Rivendell Woods, Inc. Brief, Supplemental Memorandum
IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ELAINE L. CHAO, SECRETARY OF LABOR,
UNITED STATES DEPARTMENT OF LABOR,
RIVENDELL WOODS, INC., d/b/a RIVENDELL WOODS
and RIVENDELL WOODS FAMILY CARE; LANDRAW-I,
LLC; ANDREA WELLS JAMES, Individually;
and RODNEY JAMES, Individually,
On Appeal from the United States District Court
for the Western District of North Carolina
SUPPLEMENTAL MEMORANDUM OF THE SECRETARY OF LABOR
On May 27, 2005, this Court requested the parties to "address the issue of whether or not a final judgment has been entered by the district court in this case." The Secretary of Labor ("Secretary") submits that this Court has jurisdiction over this case because the district court's dismissal, despite being issued "without prejudice," was a final, appealable order.
1. In Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064, 1066 (4th Cir. 1993), this Court held that a complaint dismissed without prejudice can be considered a final order within the meaning of 28 U.S.C. 1291, and thus subject to appeal, only if "the grounds of the dismissal ma[de] clear that no amendment could cure the defects in the [the company's] case" (quoting Coniston Corp. v. Village of Hoffman Estates, 844 F.2d 461, 463 (7th Cir. 1988)). This Court, however, prefaced its holding with the statement that "[a]n order which dismisses a complaint without expressly dismissing the action is [generally] not . . . an appealable order." Id. at 1066 (internal quotation marks omitted; emphases added). In this regard, in Coniston, in an opinion authored by Judge Posner, the Seventh Circuit explained that
[t]he dismissal of a complaint is not the dismissal of the lawsuit, since the plaintiff may be able to amend his complaint to cure whatever deficiencies had caused it to be dismissed. As long as the suit itself remains pending in the district court, there is no final judgment and we have no jurisdiction under 28 U.S.C. §1291. This is particularly clear in a case such as the present one, where the plaintiff had not amended his complaint before it was dismissed and the defendant had not filed a responsive pleading; for then the plaintiff has a right to amend his complaint without leave of court. Fed. R. Civ. P. 15(a).
844 F.2d at 463 (citations omitted; emphases added). 
In the instant case, the district court's Memorandum and Order of Dismissal, under the heading "Order," states as follows:
It is, therefore, ordered that the Defendants' renewed and amended motion to dismiss is hereby granted and this action is hereby dismissed without prejudice in its entirety. It is further ordered that all remaining motions are hereby denied as moot.
(APP-195) (emphases added). Thus, despite using the words "without prejudice," the district court dismissed the action in its entirety. Moreover, the fact that all pending motions were denied as moot is further evidence that the district court dismissed the action itself.  Additionally, subsequent to the issuance of the Order, the court entered a "case closed" notation on the docket sheet, and the case was not returned to the Clerk's Office, as it had been when the court previously denied Defendants' motion to dismiss without prejudice to renew (APP-5-6). See infra.
2. Even if this Court concludes that the district court did not in fact dismiss the action,  the Secretary maintains that the district court's dismissal order was final.  Unlike the situation in Coniston, where the Seventh Circuit stated that a failure to amend a complaint before dismissal and the absence of a responsive pleading from defendants made it "particularly clear" that "there is no final judgment," 844 F.2d at 463, the Secretary here amended her original complaint (APP-38-43), and the Defendants filed two motions to dismiss as well as responsive pleadings to both the Secretary's original and amended complaints (APP-13-18, 44-50). Therefore, even if the district court had dismissed only the complaint, the Secretary could not have amended the complaint "as a matter of course." Fed. R. Civ. P. 15(a). 
3. Moreover, this Court recently has ruled that a dismissal of a complaint without prejudice is a final, appealable order when the applicable statute of limitations period has expired. Thus, in Curbelo v. Pendergraph, No. 04-7420, 124 Fed. Appx. 162, 2005 WL 468307 (4th Cir. 2005),  this Court stated that "[w]e note that Curbelo's complaint was dismissed without prejudice. Because some of the claims in his complaint were timely when filed, but would be barred by the statute of limitations if refiled at this juncture, the dismissal order is reviewable. Cf. Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064, 1067 (4th Cir. 1993)." See also Staley v. Rider, No. 04-6210, 114 Fed. Appx. 83, 2004 WL 2580984 (4th Cir. 2004); Howard v. Mr. Smith, No. 03-6777, 87 Fed. Appx. 309, 2004 WL 144221 (4th Cir. 2004); Vanfleet v. Coleman, No. 00-6300, 215 F.3d 1323 (Table), 2000 WL 631043 (4th Cir. 2000). In the present case, the applicable statute of limitations for non willful violations goes back two years from the date of the complaint. See 29 U.S.C. 255(a). The complaint originally was filed on June 11, 2003, and seeks relief for back wage violations that have occurred "since June 11, 2001." (APP- 4, 42). Thus, the statute of limitations period has expired with respect to all of the violations that occurred prior to two years from the filing of any new complaint.
