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Case number 19-7065, Darrell Wilcox, individually and as representatives of a class of participants and beneficiaries in and on behalf of the Georgetown University Defined Contribution Retirement Plan, the Georgetown University Voluntary Contribution Retirement Plan, and Michael McGuire, individually and as representatives of a class of participants and beneficiaries in and on behalf of the Georgetown University Defined Contribution Retirement Plan,

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the Georgetown University Voluntary Contribution Retirement Plan Appellants versus Georgetown University et al.

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Mr. Nestico for the Appellants, Mr. Netter for the Appellees.

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Good morning, Council.

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Council for Appellants, do you wish to begin?

[00:00:55] Speaker 03:
Yes, Your Honor.

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Thank you, Your Honors.

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Good morning, and welcome to the post-COVID world of appellate argument.

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My name is John Nestico.

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I'm an attorney with the firm of Schneider-Wallace-Cotrill-Connachie, attorneys for plaintiffs' appellants.

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Your Honors, the issues in this case should not present even a close question.

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The complaint contained specific and detailed allegations that the participants in the Georgetown plans were paying excessive and unreasonable fees for administrative services.

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In fact, on average, they were paying in the range of hundreds of dollars.

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In the case of... Council, as you know, the first question we have is whether we have jurisdiction.

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Yes, your honor.

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And of course, you know that

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Appellee is argued we do not.

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So do you want to address that issue?

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Yes, Your Honor, of course.

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The order that was entered by the district court was very specific, explicit, and unambiguous.

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And that is that the court dismissed the complaint without prejudice.

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The precedents in this circuit and in others make it very clear that unless the action is dismissed without prejudice, that it is not a final and appealable order.

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I understand your point because we have said generally, but we've said that in specific factual context.

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And of course, Appellee has argued the context here is different.

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So from my point of view, the question is, given the authority that you have cited, what weighs in your favor in terms of saying that the district court intended that her dismissal was a final, appealable order?

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A couple of points about that, Your Honor.

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First, defendants rely significantly on the language of the opinion.

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related to the order.

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And the fact is that there were numerous claims in the complaint and addressed in the opinion that were factual based.

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For example, the court challenged our assertion that record keeping services could be obtained for roughly $35 on average per participant, but failed to address entirely the allegations that

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Participants were paying hundreds of dollars.

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We also addressed that we were able to address that in our proposed amended complaint where we cited additional factual evidence, including national surveys supporting the $35 claim.

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Another claim was the district court failed to address entirely the standing of participants in the TIA.

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Does a district court have to explain why it's dismissing a case?

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I'm not sure of the answer to that, Your Honor.

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If it's summary judgment, there's no requirement in the federal rules that the district court

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explain itself.

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Isn't our review de novo review?

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Yes, your honor.

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I believe it is.

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Yeah.

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So no matter what the district court says, listen, I want to cut away a few things.

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Can you ever have an action without a complaint in the federal system?

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I don't believe so, Your Honor, but I agree.

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I mean, it's like having a smile without the cat.

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And if you don't have a complaint because it's been dismissed, how can you possibly have an action?

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Well, Your Honor, the decisions in this area clearly distinguish between the dismissal of a complaint and dismissal of the action.

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Some of them do and some of them don't.

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There are, by the way, I mean,

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unpublished orders in cases dismissing them or affirming under rule 34J as our local rule.

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There are close to a hundred of those cases that were dismissed.

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The complaints were dismissed without prejudice and we rendered a merits opinion on it.

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All your honor, I can do is cite to Murray versus Gilmore, which I know Murray.

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Yeah.

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Yeah.

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I'm dismissive in action, but not dismissive of a complaint is not, uh, is a final appeal order.

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Yeah.

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Uh, and I think the distinction is that if there, if the complaint can be, uh, resurrected by the allegation of sufficient additional facts, then the court should, uh, freely allow amendment of that complaint.

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Yeah.

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But yours can't because you were out of time.

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That's certainly the defendant's position, Your Honor.

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But as I said- 28 days and you filed in 30 days.

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That's only if the dismissal of the complaint without prejudice actually is determined to be a final appealable order.

