              United States Court of Appeals
                        For the First Circuit

No. 09-1495

                        TERRENCE FISHER ET AL.,

                        Plaintiffs, Appellants,

                                  v.

                         KADANT, INC., ET AL.,

                        Defendants, Appellees.


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF MASSACHUSETTS

              [Hon. Joseph L. Tauro, U.S. District Judge]


                                Before

                   Boudin and Selya, Circuit Judges,
                    and Laplante,* District Judge.


     Kevin P. Roddy, with whom Lynne M. Kizis, Daniel R. Lapinski,
Wilentz, Goldman & Spitzer, P.A., Scott R. Shepherd, Natalie
Finkelman Bennett, Nathan C. Zipperian, James E. Miller, Laurie
Rubinow, Shepherd, Finkelman, Miller & Shah, LLP, Robert T. Naumes,
and Thornton & Naumes LLP were on brief, for appellants.
     James W. Prendergast, with whom John G. Fabiano, Christopher
B. Zimmerman, Adam J. Hornstine, and Wilmer Cutler Pickering Hale
and Dorr LLP were on brief, for appellees Kadant, Inc. and Liberty
Diversified Industries, Inc.
     Edward W. Little, Jr., and McCarter & English, LLP on brief
for appellee Kadant Composites LLC.


                           December 23, 2009



     *
         Of the District of New Hampshire, sitting by designation.
           SELYA, Circuit Judge. This appeal grows out of an action

brought by four purchasers of allegedly defective products.            Their

complaint, filed in the United States District Court for the

District of Massachusetts, sought class certification and the

recovery   of    class-wide   damages   against   the   manufacturer,      its

parent, and a firm that had acquired its assets.

           Confronted    by   dispositive   motions,    Fed.   R.   Civ.   P.

12(b)(6), the district court dismissed the complaint for failure to

state a claim upon which relief could be granted.                The court

entered    judgment    accordingly.      The   plaintiffs      twice   moved

unsuccessfully to set aside the judgment and file an amended

complaint.      They now appeal only from the denial of the second of

these post-judgment motions.1

           This appeal requires us to decide what legal standard

obtained with respect to the motion under review.           That, in turn,

requires us to decide an antecedent question: what effect, if any,

does a passing reference to a possible future motion to amend,

contained in an opposition to a motion to dismiss, have on the

district court's authority to allow amendment of a dismissed

complaint after the entry of judgment?



     1
        All references in this opinion to the Civil Rules are to
the Civil Rules as they stood prior to the 2009 amendments. We
note, for the sake of completeness, that Rule 15(a) and Rule 59(e),
both discussed infra, have been amended, effective December 1,
2009. These amendments are of no consequence for purposes of this
appeal.

                                   -2-
            We hold that such a passing request is without effect in

these circumstances. Thus, the plaintiffs must carry the burden of

showing that they are entitled to relief from the previously

entered judgment.      They have not done so.        Accordingly, we affirm

the   denial   of    their    post-judgment     motion   (albeit   on   grounds

different than those relied on by the lower court).

I.    BACKGROUND

            The plaintiffs filed their original complaint on December

27, 2007.      They alleged that Kadant Composites LLC (Composites)

manufactured and sold defective decking and railing products and

failed to honor its concomitant warranty obligations. In addition,

the complaint sought to pierce the corporate veil and recover

against   Composites's       corporate    parent,   Kadant,   Inc.   (Kadant).

Among other things, Kadant allegedly had attempted to deflect

liability by (i) using Composites as its alter ego; (ii) selling

Composites's       assets    to   a   subsidiary    of   Liberty   Diversified

Industries, Inc. (LDI) in a purportedly fraudulent transaction; and

(iii) helping to set up a deliberately underfunded pool for paying

out warranty claims.         Finally, the complaint set forth breach-of-

warranty claims against LDI.

