PENN WEST ASSOCIATES, INC., a Corporation t/d/b/a THE WILKINS HOUSE v. KATHERINE COHEN, Co-Executrix of the Estate of Eugene M. Litman

PRECEDENTIAL
UNITED STATES
COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-4344
PENN WEST ASSOCIATES, INC., a
Corporation
t/d/b/a THE WILKINS HOUSE,
Appellant
v.
KATHERINE COHEN, Co-Executrix of
the Estate of Eugene M. Litman*;
MICHAEL LITMAN, Co-Executor of
the Estate of Eugene M. Litman*;
JAMES W. MCCARTHY; PENN WEST
ASSOCIATES, also known as PENN
WEST OFFICE BUILDING, a
limited partnership; BRANDYWINE
AGENCY; ALPINE
CONSTRUCTION CO., a Corporation;
PROPERTY DEVELOPMENT
ASSOCATES, INC., a Corporation;
PITTSBURGH INVESTMENT
COMPANY, a Partnership;
PATRICIA KATZ, general partner;
ABLE HOME CENTER, INC.;
DIANNA
BOBACK, an individual; MARGARET
MULL, an individual
*(Amended pursuant to Court
Order of May 21, 2004)
On Appeal from the
United States District Court for the
Western District of Pennsylvania
D.C. Civil Action No. 97-cv-01678
(Honorable Alan N. Bloch)
Argued September 15, 2003
Before: ALITO, AMBRO and
CHERTOFF, Circuit Judges
(Opinion filed June 9, 2004)
Bela A. Karlowitz, Esquire (Argued)
Daniel M. Flynn, Esquire
Karlowitz & Cromer
429 Forbes Avenue
1201 Allegheny Building
Pittsburgh, PA 15219
Attorneys for Appellant
Robert L. Potter, Esquire (Argued)
David A. Strassburger, Esquire
Strassburger, McKenna, Gutnick
& Potter
444 Liberty Avenue
Four Gateway Center, Suite 2200
Pittsburgh, PA 15222
James A. Ashton, Esquire
Suite 227
500 Lewis Run Road
Pittsburgh, PA 15122
Attorneys for Appellees
OPINION OF THE COURT

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AM BRO, Circuit Judge:
We review the District Court’s
November 5, 2002 order denying the
motion of Penn West Associates, Inc.
(“Penn West”) to re-open its civil RICO
case. That case was administratively
closed by order of the District Court on
August 19, 1999, after both parties
informed the Court that they tentatively
settled their dispute. In fact, the civil
RICO case was not concluded. The
District Court mistook its administrative
closure of the case as a final decision,
which mistakenly led it to treat Penn
West’s motion to re-open the case and list
it for trial as one under Federal Rule of
Civil Procedure 60(b). Thus it erred in
denying Penn West’s motion to re-open.
I. Background
On September 11, 1997, Penn West
filed suit in the Court of Common Pleas of
Allegheny County, Pennsylvania against
Eugene M. Litman (individually and in his
capacity as Executor of the Estate of H.
Raymond Litman); James W. McCarthy;
Penn West Associates, a partnership
comprised of Eugene M. Litman, Michael
A. Litman, and James W. McCarthy
(Eugene M. Litman, James W. McCarthy,
and Penn West Associates being
hereinafter collectively referred to as the
“Litman Group”); and numerous other
defendants. The suit arose from Lawrence
A. Levine’s purchase in 1993 of all of the
capital stock of Penn West from Eugene
M. Litman, James W. McCarthy, and the
Estate of H. Raymond Litman. Penn
West’s complaint contained, inter alia, a
cause of action under the Racketeer
Influenced and Corrupt Organizations Act
(“RICO”), 18 U.S.C. §§ 1961-1968.
According to the complaint, the defendants
had purportedly looted, and aided in the
looting of, Penn West’s assets between
February 1988 and late 1993, when
Eugene M. Litman, H. Raymond Litman,
and McCarthy owned the company.
Levine was never a named party to the
action.
On September 17, 1997, the action
was removed to the United States District
Court for the Western District of
Pennsylvania. Prior to trial, all counts of
the complaint were dismissed except for
the civil RICO claim against the Litman
Group. For trial purposes, the case was
also joined with a related qui tam action
under the False Claims Act, 31 U.S.C. §§
3729-3731, captioned United States ex rel.
Weinstein v. Litman, No. 96-1860. Robert
Potter, Esq. was lead counsel for the
Litman Group in both actions. Robert
Ridge, Esq. was lead counsel for the
private plaintiff in the False Claims Act
case. While the RICO case was pending
trial, Penn West and Levine both filed
bankruptcy petitions in the United States
Bankruptcy Court for the Western District
of Pennsylvania. Mary Reitmeyer, Esq.,
was appointed as Trustee for Penn W est in
its case, and thereafter obtained an order
appointing John Orie, Esq. as special
counsel for Penn West for purposes of
pursuing the RICO action.
On July 1, 1999, after six days of
trial in the RICO case, counsel for the
parties informed the District Judge that