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If it is not, then, and based on our arguments about it, I think that that's the essential question.

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Well, just to, I don't want to take up all your time, but just to go back a little bit, you know, the idea that, well, if the complaint can be repaired through an amendment, then it can, then it's not, the dismissal of the complaint is without prejudice, it's not a final order, runs into all kinds of difficulties, not the least of which is, how do we know whether it can be amended without, or repaired

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through an amendment.

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How do you know?

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And you don't necessarily know exactly why the district court dismissed the case because there's no requirement district court even give an opinion on that.

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So the commentators say this is a total morass.

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It makes no sense and ought to be straightened out.

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Maybe yours is the case to do it.

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Well, Your Honor, in this case, the district court did provide reasons why it was dismissing the complaint.

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For example, with respect to the allegations about excessive fees, the dismissal was based on lack of standing because neither of the two plaintiffs had invested in the Vanguard funds, but both of the plaintiffs had invested in the TIAA funds, which we also alleged charged excessive fees, and the court didn't even address that particular claim.

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Well, let me ask you, Appellee argues that

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looking at the order, which I take to be a Rule 58 order, that as to your allegation regarding record-keeping fees, that it failed to state a claim because the theory, according to the district court, was entirely speculative, contrary to case law,

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and common sense and does not warrant discovery," close quote.

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How did you understand the district court to view that?

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In other words, doesn't that support Appellee's view that the district court had rejected, for example, the legal theory behind your case

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Your honor, I think we understood it to mean she explicitly said that she rejected the proposition that record-keeping fees for these contracts could be obtained at $35 per participant.

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But she didn't reject at all the allegation that these plaintiffs were paying up to $300 per participant.

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And that, by the way, is only on average.

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As we did in our proposed amended complaint, when you translate that down to the individual level,

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We have plaintiffs who might have a $500,000 account in the plan who are paying $1,600 per participant.

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So at what point do the facts overwhelm that assessment?

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Do you agree then that if the entry on the docket saying this case is closed or the case is closed is something this court

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should consider, then you lose.

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Well, Your Honor, we reject that proposition, of course.

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That's just an administrative filing that doesn't seem to be tethered to the actual order of the court.

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And the other thing I would like to mention about that is defendants did not ask for dismissal of the action.

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Their motion for a motion for dismissal was to dismiss the complaint.

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And they certainly failed to ask for dismissal with prejudice.

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The court relied significantly on Churalsky.

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to dismiss.

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On the motion to dismiss.

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Record, but I pulled it up on the docket.

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It did ask for dismissal with prejudice, dismissal of the complaint with prejudice.

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The actual motion to dismiss, Your Honor, I believe specifically requested only motion to dismiss based on 12B1 and 12B6.

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And there was no mention in the motion to dismiss at all or in the memorandum in support of the motion to dismiss that the action should be dismissed with prejudice.

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And that was the issue in Swarovski, where the plaintiff had filed an initial complaint that was 109 pages.

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The defendant filed a motion to strike the complaint.

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And then they filed a subsequent, with leave of court, an amended complaint that was not equally as long, but basically did not take care of any of the excessive pleadings that were in that case.

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And the court

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the defendant then actually requested a motion to dismiss with prejudice that was granted by the court.

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To Judge Randolph's question about how do we know if the district court were aware of these cases as they submitted in, as the court submitted in their

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subsequent memorandum opinion, then it would clearly have been possible to be more specific in the original dismissal order, rather than simply say that the complaint was dismissed without prejudice, which from our perspective and the perspective of really the majority of the courts that have addressed this issue, allow for or should allow for leave to amend, especially when it's with respect to the first complaint,

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and especially when there are significant factual issues that were addressed by the court in that memorandum of opinion.

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You want to save the rest of your time for rebuttal or do my colleagues?

[00:12:24] Speaker 03:
Yes, Your Honor, I would like to do that.

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Thank you.

[00:12:27] Speaker 04:
All right.

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All right, we'll hear from counsel for Appellee.

[00:12:45] Speaker 01:
Thank you, Judge Rogers, and may it please the court, Brian Netter for Georgetown University et al.

