Amy Weber v. Frances McGrogan

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 16-4379

______________

AMY WEBER, Individually,

and as Parent, Natural Guardian

and Next Friend on behalf of K.A., a Minor

v.

FRANCES A. MCGROGAN, Individually and as a STATE

actor Judge for the Bergen County Family Court; PETER J.

MELCHIONNE, individually and as a STATE actor Judge

for the Bergen County Family Court; KENNETH J.

SLOMIENSKI, individually and as a STATE actor Judge for

the Bergen County Family Court; GARY N. WILCOX,

individually and as a STATE actor Judge for the Bergen

County Family Court; BONNIE J. MIZDOL, individually and

as a STATE actor Judge for the Bergen County Family Court;

PETER DOYNE, individually and as a STATE actor Judge

for the Bergen County Family Court; MARCELLE NICOLE,

individually and as a STATE actor Law Clerk for the Bergen

County Family Court; GOVENOR CHRIS CHRISTIE,

individually and as STATE actor Governor; SENTATOR

ROBERT MENENDEZ, individually and as STATE actor

Senator; SENATOR NICHOLAS SACCO, individually and

as STATE actor Senator; STATE OF NEW JERSEY;

BERGEN COUNTY FAMILY COURT OF THE

SUPERIOR COURT OF NEW JERSEY; ANTHONY

D'URSO; JOAN GLAESER; BRETT BILLER; RICHARD

COCO; KYONGOK KIM; JULIA DEBELLIS; NINA

AGRAWAL; JEMOUR MADDUX; SARA

MICHAELOWLSKI; PATRICIA SERMABIKIAN;

FAMILIES FIRST; VICTORIA MADDEN; CHILDRENS

AIDS AND FAMILY SERVICES; RACHEL POLAN;

PATRICIA KRYGER; MARIA MAHTANI; CLAIRE

ABEL; DIVISION OF CHILD PROTECTION AND

PERMANENCY f/k/a DYFS; ATTORNEY GENERAL

NEW JERSEY; STATE OF NEW JERSEY BOARD OF

ETHICS; MONIQUE D'ERRICO, Esq.; MARY ZEC, Esq.;

CARYN STALTER, Esq.; YLLINI TORRES; DOLORES

COUNNEELY; RUTH BAZZANO; LOURDES NUNEZ;

DANILLE GONZALEZ; LUIS PADIERNA; CYNTHIA

MCWHITE; VICTORIA SUMMERS; JOAN TAKACS;

MARTHA VAZQUEZ; MARIA GONZALEZ; NICOLLE

MILLER; HAYDEE ZAMORA-DALTON; KELLY

NESTOR; LUKE DRUMMOND; MARISOL NARANJO;

JESSICA MULLIGAN; BERGEN COUNTY DIVISION OF

FAMILY GUIDANCE; JUDITH LEGGET; RESSA

VILLANI; DENNIS CHETEYAN; DR. DANIEL

BROMBERG; DR. DONNA LOBIONDO; SAMSIRI

SOSTRE; VIVIAN CHERN SHNADIMAN; ROBERT

LATIMER; DR. HAROLD GOLDSTEIN; JACQUELINE

KIM SZABO; MICHAEL LAMOLINO, Esq.; ROBYN

VEASEY; ALL ABOUT ME LEARNING CENTER;

MICHAEL CULVER; CONNIE CULVER; DOES #1 THRU

33; AUDREY HEPBURN CHILDREN'S HOUSE; KEYSHA

TYSON; KEITH J. YONOS, Real Party of Interest

Amy Weber,

Appellant

2

______________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 2-14-cv-07340)

District Judge: Hon. Claire C. Cecchi

______________

Argued June 5, 2019

Before: JORDAN, BIBAS, and MATEY, Circuit Judges.

(Filed: September 12, 2019)

Christopher T. Zirpoli, Esq. [ARGUED]

Covington & Burling LLP

One CityCenter

850 Tenth Street, NW

Washington, DC 20001

Court Appointed Amicus Curiae on behalf of Appellant

Gurbir S. Grewal

Thomas P. Lihan, Esq.

Michael R. Sarno, Esq. [ARGUED]

Office of the Attorney General

Division of Law

25 Market Street

Richard J. Hughes Justice Complex

Trenton, New Jersey 08625

Attorneys for Appellees Frances A. McGrogan,

individually and as a STATE Judge for the Bergen

County Family Court

3

Daniel R. Esposito, Esq.