            Each defendant moved to dismiss the complaint for failure

to state an actionable claim.             Fed. R. Civ. P. 12(b)(6).         The

plaintiffs opposed the motions.               They did not, however, avail

themselves of their vested opportunity to amend as of right.               See


                                        -3-
Fed. R. Civ. P. 15(a) (providing that a plaintiff may amend his

complaint once, as a matter of right, before an answer is filed);

see also Connectu LLC v. Zuckerberg, 522 F.3d 82, 91, 95-96 (1st

Cir. 2008) (illustrating operation of the rule).            Nor did the

plaintiffs file a motion for leave to amend their complaint.

Instead, in the last line of their opposition to the motions to

dismiss, they stated: "If and to the extent that this Court finds

the Complaint deficient in any respect, Plaintiffs request leave to

amend to plead additional facts to cure any deficiency."

          In due course, the district court granted the Rule

12(b)(6) motions and dismissed the case.        Fisher v. Kadant, Inc.,

No. 07-12375 (D. Mass. Nov. 19, 2008) (unpublished order).           As to

Composites,   the   court   concluded   that   the   plaintiffs    had   not

sufficiently pleaded any of the asserted causes of action.           As to

Kadant, the court concluded that the plaintiffs had failed to plead

facts sufficient to pierce Composites's corporate veil.           And as to

LDI, the court concluded that the plaintiffs had failed to plead

facts sufficient to establish successor liability.        In the absence

of any pending motion for leave to file an amended complaint, the

court entered judgment for the defendants. The plaintiffs have not

appealed from the entry of this judgment and, thus, the correctness

of the order of dismissal is not before us.

          On December 4, 2008, the plaintiffs moved to reconsider

the judgment and for leave to file an amended complaint.                 The


                                  -4-
defendants objected. The court denied the motion without prejudice

on January 12, 2009, explaining that the plaintiffs had failed to

proffer a proposed amended complaint along with their motion.

Fisher v. Kadant, Inc., No. 07-12375 (D. Mass. Jan. 12, 2009)

(unpublished order).    The plaintiffs have not appealed from the

denial of this motion and, thus, the correctness of this order is

not before us.

            On January 27, 2009, the plaintiffs filed a renewed

motion seeking the same relief.    This time, however, they annexed

a proposed amended complaint to their motion. The defendants again

objected.     The district court analyzed this motion under the

liberal pleading standard of Fed. R. Civ. P. 15(a) and found it

wanting.    With respect to Kadant, the court determined that the

proposed amended complaint did not adequately plead facts anent

veil-piercing (alter ego liability).        Further, in the proposed

amended complaint the plaintiffs dropped their claims against LDI

but added claims against its subsidiary, LDI Composites Co. (the

acquirer of Composites's assets).       The district court determined

that, notwithstanding the change in parties, the proposed amended

complaint did not adequately plead successor liability.     As to all

of these claims, the court made an explicit finding that any

further attempt to amend would be futile.

            The court also rejected the plaintiffs' importuning that

they should be allowed to assert new warranty claims against


                                  -5-
Composites, noting that those claims were not supported by any new

facts and, accordingly, should have been raised earlier in the

litigation.         Because the proposed amended complaint stated no

actionable claim against any defendant, the court denied the

plaintiffs' motion with prejudice. Fisher v. Kadant, Inc., No. 07-

12375 (D. Mass. Mar. 3, 2009) (unpublished order).

            The plaintiffs took a timely appeal from this order.                 In

the appeal, the plaintiffs argue that the court below abused its

discretion     by    denying   their    renewed    motion    for    post-judgment

relief. The defendants counter that the district court reached the

right result even though the court applied too generous a legal

standard in evaluating the motion.            In this regard, the defendants

reason that because the district court entered judgment before the

filing of the motion, the court should not have looked to Rule

15(a) for guidance, but rather to the rules governing relief from

judgment.

II.    ANALYSIS

            As said, the plaintiffs have appealed only a single

order:   the   district     court's     denial    of   the   second    motion   for

reconsideration.        To determine the soundness of that order, we

first must identify the governing legal standard.                   In undertaking

that   task,   we    are   mindful     that   identifying     the    proper   legal

standard to be applied in ruling on a particular matter presents a

question of law and, thus, the district court's identification of


                                        -6-
the standard is subject to de novo review.              Vinick v. United

States, 205 F.3d 1, 7 (1st Cir. 2000); Inmates of Suffolk County

Jail v. Rufo, 12 F.3d 286, 291 (1st Cir. 1993).