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If I could begin, Your Honors, with Judge Rogers' first question to counsel for the appellants, which was, how are we to know that in this particular case, the action was closed?

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And I think that there are a number of considerations here.

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the first of which is that Judge Collier signed an order that she posted to the docket saying, this case is closed.

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The second is that- Counsel, let me ask you, when you say the case is closed, in your reading of that, that is indicative of the district court having stepped away from the case and it's a final appealable order.

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But as you know,

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Other circuits have viewed that language to be ambiguous and may only refer to an administrative matter having nothing to do with whether the order is a final appeal of order.

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What's your response there.

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But I don't think that that I gather that your honor is referring to the string site of cases from other circuits and appellants reply brief.

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And we don't share the appellants interpretation of those cases.

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Every single one of those cases was clearly an administrative closure in which there was further action anticipated.

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The vast majority of those cases were circumstances in which a court had granted a motion to compel arbitration.

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and was holding on to jurisdiction for the post-arbitration proceedings.

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There isn't a single case the plaintiffs have cited from this circuit or from any other circuit where a case was dismissed, there were no further proceedings contemplated, and that dismissal with or without prejudice was deemed to be a non-final order.

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Well, in their opening brief, they cite the Seventh Circuit case, all right, saying that a docket notation can't change an order

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that is not final into a final appealable order.

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That's what I'm focusing on here as to how are we to know, A, assuming we take the docket as under the rules authorizing the clerk's office, or in this case, as is argued, presumably the district court's law clerk to add a notation that is not anywhere in a

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statement by the district court herself in any of her orders or the memorandum opinion in January.

[00:15:27] Speaker 01:
Well, Your Honor, the orders that are posted by the district judge on the docket are orders of the court.

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There are frequently orders that have no attached document at all.

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And those are just as binding as a link on the docket to another document.

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Rose, the clerk.

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law clerk had said on the docket, pay $25.

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So if the court's question is if the law clerk

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I guess there are two aspects of this.

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One is distinguishing between the law clerk and the judge.

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And we know in this case that this order came from Judge Collier, because in her subsequent order denying the Rule 59 motion is untimely, she took ownership of that order.

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So if the question is, what if we have a law clerk acting beyond the authority of the law clerk, that's just not a circumstance we have here.

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In any case, counsel, what I'm really focusing on is as of the January,

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memorandum, opinion, and order.

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What signal, or what should we find in Judge Randolph's view, signal that this was a final, appealable order, where what I'm describing as Rule 58 order says, for the reason stated in my memorandum opinion, I grant the motion to dismiss, and the complaint is hereby dismissed without prejudice.

[00:17:00] Speaker 01:
So Your Honor, three things.

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First is we do believe that the language this case is closed is significant because it describes what the district court's intent was, which under Swarovski is the governing standard.

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Second of all, the absence of any date or mention of the prospect of amendment is also a significant consideration here.

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In my experience, when a court dismisses a complaint without prejudice but thinks that there is some amendment that's possible,

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The court will set a 14 or 21 day deadline for the for the case to move forward.

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I hear there was no mention of that at all.

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And that also is the court required to do that, though, in order to keep the case open.

[00:17:43] Speaker 01:
Well, I don't think that the court is required to set a particular deadline, but the court can also just say that it anticipates that it's going to allow for the plaintiff to have some opportunity to replete, which was what happened in Murray versus Gilmore, where Judge Sullivan said, I'm going to keep this case open.

[00:18:00] Speaker 01:
because I'm going to wait for an amended complaint once the plaintiff can develop the argument there.

[00:18:05] Speaker 01:
In Swarovski, the court dismissed the case without prejudice, contrary to what Mr. Nestico said, for a reason where the complaint clearly could have been amended again, because it was dismissed for failure to plainly articulate the allegations, to plainly state the claim under Rule 8.

[00:18:28] Speaker 01:
And in that case, the district court indicated that it dismissed the action as opposed to just the complaint.

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because the plaintiff had not indicated any desire to amend the complaint before the case was dismissed.

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And the same thing is here true, is here too, that the plaintiffs could upon reading Georgetown's motion to dismiss, they could have amended their complaint there.

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They could have indicated in their opposition that there were additional facts that they had available.