Buckly Theroux Kline

707 State Road

Princeton, NJ 08540

Attorney for Appellees Audrey Hepburn Children’s

House, Brett Biller, Richard Coco, Anthony D’Urso,

Joan Glaeser, Kyongok Kim, Jemour Maddux, Sara

Michaelowlski, Patricia Sermabikian

Robert E. Levy, Esq.

Scarinci & Hollenbeck

1100 Valley Brook Avenue

P.O. Box 790

Lyndhurst, NJ 07071

Attorney for Appellee Senator Robert Menendez,

individually and as State actor Senator

Cyndee L. Allert, Esq.

Elizabeth A. Farrell, Esq.

Dughi Hewit & Domalewski

340 North Avenue East

Suite 2

Cranford, NJ 07016

Attorneys for Appellees Julia DeBellis, Nina Agrawal,

Robert Latimer

Paul J. Soderman, Esq.

Suite 202

157 Eagle Rock Avenue

Roseland, NJ 07068

Attorney for Appellee Families First, Victoria Madden

Darrell M. Felsenstein, Esq.

4

Wells Jaworski & Lebman

12 Route 17 North

P.O. Box 1827

Paramus, NJ 07653

Attorney for Appellees Childrens Aids and Family

Services, Rachel Polan, Patricia Kryger, Maria

Mahtani, Claire Abel

Julien X. Neals, Esq.

Robert N. Schwartz, Esq.

Office of Bergen County Counsel

One Bergen County Plaza

Room 580

Hackensack, NJ 07601

Attorneys for Bergen County Division of Family

Guidance, Judith Legget

William T. McGloin, Esq.

Connell Foley

56 Livingston Avenue

Roseland, NJ 07068

Attorney for Dr. Daniel Bromberg, Dr. Donna

LoBiondo

William J. Buckley, Esq.

Thomas N. Gamarello, Esq.

Schenck Price Smith & King

220 Park Avenue

P.O. Box 991

Florham Park, NJ 07932

Attorneys for Vivian Chern Shnadiman

Melissa J. Brown, Esq.

5

Marks O’Neill O’Brien Doherty & Kelly

535 Route 38 East

Suite 501

Cherry Hill, NJ 08002

Attorney for Jacqueline Kim Szabo

____________

OPINION

____________

MATEY, Circuit Judge.

Sometimes a difficult journey produces fresh insights,

like when the “[l]ongest way round is the shortest way home.”1

In this appeal, Amy Weber argues persuasively that her

complaint was erroneously dismissed. But rather than decide

that question, we must dismiss the appeal for lack of a final

order. That result is regrettable, but not unexpected, as finality

is a necessary predicate to appellate review. Indeed, an epic

poem of problems often follows when charting any other

course. Our opinion seeks to eliminate some of that confusion

while reminding litigants and courts that following the rules

ensures predictable outcomes and effective results.

1

JAMES JOYCE, ULYSSES 309 (Gabler ed., Random

House, Inc. 1986) (1922).

6

I. The Proceedings Before the District Court

A. Weber Begins Her Odyssey

We begin our journey in 2014 when Appellant Amy

Weber sued, pro se, nearly sixty defendants in the United

States District Court for the District of New Jersey.2 Weber’s

complaint stems largely from her experiences dealing with

New Jersey public officials during a child custody matter, a

controversy that involved litigation in the New Jersey state

courts. When she filed her federal complaint, Weber was also

appealing an adverse custody decision to the Appellate

Division of the New Jersey Superior Court. The specter of this

seemingly related state court action caused the District Court

to consider the prudential limitations on subject-matter

jurisdiction in the abstention doctrines. Following briefing, the

Magistrate Judge issued a Report and Recommendation that

Weber’s claims be dismissed under the principles of Rooker-

Feldman or Younger.3 And that is where the story begins its

journey into mystery.

2

We thank the court-appointed amicus curiae appearing

on behalf of the appellant for his able assistance.

3

Both doctrines are narrow prudential exceptions to

federal jurisdiction. Rooker-Feldman instructs courts to refrain

from matters inviting direct review of state-court judgments.

See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S.