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they had reached a settlement. During a
telephone conference on the record that
day among, inter alia, the District Judge,
Potter and Orie, Potter informed the
District Court that his clients (the Litman
Group) had agreed to pay $25,000 to the
United States Department of Justice to
settle the False Claims Act case and that
the Department of Justice had approved
the settlement. Furthermore, the Litman
Group had agreed to pay $75,000 to Penn
West to settle the RICO case. Potter
informed the District Court that “[m]utual
releases will be exchanged with everybody
in the RICO case[,] including attorneys.”
Potter also stated that, as part of the
settlement, the Litman Group would be
dropping its claims against Levine
individually in his bankruptcy proceeding
and would assert no further claims in
either Levine’s or Penn W est’s bankruptcy
proceedings. Moreover, the Litman Group
would be marking as satisfied any state
court judgments it had obtained against
Levine personally.1
Although Orie did not speak at the
conference, at no time did he object to the
description of the terms of the settlement.
The parties then agreed that they would
not file the settlement agreement of record
in the District Court because of concern
that, if filed, the agreement could not be
sealed. The District Judge ended the
conference by stating: “We’ll advise the
jury that they are discharged, and we’ll
wait to receive from you the settlement
papers that I have to approve.”
Seven weeks later, the Court,
having heard nothing further from the
parties and making no inquiry of them,
issued the following order:
AND NOW, this 19th day of
August, 1999, having been
advised by the parties of the
full and final settlement of
the above captioned matter
and there are no further
matters pending before the
Court,
IT IS HEREBY ORDERED
that the Clerk of the Court
mark the above captioned
matter closed.
The triggering premise of the order (final
settlement) proved, however, to be
premature. No settlement agreement was
ever drafted and settlement papers had
never been sent to, nor approved by, the
District Court. Nevertheless, the order
was entered by the Clerk and counsel were
notified accordingly.2
As a result of the August 19, 1999
order, the parties and the District Court
1The District Court’s opinion notes that
this reference to judgments against Levine
relates to a “long history of a
contemptuous and litigious relationship”
between Levine and one or more members
of the Litman Group.
2The release to settle the False Claims
Act case was nonetheless executed and the
Litman Group paid the $25,000 settlement
amount to the Department of Justice.

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appear to have operated under the
assumption that the litigation was
terminated. Approximately three months
later, Reitmeyer, the bankruptcy Trustee
for Penn West, filed a motion with the
District Court to compel enforcement of
the purported settlement terms of the
RICO case. The motion stated that the
settlement had not been finalized because
the Litman Group had insisted that Levine
personally join in the “mutual release”
referred to during the July 1, 1999
teleconference. The Litman Group’s
response to Penn West’s motion stated that
the settlement had not been completed for
the sole reason that Levine “consistently
refused to execute a general release in
favor of the Litman Group Defendants,
notwithstanding that he expects the Litman
Group Defendants to release all of their
claims against him individually.”3
A conference with the parties
(including Levine) was convened by the
District Court on November 18, 1999 to
discuss the motion. During this
conference, Levine stated that he was not
personally represented by Orie and that he
had never authorized Orie to include him
in the settlement. As later recounted in its
opinion, the District Court found it
“incredulous that the defendants would
pay money to [Penn West], solely owned
by Lawrence Levine, and yet leave
themselves open to lawsuits filed by
Levine.” Penn West Associates, Inc. v.
Litman, No. 97-1678, slip op. at 6 (W.D.
Pa. Nov. 5, 2002). Nevertheless, the
District Court stated that the case was
“settled and closed.” The Court further
stated that the settlement agreement, which
had not been made a part of the record,
was a contract between the parties whose
terms would have to be litigated in another
forum. It therefore denied Penn West’s
motion to enforce the settlement.4
3The Litman Group’s response
concerned the substance of the settlement
negotiations, indicating that it was Orie,
special counsel for Penn West, who
intended any settlement to encompass “all
matters.” During the negotiations, Potter,
counsel for the Litman Group, apparently
informed Orie that the Litman Group was
willing to release its claims against Levine
individually, but only in return for a
general release from, among others,
Levine personally.
4The District Court, in its November 5,
2002 opinion, subsequently noted that its
refusal to enforce the purported settlement
was based on Kokkonen v. Guardian Life
Ins. Co. of Amer., 511 U.S. 375, 380-81
(1994) (holding that a district court lacks
jurisdiction to enforce a settlement
agreement unless the court retains
jurisdiction over the agreement or
incorporates the terms of the agreement
into its dismissal order), and Sawka v.
Healtheast, Inc., 989 F.2d 138, 141 (3d
Cir. 1993) (holding that a district court
does not have the power to exercise
jurisdiction over a petition to enforce a
settlement “unless ... [it] is part of the
record, incorporated into an order of the
district court, or the district court has
m a n i f e s te d an intent to re t a in

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Penn West’s Trustee (Reitmeyer)
did not seek immediately to re-open Penn
West’s civil RICO case. Instead, she filed
an adversary proceeding in Penn W est’s
ongoing bankruptcy case to enforce the
purported settlement against the Litman
Group. On September 11, 2000, the
Bankruptcy Court issued an opinion
stating that
[t]here existed a mistake in
the understanding of the
parties as to the terms of
settlement. The mistake
was basic and central to any
settlement. Defendants
were not going to settle on
the terms offered without
the release from Mr. Levine
and Mr. Levine, believing
he had no control over
matters having to do with
the corporation, was willing
to let the Trustee settle for
the corporation, but he
individually was not going
to release the defendants.
The Bankruptcy Court concluded that, due
to the mistake, no settlement agreement
existed and therefore denied Penn West’s
motion to enforce the settlement.
The Trustee again did not return to
the District Court to seek re-opening the
closed RICO civil case. Rather, Penn
West proceeded through its bankruptcy
until March 15, 2002, w hen a plan of
reorganization was approved by the
Bankruptcy Court. Under the plan, Levine
regained control of Penn West.
Subsequently, on May 10, 2002,
Penn West filed with the District Court a
Motion to List the Case for Trial and Other
Relief. The motion related the foregoing
facts and that the Litman Group had filed
a substantial claim against Levine in his
ongoing individual bankruptcy case. Penn
West argued that the resolution of its civil
RICO case would affect substantially the
claims of the Litman Group and others in
Levine’s individual bankruptcy case.
Finally, the motion requested that “(i) the
docket entry in this Civil Action showing
that the case is settled be stricken and (ii)
the case be scheduled for trial forthwith . .
. .” No legal authority for this request was
cited.
The Litman Group’s memorandum
in opposition to Penn West’s motion
argued that “[t]o declare a ‘closed’ case
‘open’ for reasons other than clerical
mistake, it is necessary to file a motion for
relief from the final order under Federal
Rule of Civil Procedure 60(b).” Agreeing
with the Litman Group, the District Court
analyzed Penn West’s motion under Rule
jurisdiction”). See Penn West Associates,
Inc., No. 97-1678, slip op. at 6-7.