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It's also important to keep in mind here that this case is not an isolated case.

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This was, if I'm counting correctly, the 17th class action lawsuit that was filed against

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a large private university alleging that the retirement plan had been misconfigured in basically the same way in each case.

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So I think it's a reason.

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May I interrupt you?

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If the only thing that happened, as you say, is the judge issues an order dismissing the complaint without prejudice, and the next day the plaintiff files a notice of appeal,

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and then a week later files a motion to amend the complaint.

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Is the notice of appeal null and void retroactively?

[00:19:39] Speaker 01:
It's not null and void.

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So the federal rules contemplated that if there's a post judgment motion that is pending, that effectively the notice of appeal doesn't ripen until that period has been delayed.

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If the assumption of the court's hypothetical is that this was a dismissal of the action and there were no contemplated proceedings.

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I do not understand what the distinction between, I know that it's been said

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by, in Mary and, well, I think Mary may have misunderstood the Cherowski case, but in any event, I don't understand the distinction between dismissal of the action, dismissal of the complaint.

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You can't have an action unless you have a complaint, and if the complaint's dismissed, then that's the end of it.

[00:20:28] Speaker 02:
It's pretty simple.

[00:20:31] Speaker 01:
Yeah.

[00:20:31] Speaker 01:
We certainly agree with that, Your Honor, but the way that we've tried to reconcile these cases that suggests that there is a world in which a complaint can be dismissed, but the court can anticipate future action such that it's retaining jurisdiction.

[00:20:45] Speaker 01:
The distinction that we draw is that there's no indication anywhere here that the court was intending to hold on to the case.

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Is that your, what's the name?

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I've forgotten the name.

[00:20:56] Speaker 02:
The Supreme Court per curiam a pay case where the, uh, uh, the, the judge dismissed the complaint without prejudice, but granted leave to amend in 20 days or 20, I don't know, some period of time and no amendment came in.

[00:21:14] Speaker 02:
And then two years later in notice of appeal was filed.

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What's the name?

[00:21:18] Speaker 02:
Do you recall the name of that Supreme court case?

[00:21:22] Speaker 01:
I don't.

[00:21:23] Speaker 01:
There's a 1949 Supreme Court case that talks about jurisdiction after dismissals without prejudice.

[00:21:29] Speaker 01:
That's Wallace?

[00:21:30] Speaker 01:
That's Wallace, right.

[00:21:32] Speaker 02:
Right.

[00:21:32] Speaker 02:
No, I'm not talking about Wallace.

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There's another, I don't have it on the tip of my tongue, but, well, go on.

[00:21:42] Speaker 01:
In any event, in order for the dismissal here to have been non-final, the district court would have had to have some ongoing connection to the matter.

[00:21:52] Speaker 01:
But here there was no such ongoing connection.

[00:21:56] Speaker 01:
As Judge Collier explained at the time, she was closing the case, which is not something that ordinarily happens with a dismissal of a case without prejudice if the court contemplates that there's going to be an amendment forthcoming.

[00:22:09] Speaker 01:
The plaintiffs have not requested any sort of amendment.

[00:22:13] Speaker 01:
There was no indication in the language of the opinion that there was some easy way to amend the complaint.

[00:22:18] Speaker 01:
And one worrisome aspect of the appellant's position here is the assumption that whenever there are deficiencies in the allegations, that there's always some way to just make up new allegations to plug that hole.

[00:22:31] Speaker 01:
In my experience, at least given that we have rule 11, that's not the case.

[00:22:37] Speaker 01:
And when the plaintiffs decide to stand on their complaint, and this is a very lengthy complaint with, I think, more than 100 paragraphs of allegations, they're putting their best case forward.

[00:22:51] Speaker 01:
And if that case does not legally state a claim, as was the case here, then

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Then the case is over.

[00:22:58] Speaker 01:
And you know that surely is the way that the district court understood the proceedings to be here.

[00:23:03] Speaker 01:
And we view the circumstance to be governed by Swarovski, which again was a dismissal without prejudice in which the court

[00:23:14] Speaker 01:
indicated that even though there was a possibility, even though it was theoretically possible to amend the complaint again, because the plaintiff had not asked, had not indicated that it had future amendments to make, the dismissal without prejudice was a final, appealable order.