280, 284 (2005). Younger abstention seeks to avoid

interference with ongoing state proceedings. See Sprint

Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 77–78 (2013).

7

B. Between Scylla and Charybdis

The District Court issued a Memorandum Opinion

adopting the Report and Recommendation, accompanied by an

order dismissing Weber’s complaint without prejudice and

permitting her thirty days to amend. In a letter dated June 27,

2016, Weber filed a notice of appeal with this Court. That

notice prompted a July 21, 2016 letter by our Circuit Clerk

advising Weber that her appeal “will be submitted to a panel of

this Court for possible dismissal due to a jurisdictional defect”

because her complaint had been dismissed by the District Court

without prejudice and thus “may not be reviewable at this time

by a court of appeals.” The Clerk’s letter enclosed a copy of 28

U.S.C. § 1291 and summarized the holding in Borelli v. City of

Reading, 532 F.2d 950 (3d Cir. 1976) (per curiam), stating that,

“to be final, order of dismissal must be with prejudice; order

dismissing without prejudice contemplates leave to amend and

is not appealable unless plaintiff elects to stand on

complaint . . . .” Multiple defendants echoed the same

jurisdictional concern in contemporaneous letters to this Court.

In response, Weber wrote to the District Court advising

that she had “taken [her] case into appeal” and “kindly

requesting for your final court order regarding my case . . . to

allow me to proceed accordingly.” Receiving no response,

Weber wrote to this Court and asked to withdraw her appeal.

The Clerk of the Court advised Weber in a new letter that if she

wished to withdraw her appeal, she must file a motion or the

case would move forward.

And so Weber moved to dismiss her appeal to prevent,

she wrote, “more ‘jurisdictional defects.’” This Court granted

her motion.

8

C. Flight from the Cave of Polyphemus

With Weber’s appeal dismissed, some defendants began

to wonder where the case now stood. So, on November 29,

2016, counsel for a few wrote the District Court that Weber’s

thirty-day period to amend her complaint following the June 9

dismissal without prejudice “has long passed” and that

defendants “seek dismissal with prejudice.”4 The next day, the

District Court made an electronic entry on the docket that

stated: “Civil Case Terminated. (Clerk’s Note: Please see

Order Dkt. Entry #119) (sr, ) (Entered: 11/30/2016)[.]”5

Believing herself free from the jurisdictional defects of her

earlier appeal, Weber filed a new notice of appeal on December

15, 2016. That appeal is before us today and turns on a

surprisingly elusive question: is there a final order of the

District Court dismissing Weber’s complaint?

II. There Is No Appellate Jurisdiction

Absent A Final Order

A. The Statutory Framework

As with every case, we begin by assessing our

jurisdiction. Congress has given the federal circuit courts

4

The letter referenced a phone call stating “[m]y office

contacted Your Honor’s chambers and was advised that Your

Honor would not require a formal motion.” Counsel

accompanied a draft order of dismissal with prejudice for the

District Court’s convenience.

5

Docket entry “#119” referred to the June 9 order that

dismissed the complaint without prejudice.

9

jurisdiction over “appeals from all final decisions of the district

courts[.]” 28 U.S.C. § 1291. A “final decision” is “one which

ends the litigation on the merits and leaves nothing for the court

to do but execute the judgment.” Catlin v. United States, 324

U.S. 229, 233 (1945). The requirement of finality is often

described as serving “the important purpose of promoting

efficient judicial administration.” Firestone Tire & Rubber Co.

v. Risjord, 449 U.S. 368, 374 (1981). A final decision or

judgment is “[a] court’s last action that settles the rights of the

parties and disposes of all issues in controversy, except for . . .

enforcement of the judgment.” Final Judgment, BLACK’S LAW

DICTIONARY (10th ed. 2014). That may well mean a party must

delay appellate review; indeed, “the possibility that a ruling

may be erroneous and may impose additional litigation

expense is not sufficient to set aside the finality requirement

imposed by Congress.” Richardson-Merrell, Inc. v. Koller, 472

U.S. 424, 436 (1985). The benefits of certainty are superior to

the costs, and courts “routinely require litigants to wait until

after final judgment to vindicate valuable rights, including

rights central to our adversarial system.” Mohawk Indus., Inc.

v. Carpenter, 558 U.S. 100, 108–09 (2009). Both the command

of Congress and the guidance of the Supreme Court direct “a

healthy respect for the virtues of the final-judgment rule.” Id.

at 106.