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60(b).5 On November 5, 2002, the Court denied the motion, holding that Penn West
could not satisfy the requirements of Rule
60(b)(1), (2), (3) or (6). Penn West filed a
timely notice of appeal from the District
Court’s order.
II. Jurisdiction
The District Court had jurisdiction
over Penn West’s civil RICO action
pursuant to 28 U.S.C. § 1331, which
provides for federal question jurisdiction,
and removal was proper under 28 U.S.C. §
1441. With respect to our appellate
jurisdiction, we have noted previously that,
while “it would appear that an order
denying a Rule 60(b) motion is appealable
under 28 U.S.C. § 1291,” this may not
always be the case. See Torres v. Chater,
125 F.3d 166, 167-68 (3d Cir. 1997). In
Torres, we stated:
There is an interdependence
between the “f inality”
required for Rule 60(b) and
section 1291. In some
instances, the Court of
Appeals may not entertain
an appeal [from a denial of a
Rule 60(b) motion] under
section 1291 because the
underlying order in the
district court is purely
interlocutory and, thus, not
within the scope of Rule
60(b), which applies only to
5Rule 60(b) states in pertinent part:
On motion and upon such
terms as are just, the court
may relieve a party or a
party’s legal representative
from a final judgment,
order, or proceeding for the
following reasons: (1)
m i s t a k e , i n a d ve r t e n c e,
surprise, or excusable
n e g l e c t ; ( 2 ) n e w l y
discovered evidence which
by due diligence could not
have been discovered in
time to move for a new trial
under Rule 59(b); (3) fraud
( w h e t h e r h e r e t o f o r e
denominated intrinsic or
e x t r i n s i c ) ,
misrepresentation, or other
misconduct of an adverse
party; (4) the judgment is
void; (5) the judgment has
been satisfied, released, or
discharged, or a prior
judgment upon which it is
based has been reversed or
otherwise vacated, or it is no
longer equitable that the
judgment should have
prospective application; or
(6) any other reason
justifying relief from the
operation of the judgment.
The motion shall be made
within a reasonable time,
and for reasons (1), (2), and
(3) not more than one year
after the judgment, order, or
proceeding was entered or
taken.

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“final” judgments and
orders.
Id. at 168 (citing Kapco Mfg. Co. v. C & O
Enters., 773 F.2d 151, 153 (7th Cir.
1985)). Thus, if the denial of the Rule
60(b) motion is itself interlocutory, we
normally do not have appellate jurisdiction
to review that denial. Torres recognized,
however, that even where an underlying
order is purely interlocutory, we may
nonetheless review a district court’s denial
of a Rule 60(b) motion if the denial has the
effect of “‘wrap[ping] up all matters
pending on the docket,’ thus making the
decision final.” Id. (quoting Kapco Mfg.
Co., 773 F.2d at 153). An example is a
district court’s interlocutory order
remanding a case to an administrative
agency for reconsideration. See id. If,
while the case was pending before the
agency, a party filed a Rule 60(b) motion
arguing that the remand had been procured
by fraud on the court, a denial of that
motion would be dispositive of the charge
of fraud. Id. Given those circumstances,
we held that the underlying remand order
may be considered final for purposes of
Rule 60(b) and the denial of a Rule 60(b)
motion would be a final decision,
reviewable under 28 U.S.C. § 1291. Id.
We are, however, not presented
with the difficulties addressed in Torres
because this case does not require us to
review the merits of the denial of a Rule
60(b) motion, for we conclude below that
it was error to apply Rule 60(b) in this
case. The decision before us is the District
Court’s denial of a motion to re-open an
administratively closed case. The practical
effect of that denial was to dismiss Penn
West’s action. Thus we hold that the
District Court’s November 5, 2002 order
was a final decision under 28 U.S.C. §
1291. See Brown Shoe Co. v. United
States, 370 U.S. 294, 306 (1962) (noting
that the Supreme Court has adopted a
“pragmatic approach to the question of
finality”); cf. In re Grand Jury
Proceedings (U.S. Steel-Clairton Works),
525 F.2d 151, 155 (3d Cir. 1975) (holding
that a district court’s indefinite stay of
federal grand jury proceedings pending a
state civil contempt action had “the
practical effect of a dismissal of the
proceedings” and hence was a final order).
We therefore have jurisdiction over this
appeal.
III. Standard of Review
A District Court’s denial of a Rule
60(b) motion generally is reviewed for
abuse of discretion. Montgomery County
v. Microvote Corp., 320 F.3d 440, 445 (3d
Cir. 2003). The District Court’s decision
to treat Penn West’s motion as a Rule
60(b) motion, however, is purely a
question of law, which we review de novo.
See United States v. Small, 333 F.3d 425,
427 (3d Cir. 2003) (citing United States v.
Singletary, 268 F.3d 196, 198 (3d Cir.
2001)).
IV. Discussion
On appeal, Penn West argues that
the District Court erred in denying its
motion to re-open the civil RICO case and
list it for trial, as its case did not settle and
the District Court’s August 19, 1999 order
marking the case closed was void. Penn