[00:23:31] Speaker 04:
You know, in this string of cases under ERISA, in other circuits, the complaint has gotten further and

[00:23:44] Speaker 04:
Indeed, one went to trial.

[00:23:47] Speaker 04:
So that where the district court here says your allegation is speculative, doesn't that invite the plaintiff to make it clear that no, it's not.

[00:23:59] Speaker 04:
Look at what other schools are doing.

[00:24:02] Speaker 04:
Or your point is that, just trying to understand the theory here, that given that we have this somewhat murky area and the effort by this court

[00:24:13] Speaker 04:
whether you agree with it or not, to sort of provide some clarity by talking about dismissal of a complaint as compared to dismissal of an action without prejudice, that there's a burden on the plaintiff in order to make certain that it isn't missing its opportunity to appeal to

[00:24:45] Speaker 04:
either file that protective appeal or, as I think your brief suggests, check with chambers, see what was really going on, what was intended.

[00:24:55] Speaker 04:
And that rationale, as I understand it, does not require this court to opine on the language the cases close and whether or not that type of notation appears

[00:25:15] Speaker 04:
properly in the docket under Rule 79.

[00:25:22] Speaker 01:
So there were a bunch of questions there, Judge Rogers.

[00:25:25] Speaker 01:
Let me try to unpack them.

[00:25:26] Speaker 01:
First of all, we do agree that there are multiple ways that the court could rule for Georgetown here.

[00:25:32] Speaker 01:
One of them, a very straightforward way, would be to rely on the language the case is closed.

[00:25:36] Speaker 01:
But even if you take that language out of the picture, we do believe that the dismissal without prejudice, with no provision for amendment, would also have constituted a final appealable order that started either the 28-day clock for Rule 59 motion or the 30-day clock to notice an appeal.

[00:25:52] Speaker 01:
Now, I do want to go back also to the court's reference to the case that went to trial, which was Saucer Dode versus NYU, because we draw precisely the opposite inference.

[00:26:03] Speaker 01:
So what happened in the NYU case was in a bit of a rocket docket moment.

[00:26:08] Speaker 01:
That case was sped along to trial.

[00:26:10] Speaker 01:
And Judge Forrest conducted a two-week bench trial and then wrote an opinion and said, oh my goodness, there's nothing here.

[00:26:18] Speaker 01:
All the allegations in this complaint presuppose that NYU could have achieved something different, but a plan that was starting out fresh could have gotten something different, but a plan that started out like NYU could have looked nothing like this.

[00:26:35] Speaker 01:
This is all just, this is fanciful, it's fictitious.

[00:26:38] Speaker 01:
So when

[00:26:40] Speaker 01:
when the district court in this case is reviewing the complaint against the backdrop of those trial findings in the NYU case, it's reasonable, we think, to evaluate the plausibility of the complaint by seeing whether the plaintiffs could come forward and make allegations that would surmount the findings of the trial judge in the NYU case.

[00:27:00] Speaker 01:
So because the plaintiffs could not actually allege that there were other universities that had these TIA annuities and that had similar lineups that were able to

[00:27:10] Speaker 01:
come up with a new plan that looked like they wanted, there's no reason for the case to move forward, despite the fact that the NYU plaintiffs had an opportunity to conduct the discovery and to develop the facts.

[00:27:23] Speaker 01:
So that, in our view, is really a further justification for why it made sense for the case to be over upon the dismissal of the complaint.

[00:27:31] Speaker 02:
Mr. Netter, I've just recalled the name of the Supreme Court per curiam case.

[00:27:37] Speaker 02:
It's Young.

[00:27:38] Speaker 02:
or J-U-N-G, 1958.

[00:27:41] Speaker 02:
Are you familiar with that case?

[00:27:44] Speaker 01:
Not off the top of my head, Your Honor.

[00:27:46] Speaker 01:
If the court would like for us to file a letter about it, we'd be happy to.

[00:27:50] Speaker 02:
What happened is that it was a dismissal without prejudice, but would leave to amend for two weeks.