B. Weber’s Arguments

Recall that while Weber filed two separate notices of

appeal, only the second is before us now. So, we must consider

what, if any, final order supports that appeal. Weber offers two

possibilities: first, the November docket entry “terminating”

her case, and second, the June order of dismissal without

prejudice. We consider each, finding the first ends up running

10

aground on the text of the Federal Rules, while the second asks

us to stray too far from the route prescribed by Congress.

1. Utility Events Are Not Orders

Weber first argues the District Court’s November 30,

2016 docket entry constituted a final appealable order, making

her second notice of appeal timely. Our opinion in Witasick v.

Minnesota Mutual Life Insurance Co., reasons otherwise. 803

F.3d 184 (3d Cir. 2015). In Witasick, we explained the

differences between the three distinct types of case-related

electronic entries on a federal case docket: text orders, utility

events, and minute entries.6 Each has a distinct purpose. First,

a text order “as its name suggests, is an order of the court, with

specific text granting, denying, or otherwise resolving a motion

or, ultimately, a case” including, among other purposes, “to set

a hearing, order briefing” and “to rule on substantive motions

. . . .” Witasick, 803 F.3d at 189. Text orders are most

significant because they “contain an electronic signature of a

judge.” Id. By contrast, a “‘utility event’ is an entry which

records an event or action in the life of a case.” Id. And mere

“minute entries reflect time spent in court[,]” including a case

management conference or contempt hearing. Id.

Weber tries to distinguish Witasick because the

November 30 docket entry includes the note “(Clerk’s Note:

6

The “docket” is “[a] formal record in which a judge or

court clerk briefly notes all the proceedings and filings in a

court case.” Docket, BLACK’S LAW DICTIONARY (10th ed.

2014).

11

Please see Order Dkt. Entry #119),” a reference to the June 9

order of dismissal without prejudice. That reference, Weber

reasons, eliminates any doubt about the entry’s meaning.

Perhaps, but it’s not a final order. Replacing the clarity of a

signed, labeled order with inferences drawn from other entries

is the very danger we sought to avoid in Witasick.7 These

distinctions matter because as we noted in Witasick, “utility

events . . . are not orders of the district court nor are they signed

by a judge. As such, they cannot serve as a foundation for an

appeal.” Id. at 189. The November 30 docket entry is a utility

event, and Weber cannot rely on the entry.

2. “Standing on the Complaint”

Weber also argues that the notice filed in December was

a timely appeal from the District Court’s June 9 order

dismissing her complaint without prejudice. The problem with

that theory seems obvious: a dismissal without prejudice and

with leave to amend isn’t a final order. But it turns out things

are somewhat murky because courts have found opportunities

to stray from the plain meaning of finality. From time to time,

and usually citing noble goals, circuit courts have side-stepped

the finality requirement of § 1291, relying on the oft-quoted

7

A comparison with the June 9, 2016 electronic entry

corresponding to the order dismissing Weber’s complaint

without prejudice highlights the difference. That entry reads:

“ORDER dismissing Plaintiff’s Complaint w/out prejudice,

and Plaintiff shall have 30 days in which to file an Amended

Complaint that cures the deficiencies set forth by the Court in

its corresponding Opinion. Signed by Judge Claire C. Cecchi

on 6/9/16. (sr, ) Modified on 6/13/2016 (jl). (Entered:

06/10/2016).” (D.C. ECF No. 119.)

12

preference for a “practical rather than a technical construction”

of the law. Caver v. City of Trenton, 420 F.3d 243, 261 (3d Cir.

2005) (quoting Cohen v. Beneficial Indus. Loan Corp., 337

U.S. 541, 546 (1949)). And so, exceptions sprouted like

dandelions, including “practical finality,” “effectively out of

court,” “pragmatic finality,” “marginal finality,” and even the

“death-knell” doctrine. See 19 Moore’s Federal Practice, §§

201.11, 202.08–10 (Matthew Bender 3d Ed.). Not surprisingly,

“[t]he law of federal appellate jurisdiction is widely regarded

as a mess.” Bryan Lammon, Finality, Appealability, and the

Scope of Interlocutory Review, 93 WASH. L. REV. 1809, 1810

(2018).

