it failed to

give the defendants fair notice of the claims against them.9

Similarly, the government does not contend that the com-

plaint was frivolous on its face. See Salahuddin, 861 F.2d at

43 (vacating Rule 8(a) dismissal and remanding to permit

amendment because plaintiff’s ‘‘allegations are sufficiently

clear and specific to give the defendants notice of ways in

which they are claimed to have violated [plaintiff’s] rights,

and one cannot say that TTT [plaintiff] can prove no set of

facts that would entitle him to relief’’).10

But we need not tarry over these concerns, because the

district court did not dismiss the complaint and action with

prejudice. See Dec. 2001 Order (stating that dismissal was

‘‘without prejudice’’). Nor did the plaintiff give the court any

reason to suspect that its dismissal without prejudice could

be — as we discuss in Part III.B — the functional equivalent

of a dismissal with prejudice because the statute of limitations

had run on at least some of the claims. Ciralsky’s attorneys

did not even mention the possibility of a limitations problem

in their opposition to the defendant’s motion to dismiss. See

Pl.’s Opp. to Mot. to Dismiss. For its part, the court made

clear that it thought that the plaintiff could and would re-file,

warning Ciralsky ‘‘that should he re-file his complaint in a

form that still does not comply with Rule 8, my next dismissal

will be with prejudice.’’ Dec. 2001 Mem. Op. at 8.

9 See McHenry, 84 F.3d at 1177 (noting that a complaint may be

struck under Rule 8 if it ‘‘is so vague or ambiguous that a party

cannot reasonably be required to frame a responsive pleading, and

the judge has already issued an order for a more definite statement

which order was not complied with’’) (internal quotation marks

omitted); Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995)

(declaring that Rule 8(a) dismissal ‘‘is usually reserved for those

cases in which the complaint is so confused, ambiguous, vague, or

otherwise unintelligible that its true substance, if any, is well

disguised’’).

10 See also Simmons, 49 F.3d at 86–87 (declaring that, rather

than dismiss a complaint that fails to comply with Rule 8(a), courts

should give leave to amend, especially when the complaint states an

intelligible claim that is not frivolous on its face).

14

In short, from the perspective of the court at the time it

dismissed Ciralsky’s amended complaint and action, there was

nothing about that dismissal that would have barred the

plaintiff from correcting the complaint’s defects and filing a

new lawsuit. Viewed from that perspective, we cannot regard

the dismissal as an abuse of discretion. The amended com-

plaint could certainly have stood further shortening. And

doing so would not have reduced Ciralsky’s chances of suc-

cess on the merits, as the evidentiary detail in the initial

complaint was plainly not necessary for the case’s survival.

Indeed, all that a Title VII complaint has to say to survive

dismissal under Rule 12(b)(6) is: ‘‘The plaintiff was terminat-

ed from his job because of his religion.’’ See Sparrow v.

United Air Lines, Inc., 216 F.3d 1111, 1115 (D.C. Cir. 2000);

see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508, 510–

15 (2002). Accordingly, we detect no abuse of discretion

either in the district court’s grant of the motion to strike the

initial complaint or in its grant of the subsequent motion to

dismiss the amended complaint and action.

B

We next examine the district court’s denial of Ciralsky’s

Rule 59(e) motion to alter the judgment of dismissal, and of

his Rule 15(a) motion to file a second amended complaint.

‘‘A Rule 59(e) motion is discretionary and need not be

granted unless the district court finds that there is an inter-

vening change of controlling law, the availability of new

evidence, or the need to correct a clear error or prevent

manifest injustice.’’ Firestone, 76 F.3d at 1208 (internal

quotation marks omitted); accord Anyanwutaku, 151 F.3d at

1057–58. As we have discussed above, we review district

court denials of Rule 59(e) motions only for abuse of discre-

tion. Anyanwutaku, 151 F.3d at 1058; Firestone, 76 F.3d at

1208. Ciralsky argues that the court abused its discretion in

denying his motion to alter the judgment of dismissal because

that dismissal — notwithstanding that it was nominally with-

out prejudice to refiling — had the effect of permanently

terminating his principal cause of action. It had that effect,

15

Ciralsky contends, because of the operation of the statute of

limitations for filing claims under Title VII. The plaintiff

appears to be correct in the latter respect.

