Fisher v. Kadant, Inc. ( 2009 )

  •               United States Court of Appeals
                            For the First Circuit
    No. 09-1495
                            TERRENCE FISHER ET AL.,
                            Plaintiffs, Appellants,
                             KADANT, INC., ET AL.,
                            Defendants, Appellees.
                  [Hon. Joseph L. Tauro, U.S. District Judge]
                       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?
            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
                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).
                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
    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
    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
    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
                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
    the standard is subject to de novo review.              Vinick v. United
    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.
    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
    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
    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-
    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,
    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
    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
    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
    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
    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
                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
           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.,
    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).
    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
                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
           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.
    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).
    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
               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.
               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
               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
               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)
           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.
    even though defendants did not cite that subsection in their
                  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
                  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'
    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.
           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.
                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.
                    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).