[00:27:56] Speaker 02:
And the time expired for amendment, and two years passed.

[00:28:04] Speaker 02:
And then the plaintiffs appealed

[00:28:08] Speaker 02:
and the Supreme Court allowed the appeal as timely.

[00:28:12] Speaker 02:
How do you explain that?

[00:28:15] Speaker 01:
Well, again, Your Honor, it's hard for me to answer that question without immediate familiarity of the case.

[00:28:21] Speaker 01:
And we would be happy to submit a letter.

[00:28:24] Speaker 01:
One would think that modern jurisprudence, there are some circumstances in which a complaint is dismissed without prejudice, and there is an appeal, or there is a time period provided for amendment.

[00:28:35] Speaker 01:
And courts have found that if the plaintiff does not amend within that time period, that the expiration of that time period constitutes

[00:28:42] Speaker 01:
when the order becomes final.

[00:28:44] Speaker 01:
We can certainly look into this young case and figure out if it remains good law, but it's hard for me on the spot to try to understand how that can be reconciled with the other more recent binding authorities that we've cited in our papers.

[00:28:59] Speaker 02:
Okay, thank you.

[00:29:02] Speaker 01:
If there are no further questions, we would ask the court to dismiss the appeal for want of jurisdiction or in the alternative to affirm.

[00:29:13] Speaker 03:
Judge Randolph, I would like to address your question about the difference between a complaint and an action.

[00:29:21] Speaker 03:
I think there is a very clear distinction between those two things.

[00:29:25] Speaker 03:
The complaint is alleging facts that supports a particular claim of liability.

[00:29:33] Speaker 03:
And the question is whether the factual allegations in that complaint support the claim of liability.

[00:29:40] Speaker 03:
The action is the claim of liability.

[00:29:43] Speaker 03:
And when an action is dismissed, the court is making a decision that no factual allegations and no amendment to that complaint could support that claim of liability.

[00:29:54] Speaker 02:
Can there be an action without a complaint?

[00:29:58] Speaker 02:
No, Your Honor.

[00:29:59] Speaker 02:
And if there can be, will you please explain to me how that is possible?

[00:30:06] Speaker 03:
Your Honor, I think it's looking at it from two different perspectives.

[00:30:10] Speaker 03:
I agree that there cannot be an action without a complaint.

[00:30:13] Speaker 03:
The question is, does the complaint support the action?

[00:30:16] Speaker 03:
And there can be various iterations of the complaint.

[00:30:22] Speaker 03:
So for example, the real issue is, can that complaint be revived by the allegation of additional facts that would support the action?

[00:30:33] Speaker 03:
And I think there are numerous instances in this particular case that indicates that would be true.

[00:30:38] Speaker 03:
One is, of course, with respect to the issue about whether the claim regarding the limitations on the

[00:30:49] Speaker 03:
the TIA traditional annuity were barred by the statute of limitations.

[00:30:54] Speaker 03:
Defendants noted in a footnote that it was barred by the three-year statute of limitations, and the district court seized upon that to claim that that applied.

[00:31:04] Speaker 03:
The fact is, however, that- May I interrupt you?

[00:31:07] Speaker 02:
You triggered something that I hadn't really focused on.

[00:31:10] Speaker 02:
I think it's an interesting point.

[00:31:12] Speaker 02:
Did the defendants here file an answer to your complaint?

[00:31:19] Speaker 03:
No, your honor.

[00:31:20] Speaker 02:
So any amendment that you have would relate back, right?

[00:31:25] Speaker 02:
Correct.

[00:31:26] Speaker 02:
Okay.

[00:31:27] Speaker 02:
All right.

[00:31:27] Speaker 02:
Thanks.

[00:31:28] Speaker 03:
So that particular issue, the three-year statute, depends on whether the plaintiff had actual knowledge of the claim, of the illegal activity, not just whether there were restrictions on the annuity contract itself, but whether, in fact, those restrictions violated the law.

[00:31:47] Speaker 03:
So that is clearly a factual issue that could have benefited by additional factual inquiry.

[00:31:57] Speaker 03:
and the plaintiffs never had an opportunity to address that issue.