Seizing on this opening, Weber explains that the June 9

order dismissing her complaint without prejudice could not

become final until the expiration of the thirty-day period for

her to amend. So, she argues, the June 9 order “matured into a

final decision” on July 9, 2016. (Amicus Br. at 21.) And her

argument isn’t novel, because our circuit has created the “stand

on the complaint” doctrine, to find or foreclose appellate

jurisdiction in cases involving a complaint dismissed without

prejudice and without a final order from the district court. Such

dismissals should, under § 1291, fail the finality requirement.

The “stand on the complaint” doctrine, and its offspring, hold

otherwise. Which brings us to Borelli v. City of Reading, the

case cited in the Circuit Clerk’s July 26, 2016 letter.

Borelli involved a dispute over a redevelopment project.

Both sides moved for summary judgment. Borelli, 532 F.2d at

951. Based on the defendants’ motion, the district court

determined that the plaintiff lacked standing. Id. The court thus

dismissed the complaint without prejudice, and the plaintiff

appealed. Id. In a short per curiam opinion dismissing the

13

matter for lack of jurisdiction, we recited the basic rule that “an

order which dismisses a complaint without prejudice is neither

final nor appealable because the deficiency may be corrected

by the plaintiff without affecting the cause of action.” Id. But

then, we added the comment that “[o]nly if the plaintiff cannot

amend or declares his intention to stand on his complaint does

the order become final and appealable.” Id. at 951–52

(emphasis added). Borelli explained that when a plaintiff

prefers not to amend, he “may file an appropriate notice with

the district court asserting his intent to stand on the complaint,

at which time an order to dismiss the action would be

appropriate.” Id. at 951 n.1. That statement is not remarkable;

a plaintiff is always free to decline an invitation to amend a

seemingly defective complaint and, instead, seek a final

appealable order.8

Nothing in Borelli suggests an exception to the statutory

requirement of finality, nor, of course, would such a re-writing

of a statute be possible. Yet, in time, our decisions have

dropped the important second step of Borelli—seeking and

8

The phrase “stand on the complaint” traces to at least

the early twentieth century where the Supreme Court, while

summarizing the procedural posture of a case, noted instances

when a plaintiff decided to “stand on the complaint” rather than

amend. See, e.g., United States v. John Barth Co., 279 U.S.

370, 373 (1929); Schodde v. Twin Falls Land & Water Co., 224

U.S. 107, 114 (1912); N. Pac. Ry. Co. v. Slaght, 205 U.S. 122,

129 (1907); Bockfinger v. Foster, 190 U.S. 116, 119 (1903);

Filhiol v. Maurice, 185 U.S. 108, 108 (1902); Union

Refrigerator Transit Co. v. Lynch, 177 U.S. 149, 151 (1900).

But those cases came with a final order of dismissal.

14

receiving a final order—and instead allowed the mere intent to

forego further amendment to satisfy finality. See Berke v.

Bloch, 242 F.3d 131, 135 (3d Cir. 2001). As might be expected

from such a protean appellate standard, basic questions on the

contours of this doctrine are elusive, leading us to concede that

“[w]e cannot discern from our prior cases a clear rule for

determining when a party has elected to stand on his or her

complaint.” Hagan v. Rogers, 570 F.3d 146, 151 (3d Cir.

2009). As Weber seeks to rely on, and even expand this

theory,9 we organize our existing rules and decisions before

reaching her arguments.

a. Intent-Based Exceptions Replacing Final Orders

Our decision in Shapiro v. UJB Fin. Corp., began the

loosening of the final order rule that Borelli had reinforced. 964

F.2d 272 (3d Cir. 1992). In Shapiro, the district court invited

the plaintiffs to amend their complaint, warning that if nothing

arrived in thirty days the court would consider dismissal. Id. at

278. The plaintiffs advised the district court they would not

amend, but the court never entered a final order. Id. So, citing

Borelli, the defendants “contend[ed] that this was not enough.

They maintain[ed] that [the Court] lack[ed] jurisdiction

because plaintiffs failed to obtain an explicit dismissal with

prejudice.” Id. We disagreed, reasoning “[i]t seems clear that

the district court planned to dismiss with prejudice any claims

not amended. Requiring plaintiffs to return to the district court

now would be a wasteful elevation of form over substance.” Id.