When a complaint is timely filed, the statute of limitations

is tolled, and subsequent amendments to the complaint are

also regarded as timely. See FED. R. CIV. P. 15(c) (providing

that an ‘‘amendment of a pleading relates back to the date of

the original pleading’’ under specified circumstances); Ahmed

v. Dragovich, 297 F.3d 201, 207–08 (3d Cir. 2002). However,

once a suit is dismissed, even if without prejudice, ‘‘the tolling

effect of the filing of the suit is wiped out and the statute of

limitations is deemed to have continued running from when-

ever the cause of action accrued, without interruption by that

filing.’’ Elmore, 227 F.3d at 1011.11 In short, ‘‘when a suit is

dismissed without prejudice, the statute of limitations is

deemed unaffected by the filing of the suit, so that if the

statute of limitations has run the dismissal is effectively with

prejudice.’’ Id. at 1011.12

Under Title VII and the relevant regulations, the limita-

tions period for federal employees depends in part on the

manner in which the complainant exhausted his administra-

tive remedies. See 42 U.S.C. § 2000e–16(c); 29 C.F.R.

11 Accord Chico–Velez v. Roche Prod., Inc., 139 F.3d 56, 59 (1st

Cir. 1998); Johnson v. Nyack Hosp., 86 F.3d 8, 11 (2d Cir. 1996);

Garfield v. J.C. Nichols Real Estate, 57 F.3d 662, 666 (8th Cir.

1995); Lambert v. United States, 44 F.3d 296, 298 (5th Cir. 1995);

Dade County v. Rohr Indus., Inc., 826 F.2d 983, 989 (11th Cir.

1987); Cardio–Medical Assoc. v. Crozer–Chester Med. Ctr., 721

F.2d 68, 77 (3d Cir. 1983). Of course, if a suit is dismissed with

prejudice, ‘‘any issue concerning the bar of the statute of limitations

to the refiling of the suit will be moot because a suit that has been

dismissed with prejudice cannot be refiled; the refiling is blocked

by the doctrine of res judicata.’’ Elmore, 227 F.3d at 1011.

12 See Ahmed, 297 F.3d at 207; Duffy v. Ford Motor Co., 218

F.3d 623, 629 (6th Cir. 2000); Hatchet v. Nettles, 201 F.3d 651, 652–

53 (5th Cir. 2000); Ordower, 826 F.2d at 1572; Green v. Humphrey

Elevator & Truck Co., 816 F.2d 877, 878 n.4 (3d Cir. 1987); Gray v.

Fidelity Acceptance Corp., 634 F.2d 226, 227 (5th Cir. 1981); Bragg

v. Reed, 592 F.2d 1136, 1138 (10th Cir. 1979).

16

§§ 1614.105, 1614.407. Although it is unclear from the appel-

late record whether or how Ciralsky exhausted his adminis-

trative remedies at the CIA, the plaintiff represents that the

relevant statutory provision is that which requires a com-

plainant to file suit within 90 days of receipt of notice of final

action taken by the agency on his administrative complaint.

See 42 U.S.C. § 2000e–16(c); Elmore, 227 F.3d at 1010.

Since under any scenario those 90 days had run by the time

the court dismissed Ciralsky’s suit on December 28, 2001, it

does appear that by removing the tolling effect of Ciralsky’s

original complaint, the dismissal effectively brought an end to

the plaintiff’s Title VII claims.13 Ciralsky’s contention is that

such a result is too harsh a consequence for merely failing to

sufficiently reduce the size of his complaint, and hence works

a ‘‘manifest injustice’’ that justifies the granting of his motion

to alter the judgment of dismissal.