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West concludes that the District Court
should have reviewed the motion under
Rule 60(b)(4), which allows relief from a
“void judgment,” rather than conducting
an analysis under Rule 60(b)(1), (2), (3),
and (6). We agree that the District Court
erred, albeit for different reasons than
those articulated by Penn West. We first
address whether Rule 60(b) is the correct
rule governing Penn West’s motion. We
next address the significance of the
District Court’s August 19, 1999 order.
Finally, we respond briefly to the concerns
raised by our dissenting colleague.
A. Application of Rule 60(b)
Our analysis of Rule 60(b) begins,
as it must, with its text (see supra note 5).
It allows a party to seek relief only from a
“final judgment, order, or proceeding . . .
.” The application of the word “final” is
clarified by the Advisory Committee
Notes, which explain that
the qualifying word “final”
emphasizes the character of
the judgments, orders or
proceedings from which
Rule 60(b) affords relief;
and hence interlocutory
judgments are not brought
within the restrictions of the
rule, but rather they are left
subject to the complete
power of the court rendering
them to afford such relief
from them a s justice
requires.
Accordingly, we have held that Rule 60(b)
“applies only to ‘final’ judgments and
orders.” Torres, 125 F.3d at 168; see also
Kapco Mfg. Co., 773 F.2d at 154 (holding
that “Rule 60(b) must be limited to review
of orders that are independently ‘final
decisions’ under 28 U.S.C. § 1291”).6
The concept of “finality” is well-
settled. In Catlin v. United States, 324
U.S. 229, 233 (1945), the Supreme Court
defined a “final decision” for purposes of
appeal “generally [as] one which ends the
litigation on the merits and leaves nothing
for the court to do but execute the
judgment.” Interpreting Catlin, we have
described a final decision as “‘one which
disposes of the whole subject, gives all the
relief that was contemplated, provides with
reasonable completeness for giving effect
to the judgment and leaves nothing to be
done in the cause save to superintend,
ministerially, the execution of the
decree.’” Isidor Paiewonsky Assocs., Inc.
v. Sharp Props., Inc., 998 F.2d 145, 150
(3d Cir. 1993) (quoting In re Moody, 825
F.2d 81, 85 n.5 (5th Cir. 1987)) (emphasis
in original). Accordingly, “there is no
final order if claims remain unresolved and
their resolution is to occur in the district
court.” Aluminum Co. of Amer. v. Beazer
East, Inc., 124 F.3d 551, 557 (3d Cir.
6In Kapco, the Court reasoned that Rule
60(b) must be so limited because “[a] party
should not get immediate review of an
order for discovery, or one denying
summary judgment and setting the case for
trial, just by filing a Rule 60(b) motion to
set aside the order and then appealing the
denial of this motion.” 773 F.2d at 154.

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1997) (“Ordinarily, a final decision will
have two effects. First, the decision will
fully resolve all claims presented to the
district court. Second, after the decision
has been issued, there will be nothing
further for the district court to do.”). This
description accords with several other
courts of appeals. See Moody, 825 F.2d at
85 n.5; Youghiogheny & Ohio Coal Co. v.
Baker, 815 F.2d 422, 424 (6th Cir. 1987);
United States v. Western Elec. Co., 777
F.2d 23, 26 (D.C. Cir. 1985); see also Otis
v. City of Chicago, 29 F.3d 1159, 1163
(7th Cir. 1994) (“[A final judgment]
should be a self-contained document,
saying who has won and what relief has
been awarded . . . .”).
Is the District Court’s August 19,
1999 order a final decision? If not, relief
is unavailable under Rule 60(b). At the
outset, we note that the order did not
resolve, or even purport to resolve, any of
the claims that Penn West presented to the
District Court. Rather, its purpose was
solely to direct the Clerk of the Court to
mark Penn West’s case as closed.7 More
importantly, there was more for the
District Court to do. The parties had to
continue their litigation in both the District
Court and the Bankruptcy Court to
determine: (1) whether they had indeed
“settled” their case in July 1999, and (2)
(a) if so, the terms of that settlement and
whether to approve it, or (b) if not, how to
achieve a resolution of their ongoing
dispute. Accordingly, the District Court’s
order does not satisfy our definition of a
final decision.
Our conclusion is not altered by the
parties’ mistaken assumption that their
litigation was terminated by the District
Court’s August 19, 1999 order. The Court
itself contributed to this misunderstanding
with its November 18, 1999 statement on
the record that “our cases are settled and
closed, and that’s the way they are going to
stay, and if you have a dispute over the
terms of the settlement, that’s a contract
dispute, and you go ahead and litigate that
contract dispute wherever you please.”
This mistaken assumption on the part of
the District Court does not end the case.
See Bensalem Township. v. American
Fidelity Fire Ins. Co., 644 F.2d 990, 994
(3d Cir. 1981) (“[T]he boundaries of
section 1291 jurisdiction do not depend on
the trial court’s belief that a particular
7We also note that the factual basis
given for the order is incorrect. It stated
that the District Court had been “advised
by the parties of the full and final
settlement” of Penn West’s case. That
event, however, never occurred. All
parties agree that counsel and the District
Court did not communicate between the
July 1, 1999 teleconference and the August
19, 1999 order. The parties also agree that
no final settlement papers were sent to the
District Court. We thus cannot discern
from the record any substantive reason for
the issuance of the District Court’s order,
especially after telling the parties on July
1, 1999 that “[w]e’ll advise the jury that
they are discharged, and we’ll wait to
receive from you the settlement papers that
I have to approve.”