Shapiro thus jettisoned the second prong of Borelli and can be

9

While Weber does not invoke the doctrine by name,

she still advocates for use of its underlying principle—for us to

find appellate jurisdiction from a non-final order.

15

read as collapsing the jurisdictional inquiry into a single

question: whether a plaintiff has “formally” stood on the

complaint. Id.

Shortly after, the test relaxed again in Batoff v. State

Farm Ins. Co., 977 F.2d 848 (3d Cir. 1992). There, the district

court dismissed the complaint and allowed thirty days to

amend. Id. at 851 n.5. The plaintiff not only declined to amend

but declined to file anything with the district court. Id. Rather,

the plaintiff filed a notice of appeal before the thirty days

elapsed. Id. We concluded that was enough under Borelli and

Shapiro, finding that “by failing to move to amend within the

30 days granted by the court, [the plaintiff] elected to stand on

his complaint.” Id.

Shapiro and Batoff do not rest easily alongside Borelli’s

simple statement that a clear and unequivocal declaration of

intent to skip amendment and seek an order of dismissal satisfy

§ 1291. Our decision in In re Westinghouse Securities

Litigation, 90 F.3d 696 (3d Cir. 1996), eases some of that

tension. There, following a dismissal without prejudice, the

plaintiffs filed a “Notice of Intention to Stand on Second

Consolidated Amended Class Action Complaint,” explaining

that after “carefully weigh[ing] the merits of repleading against

seeking immediate appellate review” they “respectfully give

notice of their intention to stand on the Complaint.” Id. at 703.

Synthesizing Borelli and Shapiro, we held that “when plaintiffs

elected to stand on the second amended complaint rather than

replead . . . the remaining claims were dismissed with

prejudice, and the case was closed in the district court[,]”

leaving “no doubt that the district court’s dismissal of the case

with prejudice was a reviewable, final order.” Id. at 705.

16

Lack of doubt, therefore, emerges as the key to finding

finality through the “stand on the complaint” doctrine.

Equating finality with clear intent also grounds our decisions

inferring a plaintiff’s decision to “stand on the complaint”

based on inaction after entry of a self-executing order. For

example, in Berke v. Bloch, the district court “closed” the case

on the docket, but dismissed “without prejudice to the right,

upon good cause shown, within 60 days, to reopen the action”

if the parties could not reach a settlement agreement. 242 F.3d

at 134–36. When the plaintiffs filed an appeal more than thirty

days after the sixty-day period to reopen the case had run, we

found the appeal untimely because plaintiffs’ failure to act is

“akin to standing on the[] complaint.” Id. at 135. Berke

reasoned that a non-final dismissal becomes final when it

provides clear instructions that the order will “ripen[]” into a

final order on the defined date if a plaintiff takes no action in

response. Id. at 135.

With these decisions as our guide, two principles

relevant to Weber’s appeal emerge. First, as in Berke, a “self-

effectuating” order is one that directs a party to take some

action to cure a defective complaint by a defined date and

provides express notice that it will then automatically produce

a final order of dismissal when the time to amend runs out.

Second, as in Westinghouse, a clear and unequivocal intent to

decline amendment and immediately appeal that leaves no

doubt or ambiguity can allow us to exercise jurisdiction.

Following these decisions as we must, we apply each to

Weber’s actions and conclude that we do not have appellate

jurisdiction.

17

b. The Stand on the Complaint Doctrine

Does Not Aid Weber’s Appeal

Unlike our prior cases, Weber’s actions in the District

Court leave ample room for doubt. In contrast to Berke, the

District Court’s June 9 dismissal without prejudice was not

“self-executing”; while it provided thirty days’ leave to file an

amended complaint, it lacked any language converting the

dismissal to a final order at the end of the period. And unlike

Westinghouse, Weber did not submit a clear and unequivocal

declaration of intent to “stand on her complaint.” True, when

warned by the Circuit Clerk that her appeal could be dismissed

for lack of jurisdiction, she appropriately notified the District

Court of her plan to “take[] [her] case into appeal” and sought

a final order. Had the District Court issued an order at that time,

the judgment would be final under § 1291 and we would have

jurisdiction over the appeal. See In re Westinghouse Sec. Litig.,

90 F.3d at 703–05. Instead, when Weber received no response,

she moved to withdraw her appeal, perhaps fearing dismissal

on jurisdictional grounds as the Circuit Clerk warned.