[00:32:01] Speaker 04:
So again, to your point about the- Did the district court in any way that it wished to file for leave to amend the complaint?

[00:32:12] Speaker 03:
I'm sorry, Your Honor, would you repeat the question, please?

[00:32:15] Speaker 04:
Did the plaintiffs indicate to the district court in any way what you're telling us today, namely that there were allegations that could have been made

[00:32:27] Speaker 04:
to address the concerns of the district court.

[00:32:30] Speaker 04:
And therefore, the plaintiffs would be filing a motion for leave to file an amended complaint.

[00:32:36] Speaker 03:
We did not in advance, but we did within 30 days of that.

[00:32:41] Speaker 04:
I understand that, but I'm talking about before that, because you ran into that 28-day problem.

[00:32:46] Speaker 04:
And I know you say there was no time limit to a Rule 15 motion, but still.

[00:32:54] Speaker 03:
Well, again, Your Honor, based on precedent from multiple districts, our view was that that initial opinion and order, which simply dismissed the complaint without prejudice, was not a final, appealable order, that therefore we had a reasonable time to file our motion for leave to amend.

[00:33:11] Speaker 04:
Oh, I understand.

[00:33:12] Speaker 04:
And you know, there is a way to read the rules to say that the rules have been amended to try to make the Rule 48 order clear.

[00:33:22] Speaker 04:
So we don't have cases like this.

[00:33:24] Speaker 04:
But my point is that at least the law in this circuit and other circuits is not so clear.

[00:33:31] Speaker 04:
And therefore, was there not some burden on you to try to seek a clarification rather than risk that you might lose your opportunity to appeal?

[00:33:43] Speaker 03:
Your Honor, I don't believe the burden should be on the plaintiff in that particular case, especially when the cases are pretty clear.

[00:33:50] Speaker 03:
And take Churalsky.

[00:33:52] Speaker 03:
The court in Churalsky told the plaintiff that unless they complied with the court's order regarding the amendment to the complaint, that the action was going to be dismissed with prejudice.

[00:34:04] Speaker 04:
So you think the burden is on the court, the district court?

[00:34:08] Speaker 03:
Yes, Your Honor, I do, to make the order clear, otherwise it becomes a talk of the hour.

[00:34:12] Speaker 04:
Well, that's my point.

[00:34:14] Speaker 04:
Whose burden is it to seek clarification of the district court's order if it's not clear?

[00:34:21] Speaker 04:
And I assume, and this is pure speculation on my part, that whoever prepared the docket entry was trying to signal that.

[00:34:32] Speaker 04:
At least that's one way to read that docket entry.

[00:34:35] Speaker 03:
Well, Your Honor, I also go back again to my point that when defendants filed their motion to dismiss, they did not seek dismissal of the action without prejudice.

[00:34:44] Speaker 03:
They specifically sought dismissal of the complaint based on 12b1 and 12b6.

[00:34:49] Speaker 03:
And therefore, the court's original order simply granted defendant's motion to dismiss.

[00:34:57] Speaker 04:
And that the defendant- No, I said you did not include the defendant's motion to dismiss in your appendix.

[00:35:05] Speaker 04:
And I'm not saying you were required to.

[00:35:07] Speaker 04:
But given the nature of this case and our trying to figure out what's going on, I went to the docket to see what the defendants had said in their motion to dismiss.

[00:35:19] Speaker 04:
And I'm looking for my copy right now.

[00:35:21] Speaker 04:
But I thought they had very clearly, and I can look again, that they had moved to dismiss the complaint with prejudice.

[00:35:32] Speaker 03:
Your Honor, I don't believe that's true.

[00:35:35] Speaker 04:
I can clarify that later.

[00:35:38] Speaker 04:
All right, anything else?

[00:35:39] Speaker 04:
My colleagues, any questions?

[00:35:45] Speaker 02:
No, not for me.

[00:35:46] Speaker 04:
Well done.

[00:35:47] Speaker 04:
Anything further, Council, for appellant?

[00:35:50] Speaker 02:
No, Your Honor.

[00:35:51] Speaker 04:
Thank you very much, Council.

[00:35:52] Speaker 04:
We'll take it under advisement.