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decision is or is not ‘final’ . . . .”). That
the parties followed suit in the belief that
the District Court’s order terminated their
litigation does not make it so. Cf. Brown
Shoe Co. v. United States, 370 U.S. 294,
305 (1962) (holding that “the mere consent
of the parties to the Court’s consideration
and decision of the case cannot, by itself,
confer jurisdiction on the Court” in the
absence of a final judgment); Gerardi v.
Pelullo, 16 F.3d 1363, 1368 (3d Cir. 1994)
(“[W]e directed the parties to brief the
finality issue, notwithstanding their
agreement that the certification was
proper, for we consider the validity of a
Rule 54(b) certification ourselves.”).
Because the District Court’s August
19, 1999 order was not a final judgment or
order, we hold that it erred in analyzing
Penn West’s motion under Rule 60(b).
How then should the District Court have
analyzed Penn West’s motion? To that we
now turn.
B. Administrative Closings
To determine the nature of the relief
requested in Penn West’s motion to re-
open, we need to clarify the legal
significance of the District Court’s August
19, 1999 order directing the Clerk to mark
Penn West’s civil RICO case closed. We
conclude that the sole legal consequence
of this order was to remove Penn West’s
case from the District Court’s active
docket. Several courts refer to such an
order as an “administrative closing.”
The Court of Appeals for the First
Circuit has addressed the purpose and
significance of administrative closings in
Lehman v. Revolution Portfolio L.L.C.,
166 F.3d 389, 392 (1st Cir. 1999). There,
the plaintiff in a civil action requested the
District Court to stay its proceedings
because he had entered bankruptcy. Id. at
391. The District Court, responding to this
request, issued what it termed a
“Procedural Order of Dismissal.” Id. It
stated:
In order to avoid the
necessity for the counsel to
appear at periodic status
conferences, it is hereby
ORDERED that the above-
entitled action be and hereby
i s d i s m i s se d w i t h o ut
prejudice to either party
moving to restore it to the
docket if any further action
is required upon completion
and termination of all
bankruptcy or arbitration
proceedings.
Id. Upon receiving the order, “the clerk of
court closed the file, but did not enter a
final judgment.” Id. At the request of one
of the parties, the District Court re-opened
the case three years later and heard its
merits. Id. One of the appellant’s
arguments on appeal was that the Court
had improperly re-opened the case. Id.
The appellant argued that the case had
been dismissed and to re-open it three
years after dismissal violated the
timeliness requirements of Rule 60(b). Id.
The First Circuit clarified that the District
Court’s order, while labeled a “dismissal,”
was not a final judgment that could be

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corrected under Rule 60. Id. Rather, the
order did no more than administratively
close the case. Id. at 391-92. The fact that
the order had a misleading label “cannot
alter the character of its action.” Id. at 392
n.2.
The Lehman Court explained the
nature of an administrative closing as
follows:
Administrative closings
comprise a familiar, albeit
essentially ad hoc, way in
which courts remove cases
from their active files
without making any final
adjudication. See Corion
Corp. v. Chen, 964 F.2d 55,
56-57 (1st Cir. 1992)
(holding that an order
d e e m i n g a c a s e
“administratively closed”
was not a final, appealable
order absent a separate
document to signal the
court’s “view that the case
had concluded”). The
method is used in various
districts throughout the
nation in order to shelve
pending, but dormant, cases.
See, e.g., id.; In re
Arbitration Between Phila.
Elec. Co. v. Nuclear Elec.
Ins. Ltd., 845 F. Supp. 1026,
1028 (S.D .N.Y . 1994);
Mercer v. Allegheny Ludlum
Corp., 132 F.R.D. 38, 38-39
(W.D. Pa. 1990),8 aff'd, 931
8We think it telling the manner in which
the District Court in Mercer explained the
Western District of Pennsylvania’s
practice of issuing orders directing the
Clerk of Court to mark a case “closed.”
It is the practice of this
Court to administratively
close those cases where
representations are made
that settlement is imminent
or some other disposition of
the case is contemplated by
the parties other than
a d j u d i c a t i o n . T h e
administrative closing Order
reads, in part, “[N]othing
contained in this Order shall
be considered a dismissal or
disposition of this matter,
a n d s h o u l d f u r t h e r
proceedings in it become
necessary or desirable,
either party may initiate it in
the same manner as if this
O rd e r h a d n o t b e en
entered.”
132 F.R.D. at 39 n.1. In this case, the
District Court’s August 19, 1999 order
appears not to conform to the Western
District’s practice described above. If the
order had contained the language recited
by the Mercer Court, Penn West and the
Litman Group likely would have better
understood its nature and effect. The
failure to include such language, however,
did not render the District Court’s August
19, 1999 order any less an administrative

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12
F.2d 50 (3d Cir. 1991). We
endorse the judicious use of
administrative closings by
d i s t r i c t c o u r t s i n
circumstances in which a
case, though not dead, is
likely to remain moribund
for an appreciable period of
time.
Properly understood, an
administrative closing has
no effect other than to
remove a case from the
court’s active docket and
permit the transfer of
records associated with the
case to an appropriate
storage repository. “In no
event does such an order
bar a party from restoring
the action to the Court's
active calendar upon an
appropriate application.”
In re Arbitration, 845 F.
Supp. at 1028 (S.D.N.Y.
1994). Nor is the power to
resurrect reserved to the
parties. The court, too,
retains the authority to
reinstate a case if it
c o n c l u d e s t h a t t h e
administrative closing was
improvident or if the
circumstances that sparked
the closing abate.
Id. at 392 (emphasis added).9 Lehman
therefore ruled that the District Court’s
“Procedural Order of Dismissal” “did not
terminate the underlying case, but, rather,
placed it in an inactive status until such
time as the judge, in his discretion or at the
request of a party, chose either to
reactivate it or to dispose of it with
finality.” Id.
Lehman’s view of administrative
closings has been followed by the Courts
of Appeals for the Tenth and Eleventh
Circuits. See, e.g., Florida Ass’n for
Retarded Citizens v. Bush, 246 F.3d 1296,
1298 (11th Cir. 2001) (“Designating a case
“closed” does not prevent the court from
reactivating a case either of its own accord
or at the request of the parties.”); Cantrell
v. International Broth. of Elec. Workers,
AFL-CIO, Local 2021, 69 F.3d 456, 457
(10th Cir. 1995); see also American
Heritage Life Ins. Co. v. Orr, 294 F.3d
702, 715 (5th Cir. 2002) (Dennis, J.,
concurring) (“[T]he administrative closure
reflects nothing more than the federal
courts’ overarching concern with tidy
dockets; it has no jurisdic tional
significance.”); cf. Mickeviciute v. I.N.S.,
327 F.3d 1159, 1161 n.1 (10th Cir. 2003)
(noting that an “[a]dministrative closure of
closing.
9The Lehman Court also noted that
administrative closings “may permissibly
contain a built-in timetable under which it
automatically will expire, effectively
reinstating the case . . ., or, conversely,
mature into a final judgment if no action
inures within a specified period . . . .” 166
F.3d at 392 n.4 (citations omitted).