Appellees were similarly concerned about the status of the

action, as they too sought a final order from the District Court.

Perhaps our own case law on the final order requirement of

§ 1291 abetted this ambiguity and the parties’ confusion. But

whatever our role, we remain bound by § 1291 not to accept

jurisdiction absent a final order under these circumstances.

Weber’s indecision does not show clear and unequivocal

intent, and the “stand on the complaint” doctrine cannot rescue

the lack of a final order given her ambiguous actions.10

10

This conclusion fits with the approach taken by some

circuits. In WMX Technologies, Inc. v. Miller, the Ninth Circuit

18

Even more to the point, our consideration of the “stand

on the complaint” doctrine highlights the difficulty of basing

appellate jurisdiction on deeds rather than words. We caution

against traveling this circuitous route mindful that unless

properly constrained, the “stand on the complaint” doctrine

will continue to lure courts away from § 1291. It is, and always

was, a narrow doctrine demanding sparing use under our duty

to comply with the congressional grant of jurisdiction and the

federal rules of procedure.11 Indeed, the only practice that

reviewed an appeal from a dismissal without prejudice with

thirty days’ leave to amend. 104 F.3d 1133 (9th Cir. 1997) (en

banc). The plaintiff “did not amend, did not tell the district

court that it would not do so, and did not obtain a final order of

dismissal. It simply appealed.” Id. at 1134. The court dismissed

the appeal for lack of jurisdiction, explaining “[w]e now

specifically rule that a plaintiff, who has been given leave to

amend, may not file a notice of appeal simply because he does

not choose to file an amended complaint. A further district

court determination must be obtained.” Id. at 1136; see also

Sapp v. City of Brooklyn Park, 825 F.3d 931, 934 (8th Cir.

2016) (“[A] plaintiff may not appeal the dismissal of a

complaint when the district court grants the plaintiff leave to

amend his pleading.”) (internal quotations omitted);

CompuServe Inc. v. Saperstein, 172 F.3d 47 (6th Cir. 1999)

(unpublished table decision) (citing Borelli and observing,

“[t]he law is clear when the district court expressly grants the

dismissed party leave to amend. In such situations the

dismissal is not final, and that order may not be appealed.”).

11

Take a party seeking to dismiss a claim pursuant to

Federal Rule of Civil Procedure 41(b) for failure to comply

19

avoids these perils comes from the guidance offered in Borelli

more than four decades ago:

Since it may be difficult to determine whether the

district court thought an amendment was

possible and whether the plaintiff is willing or

able to amend, we suggest that district judges

expressly state, where appropriate, that the

plaintiff has leave to amend within a specified

period of time, and that application for dismissal

of the action may be made if a timely amendment

is not forthcoming within that time. If the

plaintiff does not desire to amend, he may file an

appropriate notice with the district court

asserting his intent to stand on the complaint, at

which time an order to dismiss the action would

be appropriate.

with a court order. That is precisely the remedy sought by

defendants here in their November 29, 2016 correspondence to

the District Court. We have specified a rigorous six factor test

to determine whether to dismiss a case under Rule 41(b). See

Hildebrand v. Allegheny Cty., 923 F.3d 128, 132 (3d Cir.

2019). Indeed, in Hildebrand, we vacated the dismissal of a

suit after the docket idled for three years. Id. at 138. And the

District Court here would have needed to perform the same

analysis had Weber objected to a motion to dismiss with

prejudice. We use a similar multi-factor test to determine

whether we have jurisdiction from an appeal under the

collateral order doctrine. See Gillette v. Prosper, 858 F.3d 833,

839 (3d Cir. 2017). It is hard to reconcile our vigilant scrutiny

of final orders in these areas with our tolerance for non-final

dismissals.

20

Borelli, 532 F.2d at 951 n1. We reiterate that admonition today.