             Ordinarily, Rule 15(a) governs a motion to amend a

complaint.    That rule directs that "[t]he court should freely give

leave [to amend] when justice so requires."             Fed. R. Civ. P.

15(a)(2).    If, however, a motion to amend is filed after the entry

of judgment, the district court lacks authority to consider the

motion under Rule 15(a) unless and until the judgment is set aside.

See Palmer v. Champion Mortg., 465 F.3d 24, 30 (1st Cir. 2006);

Maldonado v. Dominguez, 137 F.3d 1, 11 (1st Cir. 1998).         As long as

the judgment remains in effect, Rule 15(a) is inapposite.

             A good statement of this black-letter law is found in

Acevedo-Villalobos v. Hernández, 22 F.3d 384 (1st Cir. 1994), in

which   we   wrote:   "Unless   postjudgment   relief   is   granted,   the

district court lacks power to grant a motion to amend the complaint

under Rule 15(a)."     Id. at 389.   The rationale for the principle is

unassailable: once judgment has entered, the case is a dead letter,

and the district court is without power to allow an amendment to

the complaint because there is no complaint left to amend. Mirpuri

v. ACT Mfg., Inc., 212 F.3d 624, 628-29 (1st Cir. 2000).

             In the instant case, the plaintiffs did not file a motion

to amend their complaint until December 4, 2008.             That was well

after November 19, 2008, when the district court entered judgment.


                                     -7-
Consequently, the district court lacked authority to entertain the

motion to amend under the aegis of Rule 15(a) without first setting

aside the judgment under some rule geared to the accomplishment of

that task, say, Rule 59(e) or Rule 60(b).

           This court's reasoning in James v. Watt, 716 F.2d 71 (1st

Cir. 1983) (Breyer, J.), is especially instructive.            There, the

plaintiffs waited until after judgment had entered before moving

for leave to amend their complaint.        The court upheld a denial of

the motion, explaining:

           To require the district court to permit
           amendment here would allow plaintiffs to
           pursue a case to judgment and then, if they
           lose, to reopen the case by amending their
           complaint to take account of the court's
           decision. Such a practice would dramatically
           undermine the ordinary rules governing the
           finality of judicial decisions, and should not
           be sanctioned in the absence of compelling
           circumstances.

Id. at 78.

           In an effort to deflect the force of this precedent, the

plaintiffs   point   out   that,   in   their   memorandum   opposing   the

defendants' motions to dismiss, they made a passing request for

leave to amend in the event that the court found the complaint

wanting.     The district court did not refer to this contingent

request when granting the motions to dismiss, but it later ruled

that because the plaintiffs had "initially raised the possibility

of amending the Complaint before dismissal," their second post-



                                    -8-
judgment motion should be treated "as a Rule 15(a) motion to amend

the pleadings before judgment."

              For present purposes, then, the controlling question is

whether a contingent request to amend a complaint, contained in an

opposition to a motion to dismiss, trumps the final judgment rule

and reinstates the liberal standard of Rule 15(a) for the purpose

of adjudicating a motion for post-judgment relief, the object of

which is to put into play a new version of the complaint.             We hold

that it does not.

              Here, as is often the case, past is prologue.        In Gray v.

Evercore Restructuring L.L.C., 544 F.3d 320 (1st Cir. 2008), this

court dealt with the efficacy of such a contingent request to

amend.    There, the plaintiff's opposition to a motion to dismiss

his complaint declared that "in the event that the Court finds that

the Amended Complaint fails to state a claim, Plaintiff requests

leave    to   replead."    Id.   at   327.   We   refused   to    treat   this

contingent request as the functional equivalent of a pre-judgment

motion to amend; rather, we held flatly that such a "statement does

not constitute a motion to amend a complaint."         Id.       We therefore

concluded that the district court had no obligation to perform a

Rule 15(a) analysis.      Id.

