Notice: This opinion is subject to formal revision before publication in the
Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify
the Clerk of any formal errors in order that corrections may be made
before the bound volumes go to press.
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.