Had Ciralsky set forth this argument with clarity to the

district court, he might have won the day. But he did not.

Plaintiff’s motion to alter the judgment devoted only two

sentences to the statute of limitations, neither of which even

cited a statutory section. All Ciralsky told the court was that

‘‘plaintiff may be unfairly prejudiced TTT as the statute of

limitations may be deemed to have run on some of his claims

if he is not allowed to proceed based on a complaint which

relates back to the initial filing date for this matter.’’ Pl.’s

Mot. to Alter or Amend J. at 1; see id. at 3.

The district court rejected Ciralsky’s Rule 59(e) motion on

two grounds. First, the court noted that the plaintiff claimed

only that he ‘‘might’’ be barred by the statute of limitations,

‘‘a conclusion for which he offers no substantiation, detail or

13 That further litigation might develop other bars to a re-filed

complaint — including the possibility that the statute of limitations

had run before the original complaint was filed, or that the plaintiff

had failed to timely exhaust his administrative remedies — does not

affect our analysis because the defendants have not raised such

arguments. Similarly, because Ciralsky has not argued it, we do

not consider whether he could overcome a limitations bar by

seeking equitable tolling.

17

supporting citations.’’ Aug. 2002 Mem. Op. & Order at 3.

Second, the court said that, even if there were a statute of

limitations problem, ‘‘[p]laintiff knew, or should have known

TTT that if defendant’s motion to dismiss were granted, he

might be barred from refiling a complaint by the applicable

statute of limitations.’’ Id. at 3–4. ‘‘Yet,’’ the court stressed,

‘‘plaintiff chose not to seek leave to amend before any uniden-

tified limitation period about which he worries ran out.’’ Id.

at 4.

In light of the arguments that Ciralsky actually made to

the district court, we cannot conclude that the court abused

its discretion in finding that a grant of the plaintiff’s motion

was not required to prevent ‘‘manifest injustice.’’ When the

most a plaintiff does is suggest that he ‘‘may be unfairly

prejudiced TTT as the statute of limitations may be deemed to

have run on some of his claims if he is not allowed to

proceed,’’ Pl.’s Mot. to Alter or Amend J. at 1 (emphasis

added), it is hard to fault a court that finds nothing ‘‘mani-

fest’’ about any injustice that might result from a dismissal.

We also cannot find that the district court abused its discre-

tion in concluding that ‘‘[m]anifest injustice does not exist

where, as here, a party could have easily avoided the out-

come, but instead elected not to act until after a final order

had been entered.’’ Aug. 2002 Mem. Op. & Order at 4. By

failing to advise the court in a timely fashion — i.e., before

the court ruled on the motion to dismiss — that there was a

limitations problem and that he was prepared to further

shorten his complaint, Ciralsky forfeited any claim of an

abuse of discretion. Cf. Kattan by Thomas v. District of

Columbia, 995 F.2d 274, 276 (D.C. Cir. 1993) (‘‘Ordinarily

Rule 59 motions [for a new trial or a rehearing] are not

granted by the District Court where they are used by a losing

party to request the trial judge to reopen proceedings in

order to consider a new defensive theory which could have

been raised during the original proceedings.’’).

Because we conclude that the district court did not abuse

its discretion in denying Ciralsky’s Rule 59(e) motion, we

likewise conclude that it did not err thereafter in denying

Ciralsky’s motion for leave to file an amended complaint

18

under Rule 15(a). Rule 15(a) provides that leave to amend

‘‘shall be freely given when justice so requires.’’ As we held

in Firestone, however, once a final judgment has been en-

tered, a court cannot permit an amendment unless the plain-

tiff ‘‘first satisf[ies] Rule 59(e)’s more stringent standard’’ for

setting aside that judgment. Firestone, 76 F.3d at 1208; see

Ahmed, 297 F.3d at 207–08; 6 WRIGHT & MILLER § 1489 (2d

ed. 1990); 3 MOORE’S § 15.12[2]. Since the court declined to

set aside the judgment under Rule 59(e), it properly conclud-

ed that Ciralsky’s motion to amend under Rule 15(a) was

moot.