              Earlier case law in this circuit is to the same effect.

See, e.g., ACA Fin. Guar. Corp. v. Advest, Inc., 512 F.3d 46, 57

(1st Cir. 2008) (explaining that a contingent request to replead,


                                      -9-
contained in an opposition to a motion to dismiss, "does not win

the day for the plaintiffs" because, if honored, it "would lead to

delays, inefficiencies, and wasted work"); Wayne Inv., Inc. v. Gulf

Oil Corp., 739 F.2d 11, 15 (1st Cir. 1984) (holding that contingent

request for leave to amend made in an opposition to motion to

dismiss does not qualify as a motion to amend sufficient to

preserve the amendment question for appeal).                 What Judge (now

Justice) Breyer wrote in James, quoted supra, is apropos here:

allowing    plaintiffs   to    hedge    their   bets   by   adding   a   cursory

contingent request in an opposition to a motion to dismiss would

encourage plaintiffs to test the mettle of successive complaints

and freely amend under Rule 15(a) if their original strategic

choices prove inadvisable.

            The plaintiffs attempt to counterpunch by citing our

decision in United States ex rel. Rost v. Pfizer, Inc., 507 F.3d

720 (1st Cir. 2007), abrogated on other grounds by Allison Engine

Co. v. United States ex rel. Sanders, 128 S. Ct. 2123 (2008).

There, the plaintiff appealed directly from the district court's

dismissal of his complaint and argued that, if the decision were

not reversed, he should at least be permitted to try anew by means

of amending his complaint.       Id. at 733.      In support, he noted that

he had made a contingent request to amend prior to the entry of

judgment.    Id. at 734.      The court of appeals upheld the dismissal




                                       -10-
of the complaint and, without much elaboration, remanded for

further consideration of whether to permit amendment.                 Id.

              Rost is off point.    That case, unlike this one, involved

an appeal from the granting of a motion to dismiss.                   See id. at

723.   In that procedural posture, the court of appeals may, in its

discretion and in the interests of justice, affirm the dismissal of

the complaint, yet nonetheless permit further amendment of it. See

Viqueira v. First Bank, 140 F.3d 12, 20 (1st Cir. 1998); Degnan v.

Publicker Indus., Inc., 83 F.3d 27, 29 (1st Cir. 1996); Rivera-

Gomez v. de Castro, 843 F.2d 631, 636 (1st Cir. 1988).                 Rost came

to the court of appeals in this posture — and the existence of the

contingent request to amend was merely one of the factors that bore

on the exercise of the appellate court's discretion. Cf. Gray, 544

F.3d     at   327   (cautioning    that     "[t]here    may     be    exceptional

circumstances in which a [pre-judgment] request to amend will

become    the   functional   equivalent      of   a    motion    to    amend").

              The case at hand is a horse of a different hue.               Here,

the plaintiffs did not appeal from the order of dismissal.                  Thus,

this case presents an entirely different question — a question

dealing with the legal standard that a district court should employ

in adjudicating a motion for reconsideration filed after the entry

of judgment.        The Rost court did not deal with this question

(indeed, the plaintiff there had not filed any post-judgment

motion).      To apply Rost to the materially different configuration


                                     -11-
of this case would undercut the procedural protections erected by

the Civil Rules to safeguard the finality of judgments. See, e.g.,

Fed. R. Civ. P. 59(e), 60(b).

            That ends this aspect of the case.              We hold that a

passing request for contingent leave to file an amended complaint,

made in an opposition to a motion to dismiss, is insufficient, in

and of itself, to bring a post-judgment motion for reconsideration

within the orbit of Rule 15(a).         Put another way, such a request is

without effect where, as here, no appeal is taken from the granting

of the underlying motion to dismiss. Consequently, the plaintiffs'

contingent request, embodied in a single sentence at the tail end

of their lengthy and heated opposition to the defendants' motions

to dismiss, did not transmogrify their post-judgment motion for

reconsideration into a Rule 15(a) motion.         Accordingly, the denial

of   that   motion   must   be    evaluated   under   the   more    stringent

requirements that apply to motions for relief from judgment.             Only

if the plaintiffs have satisfied those requirements will we have

occasion to decide whether the district court abused its discretion

in denying leave to amend under Rule 15(a).