4. A comparison of the district court's two orders in this case supports the conclusion that the instant order is final. The first Memorandum and Order, issued subsequent to the Defendants' motion to dismiss, states that "rather than dismiss the action at this point, the Court will provide the Plaintiff an opportunity to amend the complaint." (APP-37) (emphasis added). The Defendants' motion to dismiss was then "denied without prejudice to renewal in the event that on or before 15 days from entry of this Order the Plaintiff fails to cure the defective complaint by amendment." (App-37). An appeal by the Secretary at this juncture would have been interlocutory, because the action was still pending. See, e.g., Dew v. Dewald, No. 03-7847, 96 Fed. Appx. 147, 2004 WL 962751 (4th Cir. 2004) ("[A]s the district court explained, Dew can 'cure the defect by amending his complaint to comply with Rule 8.' Therefore the dismissal order is not appealable."). By contrast, the second Memorandum and Order provides that "the Plaintiff has been given every opportunity to make a case against the Defendants but has not done so. As a result, the complaint will be dismissed." (APP-195) (emphasis added). The district court thus effectively provided no further opportunities for amendment.
5. Finally, if the decision below is not regarded as final, the Secretary will have no opportunity to obtain review of the sufficiency of her complaint, which was filed in accordance with this Court's dictates in Hodgson v. Virginia Baptist Hospital, Inc., 482 F.2d 821 (4th Cir. 1973). The district court could continue to require the Secretary to include information in her complaints beyond what is required by Federal Rule of Civil Procedure 8(a), and then repeatedly dismiss the action "without prejudice." This is not the kind of situation contemplated by Domino Sugar in which a plaintiff can amend her complaint to cure any deficiencies. The Secretary files hundreds of Fair Labor Standards Act ("FLSA") cases annually, and her complaint in this case is consistent with her longstanding practice. Unlike the typical plaintiff, who can simply modify an individual complaint, it is crucial that the Secretary be able to challenge the district court's erroneous application of Federal Rule of Civil Procedure 8(a) to her FLSA complaints so as to maintain a uniform, nationwide practice. 
The Secretary therefore requests that this Court find that the district court order is final and appealable.
HOWARD M. RADZELY
Solicitor of Labor
STEVEN J. MANDEL
PAUL L. FRIEDEN
Counsel for Appellate Litigation
CAROL B. FEINBERG
U.S. Department of Labor
200 Constitution Ave., N.W.
Washington, D.C. 20210
CERTIFICATE OF SERVICE
This is to certify that copies of the foregoing Supplemental Memorandum of the Secretary of Labor has been served to the following by overnight mail this 3rd day of June 2005:
Jacqueline D. Grant, Esq.
Jackson D. Hamilton, Esq.
Kevin P. Kopp, Esq.
Robert & Stevens, P.A.
BB& T Building
1 Pack Square
Asheville, N.C. 28802-7647
Carol B. Feinberg
 The Seventh Circuit went on to conclude that "the order dismissing the complaint is final in fact and we have jurisdiction despite the absence of a formal judgment under Fed.R.Civ.P. 58. That is the case, notwithstanding the district judge's mysterious statement that he was dismissing the complaint 'in its present state.' The complaint sets forth the plaintiffs' case in full; there appear to be no disputed or unclear facts; and the district judge found that the complaint stated no claim under federal law and he then relinquished his jurisdiction of the pendent state law counts in accordance with the usual rule that pendent claims are dismissed when the federal claims drop out before trial. The plaintiffs have no feasible options in the district court; the case is over for them there." Coniston, 844 F.2d at 463 (citations omitted; emphasis added).
 The Secretary's motion to compel discovery and the Defendants' motion for a protective order were pending (APP-190).
 In the Memorandum portion of the decision, the district court states that it dismissed the complaint. (APP-195).
 This Court stated in Domino Sugar that to determine whether a district court's dismissal of a complaint without prejudice is a final order, "an appellate court may evaluate the particular grounds for dismissal in each case . . . ." 10 F.3d at 1066-67. Thus, the nature of the complaint itself, as well as the surrounding circumstances, are critical in determining finality.
 "A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served . . . ." Fed. R. Civ. P. 15(a).
 Any unpublished decisions cited in the Secretary's memorandum are attached. See Local Rules 36(c) and 28(b).
 This reasoning is consistent with the criteria of the collateral order doctrine, an alternative ground for review by this Court . See Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949). The collateral order doctrine provides that "to be subject to immediate [interlocutory] appeal, a ruling of the district court 'must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment.'" United States v. Moussaoui, 333 F.3d 509, 515 (4th Cir. 2003) (quoting Coopers & Lybrand, 437 U.S. 463, 468 (1978)). In this case, the district court's ruling conclusively determined that the Secretary's amended complaint was insufficient (a question separable from the merits), and the ruling is effectively unreviewable on appeal from a "final" judgment . But see, e.g., Vaughan v. Bledsoe, No. 03-6593, 77 Fed. Appx. 670, 2003 WL 22321458 (4th Cir. 2003) ("The order appealed from is neither a final order nor an appealable interlocutory or collateral order because Vaughan may proceed by simply amending his complaint to provide proof that he has exhausted his administrative remedies. See Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064, 1066-67 (4th Cir. 1993).").