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13
[an immigration] case temporarily removes
the case from an immigration judge’s
calendar . . . . The administrative closing
of a case does not result in a final order. It
is merely an administrative convenience
which allows the removal of cases from
the calendar in appropriate situations”).
Lehman presents a reasoned
explication of a device that, when used in
correct context, enhances a district court’s
ability to manage its docket. We adopt
that rationale and hold that an order merely
directing that a case be marked closed
constitutes an administrative closing that
has no legal consequence other than to
remove that case from the district court’s
active docket.
We recognize that, in our case,
nearly three years have passed between the
District Court’s August 19, 1999 order to
mark the case closed and Penn West’s May
10, 2002 motion to re-open the case and
list it for trial. Yet we know of no
provision in the Federal Rules of Civil
Procedure by which the mere passage of
time can mature an administrative closing
into a dismissal or a final judgment or
order. As the Lehman Court noted, a
district court can provide, in the text of its
order, a built-in timetable under which the
administrative closing may automatically
expire, or, alternatively, mature into a final
decision. See 166 F.3d at 392 n.4. In this
case, however, the District Court’s August
19, 1999 order provided no such feature.
We can only conclude that the Court’s
order merely placed Penn West’s civil
RICO case in an “inactive status until such
time as the judge, in his discretion or at the
request of a party, chose either to
reactivate it or to dispose of it with
finality.” Id. at 392.
We also recognize the possibility
that there are cases in our Circuit in which
the last order docketed is an administrative
closing order. If those administrative
closings comport with the practice
described in Mercer, 132 F.R.D. at 39 n.1
(i.e., clearly indicating the status of the
litigation), there is little possibility that the
parties mistake the order as a final
decision. Here, however, it is easy to
understand why counsel believed their
case over. As noted already, that belief
does not a final decision make, for an
administrative closing order is not
sanctioned by the Federal Rules and does
not dispense with the technical
requirements of finality. These
requirements include not only a resolution
of the parties’ claims before the District
Court, but also compliance with Rules 54
and 58 of the Federal Rules of Civil
Procedure.10 It is indeed possible that, as
10Fed. R. Civ. P. 54(a) provides, in part:
“‘Judgment’ as used in these rules includes
a decree and any order from which an
appeal lies.” Fed. R. Civ. P. 58 (as in
effect when the District Court issued its
August 19, 1999 order; the rule was
rewritten, in April 2002, in a manner that
does not affect our analysis) required that
“[e]very judgment shall be set forth on a
separate document.” The separate
document requirement must be applied
“mechanically.” United States v.
Indrelunas, 411 U.S. 216, 221-22 (1973);

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14
a consequence of our holding that the
administrative closing order in our case
has no legal significance beyond removing
the case from the District Court’s docket,
litigants will return to the courts to re-open
their administratively closed cases. Our
fidelity to uniform and consistent
application of the Federal Rules, however,
does not permit us to hold otherwise.
We endeavor today only to correct
a misapplication of Fed. R. Civ. P. 60(b),
and to clarify the legal significance of the
District Court’s August 19, 1999 order
administratively closing Penn West’s civil
RICO case, so that the motion before the
District Court may be properly analyzed.
We decline to address whether Penn
West’s case may be equitably barred from
restoration to the District Court’s active
docket or whether the case may be
dismissed for failure to prosecute under
Fed. R. Civ. P. 41(b). The District Court
may consider these issues on remand.
C. The Dissent
As a final matter, a brief response
to the dissenting opinion is in order. We
note that our dissenting colleague does not
challenge our application of well-
established principles of finality or the
conclusion that an administrative closing
order does not constitute a final decision.
Instead, the dissent’s objection is to our
construction of the District Court’s August
19, 1999 order as an administrative closing
order rather than a dismissal. This
objection, however, is based solely on the
proposition that the District Court’s order
was “ambiguously worded.”11 Relying on
this supposed ambiguity, the dissent
proposes that we use extrinsic evidence in
order to conclude that the District Court
and the parties actually understood the
August 19th order to constitute a
dismissal, and that, ergo, it was a
dismissal.
We do not agree. The August 19th
order is plain that the case be marked
closed. This was predicated on the District
Court’s statement that it had been “advised
by the parties of the full and final
settlement” of the case and that “there
see also Gregson & Assoc. Architects v.
Government of the Virgin Islands, 675
F.2d 589, 591-92 (3d Cir. 1982)
(mandating a “mechanical” application of
Rule 58’s separate document requirement,
even where the appellant had mistakenly
believed that the district court had issued a
final judgment); United States v. Fiorelli,
337 F.3d 282, 286 (3d Cir. 2003) (applying
Rule 58’s separate document requirement
to determine the timeliness of motions for
post-judgment relief under Rules 59 and
60).
11The dissent does not explain whether
its finding of ambiguity is premised upon
an ambiguity on the face of the order or,
alternatively, an ambiguity that is only
apparent after considering extrinsic
statements made by the District Court. As
we describe below, however, we do not
consider extrinsic evidence unless the
order is ambiguous on its face.