            In   their   motion   for   reconsideration,    the    plaintiffs

mention two such rules: Rule 59(e) and Rule 60(b).          The former rule

provided at the relevant time, see supra note 1, that a "motion to

alter or amend a judgment must be filed no later than 10 days after

the entry of the judgment."          Fed. R. Civ. P. 59(e).        This time


                                     -12-
limit is mandatory.     See Fed. R. Civ. P. 6(b) (prohibiting any

extension of time under Rule 59(e)). An untimely motion under Rule

59(e) is a nullity.    Morris v. Unum Life Ins. Co., 430 F.3d 500,

502 (1st Cir. 2005).

            The   plaintiffs   filed    their   first   motion   for

reconsideration on December 4, 2008.        Viewed as a Rule 59(e)

motion, that motion was timely; that is, the motion was filed

within ten business days after the district court's entry of

judgment.    But that motion is not before us: the district court

denied it without prejudice because it did not contain a proposed

amended complaint, and the plaintiffs did not appeal from that

order.2

            This brings us to the plaintiffs' second (renewed) motion

for reconsideration — a motion that likewise sought relief from the

underlying judgment of dismissal. The plaintiffs filed that motion



     2
       The district court had the authority to reserve decision on
the first motion to reconsider and allow the plaintiffs to
supplement it with a proposed amended complaint. That step would
have preserved the motion's timeliness. See, e.g., Dresdner Bank
AG v. M/V Olympia Voyager, 465 F.3d 1267, 1271-72 (11th Cir. 2006);
U.S. E. Telecomms., Inc. v. U.S. W. Info. Sys., 15 F.3d 261, 263
(2d Cir. 1994). Here, however, that is not what the district court
did; rather, it denied the motion. The plaintiffs have not argued
that the district court's order was the functional equivalent of
allowing supplementation. The fact that the order specified that
the denial of the first motion was "without prejudice" did not
render the second motion timely. Cf. Chico-Velez v. Roche Prods.,
Inc., 139 F.3d 56, 59 (1st Cir. 1998) (holding that an untimely
refiling of a complaint is not excused simply because the district
court denied the initial filing without prejudice).


                                 -13-
on January 27, 2009.    Because this motion was not filed within the

ten-day window that opened following the entry of judgment, the

district court was without authority to consider it under Rule

59(e).    See id.   The fact that it was filed within ten days of the

denial of the first motion for reconsideration makes no difference.

See Acevedo-Villalobos, 22 F.3d at 390 (holding that even though

movant filed second Rule 59(e) motion within ten days of denial of

first such motion, second motion, which sought relief from the

underlying judgment, was untimely because it was filed more than

ten days after the entry of that judgment).

            The plaintiffs' alternative basis for their second motion

for reconsideration implicates Rule 60(b). Here, timeliness is not

an issue: a motion under Rule 60(b) must be filed "within a

reasonable time," Fed. R. Civ. P. 60(c)(1), and on certain grounds

within one year from entry of the judgment, id. (identifying Fed.

R. Civ. P. 60(b)(1)-(3)).       Either way, the plaintiffs' second

motion for reconsideration, when viewed as a Rule 60(b) motion, was

timely.

            Having isolated the only cognizable basis for the motion,

we next focus the lens of our inquiry on the standard of review.

An appellate court ordinarily reviews for abuse of discretion a

trial court's denial of a motion brought pursuant to Rule 60(b).3


     3
       Rule 60(b)(4), which permits relief from void judgments,
implicates different standards of review. See Shank/Balfour Beatty
v. Int'l Bhd. of Elec. Workers Local 99, 497 F.3d 83, 94 (1st Cir.