C

Although we find no abuse of discretion in the district

court’s rulings, we are nonetheless troubled by the fact that

an affirmance of its Rule 59(e) disposition would terminate

this lawsuit, not because of the invalidity of Ciralsky’s claims,

but because the plaintiff’s attorneys failed to satisfy Rule 8(a)

or to advise the court of the consequences of a dismissal. As

we have noted above, the government does not contend that

the plaintiff’s claims are frivolous on their face. And other

things being equal, our ‘‘jurisprudential preference [is] for

adjudication of cases on their merits rather than on the basis

of formalities.’’ Salahuddin, 861 F.2d at 42; see 5 WRIGHT &

MILLER § 1217, at 178 (2d ed. 1990). As the Supreme Court

said in Swierkiewicz v. Sorema N.A.: ‘‘The liberal notice

pleading of Rule 8(a) is the starting point of a simplified

pleading system, which was adopted to focus litigation on the

merits of the claimTTTT ‘The Federal Rules reject the ap-

proach that pleading is a game of skill in which one misstep

by counsel may be decisive to the outcome and accept the

principle that the purpose of pleading is to facilitate a proper

decision on the merits.’ ’’ 534 U.S. at 514 (quoting Conley v.

Gibson, 355 U.S. 41, 48 (1957)).

Nor are we certain that, if the district court were now

advised of the precise nature of the plaintiff’s statute of

limitations problem, it would nonetheless decline to reconsid-

er its Rule 59(e) denial. After all, in expressly dismissing the

action without prejudice, the court plainly thought it was

19

giving the plaintiff one more chance to get things right. See

Dec. 2001 Mem. Op. at 8 (warning that if a re-filed complaint

did not comply with Rule 8, ‘‘my next dismissal will be with

prejudice’’) (emphasis added).

Accordingly, we will follow a path marked out by the First

Circuit in Estate of Solis–Rivera v. United States, 934 F.2d 1

(1st Cir. 1993), and remand the case ‘‘to the same district

judge to allow him to decide whether, given the surfacing of

the statute of limitations problem, he wishes to give plain-

tiff[ ] a further chance by allowing the present action to

proceed,’’ id. at 3, based on Ciralsky’s 28–page proposed

second amended complaint.14 Like the First Circuit, howev-

er, we stress that in remanding the case we are not dictating

any particular result. The district court has wide discretion

in this matter, and we do nothing more than offer the court

the opportunity to reconsider its Rule 59(e) decision in light

of a clearer understanding of the consequences of denial. We

thus ‘‘leave the choice entirely in the hands of the district

court, which may either choose to confirm the ‘death knell’ of

this action TTT or else allow the case to proceed.’’ Id.

IV

For the foregoing reasons, although we find no abuse of

discretion by the district court, we remand the case for

further proceedings consistent with this opinion.

14 There are, to be sure, differences between Solis-Rivera and the

present case. In Solis-Rivera, the district court dismissed the

complaint for failure to prosecute under Federal Rule of Civil

Procedure 41(b), rather than under Rule 8. Unlike plaintiff’s

motion in this case, the plaintiff’s motion to modify the judgment in

Solis-Rivera failed even to suggest a statute of limitations problem.

This, of course, cuts two ways. On the one hand, the fact that the

district court had not known of the problem might be said to

increase the probability that, if so informed, it would decide differ-

ently upon remand. On the other hand, as the First Circuit

acknowledged, its disposition ‘‘might be criticized for overlooking

plaintiffs’ failure to have raised the limitations problem below,’’

since an appellate court ‘‘will not ordinarily consider a matter not

first presented to the district court.’’ Solis-Rivera, 993 F.2d at 3.