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15
[were] no further matters pending before
the Court.” As we have noted above, this
factual predicate was certainly erroneous
because the District Court had yet to
receive and approve the final settlement
papers from the parties. But nothing in the
order mentions dismissal. With no patent
ambiguity in the August 19th order, no
need exists for parol or extrinsic evidence.
The judicial process works
best when orders mean what
they say. Surp rising
interpretations of simple
language – perhaps on the
basis of a judicial intent not
revealed in the words –
u n n e c e s s a r i l y c r e a t e
complex questions and can
cause persons to forfeit their
rights unintentionally. Parol
evidence about the judge’s
i n t e n t io n s s h o u l d b e
irrelevant, just as parol
evidence is excluded in
contract cases when the
language is clear.
Adams v. Lever Bros. Co., 874 F.2d 393,
395 (7th Cir. 1989); see also Berke v.
Bloch, 242 F.3d 131, 136 (3d Cir. 2001)
(“The judicial process works best when
orders mean what they say. . . . Just as
parol evidence is excluded in contracts
cases when the plain language is clear, so
too this type of [extrinsic] evidence about
a party’s intentions must be considered
irrelevant to an unequivocal and final
order.” (citing Adams, 874 F.2d at 395));
In re UNR Industries, Inc., 143 B.R. 506,
516 (Bankr. N.D. Ill. 1992) (“If an order is
clear and unambiguous on its face, there is
no need to look beyond the face of the
order to determine its meaning.”).
Applying this rule of construction, we
reject our dissenting colleague’s
proposition that we may look past the clear
and unambiguous words used in the
District Court’s August 19th order for
what the Court and the parties intended or
understood the order to mean.
Reminiscent of the emperor’s new
clothes, the dissent has us, in effect,
pretending to see something that does not
exist. Per the dissent, we should simply
pretend that Penn West’s case was
dismissed, even though (1) no language in
the August 19th order mentioned a
dismissal, (2) the District Court ignored
the fact that it was not to act absent
receiving and approving settlement papers
from the parties, and (3) treating the case
as dismissed might unknowingly subject
Penn West to a refiling obligation that
would trigger a statute of limitations
defense. The upshot: the dissent finds that
our decision is unfair to Penn W est’s
adversaries; we find unfair the dissent’s
treatment of Penn West. Penn West
should not be penalized when it was the
District Judge who failed to terminate
properly the case before him.
V. Conclusion
The District Court misunderstood
Penn West’s May 10, 2002 motion as one
for relief under Fed. R. Civ. P. 60(b). Rule

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16
60(b) did not govern Penn West’s motion
because the District Court’s August 19,
1999 order directing that Penn West’s case
be marked closed was not a final judgment
or order. That order accomplished no
more than an administrative closing of
Penn West’s case. Thus we vacate the
District Court’s November 5, 2002 order
denying the motion to re-open and remand
this matter for further consideration
consistent with this opinion.
Penn West Associates v. Litman
No. 02-4344
ALITO, Circuit Judge, dissenting.
In my view, the District Court was
correct in denying Penn West’s Motion to
List the Case for Trial and For Other
Relief. The majority’s holding – that this
case has remained on the District Court’s
docket in a state of suspended animation
for nearly five years – is unsound and may
cause problems in other cases. I therefore
respectfully dissent.
I.
The relevant facts are simple. After
receiving notice that a settlement had been
reached, the District Court waited a few
days and then, on August 19, 1999, signed
the order that is at issue here. The order
noted that the Court had been informed by
the parties “of the full and final
settlement” of the case and that “there
[were] no further matters pending before
the Court.” The Order then provided that
“the Clerk of the Court mark the above
captioned matter closed.”
Unfortunately, the order did not
state expressly that the case was dismissed,
but it is clear that the Court and the parties
viewed the order as one that ended the
litigation in the District Court. Indeed, the
majority notes that “the parties and the
District Court appear to have operated
under the assumption that the litigation
was terminated.” Maj. Op. at 3-4.
The District Court’s understanding
was confirmed a few months later when
the settlement fell apart and the bankruptcy
trustee for Penn West filed a motion
asking the District Court to enforce the
settlement. The District Court responded
that the case was “settled and closed,” that
it was going to stay closed, and that the
Trustee would have to file an independent
action if it wished to claim that the
settlement had been breached. Neither
before nor after this ruling did any party
complain that the Court was failing to
open a case that had not been dismissed
but had merely been administratively
closed.
Several years later, after Penn West

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17
emerged from bankruptcy and after the
Bankruptcy Court had declared that no
valid settlement agreement existed, Penn
West filed in the District Court a Motion
to List the Case for Trial and For Other
Relief. The motion did not specify the
legal authority on which it was based, but
the District Court, consistent with its view
that the case had been dismissed long ago,
assumed that Penn West was moving for
relief from a final judgment or order under
Federal Rule of Civil Procedure 60(b).
Concluding that the motion did not meet
the standard for relief under that rule, the
Court denied the motion, and Penn West
took the present appeal.
On appeal, Penn West has not
argued that the District Court erred in
treating its motion as a Rule 60(b) motion
for relief from a final judgment or order.
Rather, Penn W est’s sole argument is that
it is entitled to relief under Rule 60(b)(4)
because the order at issue is void because
it was based on the mistaken belief that the
case had been settled.
At oral argument, counsel for Penn
West insisted, even under questioning that
invited him to change his position, that the
August 19 order was a final order and that
the issue before our Court is whether his
client should have been granted relief from
that order under Rule 60(b). The
following exchange occurred:
The Court:The effect of the
order of Judge Bloch saying
the case was closed. Isn’t
that tanta m ount to a
dismissal of the complaint?
Counsel: It certainly is your
honor. That’s the reality of
life, that’s what it is . . . .
Audio tape: Transcript of Oral Arguments
in Penn West v. Littman, (Sep. 15, 2003)
at 093 (emphasis added).
Under further questioning, counsel
for Penn West held to this position:
The Court:. . . [W]hat’s the
legal significance of the
August 19, 1999 order of
Judge Bloch ordering that
the case be closed?
Counsel:It closes the case.
The Court:What’s the legal
significance of that?
Counsel:The case is over.
The case is over. What the
case does. What the order
does...
The Court:Are you sure you
want to say. . . Is the case
over or is it just an
administrative closing?
Id. at 111. Even after this suggestion that
counsel might not “want to say” that the
August 19 order signified that “[t]he case