                                  -14-
Cintrón-Lorenzo v. Departamento de Asuntos del Consumidor, 312 F.3d

522, 527 (1st Cir. 2002).          Here, however, the district court did

not   review   the   motion     under    Rule   60(b)   at   all.     In   such   a

situation, one option is to remand to the district court for

consideration under the correct standard.                    See, e.g., Colón-

Santiago v. Rosario, 438 F.3d 101, 112 (1st Cir. 2006); John G.

Alden, Inc. v. John G. Alden Ins. Agency of Fla., Inc., 389 F.3d

21, 25 (1st Cir. 2004).

           In this case, we conclude that remand would be an empty

gesture.       The   district    court    applied   a    more    relief-friendly

standard than that which obtains under Rule 60(b) — the Rule 15(a)

standard — yet nonetheless denied relief.               When, as in this case,

the trial court uses a standard that is more generous than the

correct standard yet determines that the party seeking relief

cannot prevail, the court of appeals is free to conclude that the

same result would obtain under the less generous standard (and,

thus, need not remand).         See, e.g., TMF Tool Co. v. Siebengartner,

899 F.2d 584, 588 n.4 (7th Cir. 1990).

           Here, moreover, there is a second reason why remand is

unnecessary. The plaintiffs have not made a prima facie showing of

the elements needed to secure Rule 60(b) relief.                This, then, is an



2007). The present plaintiffs have not argued that the judgment
against them is void, and nothing in our discussion of the
plaintiffs' Rule 60(b) motion is meant to refer to motions under
Rule 60(b)(4).

                                        -15-
appropriate case for application of the principle that even if the

district court employs an incorrect legal standard, the court of

appeals, in lieu of remanding, may affirm the challenged ruling on

an alternate ground that is evident in the record.             See, e.g.,

InterGen N.V. v. Grina, 344 F.3d 134, 141 (1st Cir. 2003); Inmates

of Suffolk County Jail, 12 F.3d at 291; Amman v. Stow Sch. Sys.,

982 F.2d 644, 649 (1st Cir. 1992); cf. Societe Des Produits Nestle,

S.A. v. Casa Helvetia, Inc., 982 F.2d 633, 642 (1st Cir. 1992)

(concluding that, in lieu of remanding based on the district

court's use of an improper legal standard, the court of appeals may

apply the district court's key findings of fact to the correct

standard).

           The Rule 60(b) standard is familiar.       Success under that

rule requires more than merely casting doubt on the correctness of

the underlying judgment.       See Karak v. Bursaw Oil Corp., 288 F.3d

15,   19   (1st     Cir.   2002).    Rather,   Rule   60(b)    relief   is

"extraordinary in nature" and, thus, "motions invoking that rule

should be granted sparingly."       Id.    A party seeking relief under

Rule 60(b) must demonstrate "at a bare minimum, that his motion is

timely;      that    exceptional     circumstances    exist,     favoring

extraordinary relief; that if the judgment is set aside, he has the

right stuff to mount a potentially meritorious claim or defense;

and that no unfair prejudice will accrue to the opposing parties

should the motion be granted."       Id.


                                    -16-
           Rule 60(b) is not a monolith. It provides that the court

may relieve a party from a final judgment on any of six enumerated

grounds. See Fed. R. Civ. P. 60(b)(1)-(6). The plaintiffs suggest

two bases for invoking Rule 60(b).            We address these suggestions

separately.

           First, the plaintiffs assert that they are entitled to

relief from judgment based on newly discovered evidence.                    They

claim to have adduced this newly discovered evidence through their

counsels' eleven-month investigation between the commencement of

the   action   and   the    service   of     their   sequential   motions   for

reconsideration.

           Motions    for    relief    from    judgment   based   upon   newly

discovered evidence are typically analyzed under Rule 60(b)(2).

