BIGGS, Chief Judge.
The case at bar presents a question of pleading. The plaintiff filed his complaint
The plaintiff did nothing until May 16, 1950 when, despite the fact that the suit had been dismissed, he filed a motion to require the production of certain documents in an attempt to ascertain the status of the operators of the bridge railway. The Transportation Company filed an answer to this motion on June 13 and on that day the plaintiff moved under Rule 15(a), Fed. Rules Civ.Proc. 28 U.S.C.A. for leave to file an amended complaint.
The plaintiff points out that Rule 15(a) on its face sets up no period of limitation. He takes the position that an amendment therefore may be effected under the rule at any time before the first responsive pleading. The defendants contend that no amendment under Rule 15(a) is permissible after a final judgment. An analogy is supplied by judgment for the defendant on a demurrer at common law where the plaintiff was not permitted to plead over and his suit was forever lost. The defendants endeavor to support this position on the ground that the Federal Rules of Civil Procedure have given such a wide range of weapons to a plaintiff that amendments may not be made after judgment except under Rules 59(e) and 60(b). The plaintiff, as we have indicated, does not invoke these rules.
The case at bar is close, save in one respect, to United States v. Newbury Mfg. Co., 1 Cir., 123 F.2d 453, 454. In those cases appeals had been taken within the time prescribed by law from judgments of dismissal. In the instant case the appeal is not from the judgment of dismissal but from the order of the court below refusing to permit the plaintiff to amend his complaint nearly eleven months after final judgment. The judgment did not expressly reserve leave to the plaintiff to amend his complaint. The situation presented by the operative facts in the instant case is indeed an anomalous one.
We agree with the Court of Appeals for the First Circuit in the Newbury cases that a motion to dismiss is not a responsive pleading and that, therefore, if the provision of Rule 15(a), "at any time before a responsive pleading is served", be construed literally the plaintiff could amend his motion under Rule 15(a). We also agree with the First Circuit that a construction of Rule 15(a) which would permit amendment until the end of time is a most implausible one for there could never be an end to a litgation or to the cloud created by a lis pendens. We conclude also that there is some discretionary power in a United States District Court to vacate or set aside a judgment of dismissal within the period of time prescribed by Rule 59(b) and (e), ten days, or by Rule
In the instant case, as we have pointed out, the court below inadvertently made use of the six months limitation contained in Rule 60(b) as it existed prior to the 1948 amendment, instead of the one year period of limitation now prescribed. If the granting of an amendment was to be rested on the trial court's discretion perhaps we should remand the case to the court below for further consideration. But the plaintiff insists that he is entitled to the amendment not as an exercise of discretion but as of right. He has made this plain not only in his brief and by oral argument but also because he has put nothing before the court below on which its discretion might operate. He has filed a naked motion to amend. Since the plaintiff is not entitled to amend as a matter of right and since he has supplied no field in which the court below properly could have exercised its discretionary power, the judgment will be affirmed.