3. There Is No Separate Document Triggering

the Time to Appeal

Weber’s desire to use the June 9 order, and the thirty

days for amendment that followed, encounters a separate

problem under the Federal Rules. Some background on the

calculation of the time to appeal is helpful. Federal Rule of

Civil Procedure 79 requires docket entries for certain actions

including orders, verdicts, and judgments. Rule 58(b) requires

prompt entry of each because they start the clock for the filing

of an appeal. And Rule 58(a) requires a separate document for

final judgments. Federal Rule of Appellate Procedure

4(a)(1)(A) then sets out the time to appeal a civil matter,

generally thirty days after entry of the judgment or order. So,

what happens when, as here, there is no separate document?

Federal Rule of Civil Procedure 58(c)(2)(B) steps in to enter

judgment—and begin the time to appeal—when 150 days have

run from the docket entry. Civil Rule 58 and Appellate Rule 4

“are designed to work in conjunction . . . to ensure that appeal

time does not linger on indefinitely.” FED. R. CIV. P. 58

advisory committee’s note to 2002 amendment.

Recall Weber’s argument that the June 9 order “matured

into a final decision” one month later. (Amicus Br. at 21.) But

as we already know, the District Court entered nothing on the

docket on that date. Lacking the required separate document

under 58(c)(2), she turns to Rule 58(c)(2)(B) to give her

another 150 days, which, combined with the thirty days to file

her appeal, makes her December 15 notice timely. This

argument, however, invites us to add pages to procedural

21

treatises by introducing a new doctrinal exception. We

conclude instead that the plain text of Rule 58 controls.

Judgment arises under Rule 58(c)(2)(B) when “150

days have run from the entry in the civil docket.” FED. R. CIV.

P. 58(c)(2)(B) (emphasis added). Simply put, the predicate

action thus required to begin the 150-day clock is an entry in

the civil docket. Even if the June 9 order could qualify, that

leaves Weber’s appeal a few days late under Federal Rule of

Appellate Procedure 4(a). Adding the extra thirty-day

amendment period would do the trick, but to allow Weber this

concession we would need to read the words “entry in the civil

docket” out of Rule 58. Doing so would ignore the text of the

rule and, soon enough, add fresh frustration to litigants and

courts. As there was no final order on July 9, and thus no

docket entry either, Rule 58 brings us no closer to the port of

jurisdiction.

III. Weber’s Case Remains Pending in the District Court

At long last, Weber finishes her odyssey like the fabled

hero: back where she began. She has a live action still pending

before the District Court. Sadly, all of this was avoidable

proving that “[t]he undesirability of useless delays in litigation

is more than offset by the hazards of confusion or

misunderstanding as to the time for appeal.” Jung v. K. & D.

Mining Co., 356 U.S. 335, 337 (1958). Our conclusion today

means that Weber can still appeal her case by filing a notice of

appeal after the District Court enters a final order. While both

parties invite us to tuck Weber’s case into one of our self-

created doctrines or slip it into a new, narrow exception, we

decline to depart from the requirements of the rules and the

statutes, confident that any efficiency gained today will drown

22

in a sea of ambiguity tomorrow. The need for restraint in

expanding exceptions to the rule of finality “has acquired

special force . . . with the enactment of legislation designating

rulemaking, ‘not expansion by court decision,’ as the preferred

means for determining [appealability].”12 Mohawk, 558 U.S. at

113 (quoting Swint v. Chambers Cty. Comm’n, 514 U.S. 35, 48

(1995)). Such an allowance by Congress “warrant[s] the

Judiciary’s full respect,” Id. at 114 (quoting Swint, 514 U.S. at

48), and we “resist[] efforts to stretch § 1291 to permit appeals

of right that would erode the finality principle and disserve its

objectives.” Microsoft Corp. v. Baker, 137 S. Ct. 1702, 1712

(2017). Frustrating as it may be, Weber’s appeal is simply

premature.

Weber brings her appeal from a non-final order of the

District Court. Because we are without jurisdiction under 28

U.S.C. § 1291, we cannot consider other independent bases

raised by Appellees to affirm the District Court’s dismissal.

And though we harbor doubts about the District Court’s

dismissal under the Rooker-Feldman and Younger abstention

doctrines, this too we cannot consider. We will therefore

dismiss the appeal for lack of jurisdiction.13

12

Under 28 U.S.C. § 2072(c), the Supreme Court

possesses the delegated authority to prescribe rules of

procedure, including “rules that may define when a ruling of a

district court is final for the purposes of appeal under section

1291 of this title.”

13

None of this is to imply that Weber’s case has merit.

That determination awaits another day.

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