See, e.g., Karak, 288 F.3d at 19.            Although the plaintiffs do not

explicitly invoke subsection (2) of Rule 60(b) in their briefs on

appeal,4 we have previously declared, and today reaffirm, that

post-judgment relief will not normally be denied for the movant's

failure to designate the proper subsection of Rule 60(b).                   See

Mitchell v. Hobbs, 951 F.2d 417, 421 n.5 (1st Cir. 1991); see also

Acevedo-Garcia v. Vera-Monroig, 368 F.3d 49, 54 (1st Cir. 2004)

(reviewing defendants' post-judgment motion under Rule 60(b)(6)


      4
       The plaintiffs' failure to develop this argument in their
briefs may well constitute either a waiver or a forfeiture. See
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). We give
them the benefit of the doubt and assume for argument's sake that
no waiver or forfeiture transpired.

                                      -17-
even though defendants did not cite that subsection in their

motion).

              Moving   to   the   substance     of   the    claim,    we    find   it

unpersuasive.       The customary practice is to investigate first and

sue later, not vice-versa.        In any event, "a party who seeks relief

from a judgment based on newly discovered evidence must, at the

very least, offer a convincing explanation as to why he could not

have proffered the crucial evidence at an earlier stage of the

proceedings."       Karak, 288 F.3d at 19-20.

              Here, the plaintiffs have not offered any cogent reason

why they could not, in the exercise of due diligence, have obtained

the   evidence      earlier.      Nor    have    they      offered   a     plausible

explanation as to why they failed to seek leave to amend their

complaint based on this evidence before judgment entered.                    That a

strategic choice may have backfired is not a ground for relief from

judgment.

              The   plaintiffs'     second      asserted     basis    for     relief

implicates Rule 60(b)(1).          This rule provides that the district

court   may    grant   relief     from   a     judgment     based    on    "mistake,

inadvertence, surprise, or excusable neglect."                  Fed. R. Civ. P.

60(b)(1). The plaintiffs do not focus on their own inadvertence or

neglect but, rather, allege that this rule applies because the

district court made a mistake.                 This alleged mistake has two

closely related aspects: the court (i) overlooked the plaintiffs'


                                        -18-
contingent      request   to   amend,    made   at   the   tail   end    of    their

opposition to the motions to dismiss, and (ii) neglected to rule on

that request before entering final judgment.5

           The district court's actions cannot reasonably be termed

"a mistake."     We were presented with the same situation in Gray, in

which the district court did not make any reference to a passing

request    to    preserve      a   contingent     future    right       to    amend,

memorialized      only    in   the   plaintiffs'     opposition     to       several

simultaneous motions to dismiss.          We held that the passing request

was not tantamount to a motion to amend and, thus, because the

plaintiff had failed to move for leave to amend, "the district

court cannot be faulted for failing to grant such leave sua

sponte."     Gray, 544 F.3d at 327.             The same is true here: the

district court did not make a "mistake" in failing to grant leave

to amend before dismissing the case because no motion to amend was

pending at that time.




     5
       The courts of appeals do not agree on what circumstances
entitle a party to Rule 60(b)(1) relief based on an error of the
court. See 11 Charles Alan Wright, Arthur R. Miller & Mary Kay
Kane, Federal Practice and Procedure § 2858, at 293-95 (2d ed.
1995). Some courts hold that the term "mistake," as used in Rule
60(b)(1), applies to errors of the court, including errors of law.
See, e.g., United States v. Reyes, 307 F.3d 451, 455 (6th Cir.
2002); Cashner v. Freedom Stores, Inc., 98 F.3d 572, 576 (10th Cir.
1996). Conversely, this court has held that an error of law cannot
be regarded as a "mistake" within the purview of Rule 60(b)(1).
See Silk v. Sandoval, 435 F.2d 1266, 1267 (1st Cir. 1971). This
case does not require us to delve into this distraction.

                                        -19-
            We need go no further.          The short of it is that there are

no   exceptional     circumstances       here   such   as    would    justify   the

granting of extraordinary relief.

III.   CONCLUSION

                To   summarize,    the    plaintiffs    have    not     shown   any

cognizable basis for granting relief from judgment.                  Consequently,

we may simply affirm the only order appealed from — the order

denying   the    plaintiffs'      renewed    motion    for   reconsideration      —

without reaching the logically subsequent question of whether the

district court abused its discretion in denying leave to amend

under Rule 15(a).



Affirmed.




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