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18
[was] over,” counsel for Penn West
continued to maintain the position that the
August 19 order was a final order from
which relief should have been granted
under Rule 60(b). See Audio tape:
Transcript of Oral Arguments in Penn
West v. Littman, (Sep. 15, 2003) at 163 (“I
am appealing [the District Court’s]
application of 60(b)(2) because I suggest
that my motion makes it pretty clear that
there is a denial of due process.”). Id. at
163 (emphasis added).
II.
In my view, the District Court’s
order of August 19, 1999, was exactly
what the Court and the parties understood
it to be: an order dismissing the case. The
fact that the order did not use the correct
terminology is unfortunate but not
dispositive. If the dismissal was without
prejudice, see Fed. R. Civ. Proc. 41(a)(2),
the order nevertheless removed the case
from the District Court’s docket, and Penn
West could not restore the case to the
docket simply by moving for such relief.
Rather, Penn West would have to refile its
complaint, assuming that its claims, which
date from the late 1980s and early 1990s,
were not time-barred.
Alternatively, if the dismissal
eventually ripened into a dismissal with
prejudice when Penn West stood pat, cf.
Berke v. Bloch, 242 F.3d 131 (3d Cir.
2001)(conditional dismissal became
dismissal with prejudice when parties
engaged in conduct “akin to standing on
their complaint”), the order was final;
Penn West’s motion was properly
categorized by the District Court as an
order for relief under Fed. R. Civ. Proc.
60(b); and because Penn West cannot
qualify for such relief, the order denying
its Motion to List the Case for Trial and
For Other Relief should be affirmed.
The majority, however, concludes,
contrary to the understanding of the
District Court and the parties, that the case
was never dismissed but merely placed on
hold – apparently indefinitely – and that
therefore Penn West is entitled to revive
the case, unless it is equitably barred from
doing so. The majority cites nothing in the
Federal Rules or in case law that supports
this result, and I see no justification for the
majority’s approach. When a dispute
arises as to whether an ambiguously
worded order is in effect a dismissal, we
should take a practical approach. If it
appears that the order was intended to have
the same effect as a dismissal and was
understood by all concerned as having the
same effect as a dismissal, the order
should be treated as such.
An example of this approach is
provided by Delgrosso v. Spang and Co.,
903 F.2d 234 (3d Cir. 1990). The order in
that case stated:
IT IS HEREBY ORDERED

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19
that the Clerk of Court mark
the above caption case
closed. Nothing in this
order shall be considered a
dismissal or disposition of
this matter and, should
further proceedings in it
b e co m e n e ce ss ar y o r
desirable, either party may
initiate it in the same
manner as if this order had
not been entered.
Id. at 236. We did not hold that this order
was interlocutory simply because it did not
state that the case was dismissed. Rather,
we analyzed the practical effect of the
order and observed:
[T]he order in this case
permits reinstatement and
contemplates the possibility
of future proceedings. The
order does not purport to
end litigation on the merits
and the parties agree that it
does not determine any
issues or resolve the entire
case. We recognize that the
conduct of the district court
raises the question whether
the order effectively, if not
expressly, brings the case to
a close. O n bala nce,
however, we believe that the
order is not final.
Id. Other courts of appeals have taken a
similar tack. See, e.g., American Heritage
Life Ins. Co. v. Orr, 294 F.3d 702, 707-08
(5th Cir. 2002), cert. denied, 537 U.S. 1106
(2003); Corion Corp. v. Chen, 964 F.2d
55, 56 (1st Cir. 1992).
The order involved here is nothing
like the “administrative closing” orders
that the majority discusses. As the
majority notes, those orders typically state
that the parties may restore the case to the
docket if further action is required. See
Maj. Op. at 10. See also Mercer v.
Allegheny Ludlum Corp., 132 F.R.D. 38,
38-39 (W.D. Pa. 1990), aff’d, 931 F.2d 50
(3d Cir. 1991(describing order generally
entered in the Western District of
Pennsylvania to accomplish a mere
“administrative closing”). The August 19,
1999, order in this case contained no
similar language and, as noted, it recited
that there were “no further matters pending
before the Court.”
The majority argues that the August
19 order was not a final order, but this
argument does not support vacatur of the
order denying the Motion to List the Case
for Trial and For Other Relief. First, even
if the August 19 order never ripened into a
dismissal with prejudice and thus never
became a final order, it would not follow
that Penn W est, years later, could restore
the case to the District Court’s active
docket simply by moving to do so. Penn
West would have to file a complaint. It
did not do so, and therefore the denial of

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20
its motion was correct.
Second, if the August 19 order
eventually became a dismissal with
prejudice, that order resolved all of the
claims that Penn West asserted in its
complaint and was thus final. Compare
Maj. Op. 9 (stating that the this order was
not final because it “did not resolve, or
even purport to resolve, any of the claims
that Penn West presented to the District
Court”). Once Penn West’s claims were
dismissed with prejudice and Penn West
failed to appeal, further assertion of those
claims was barred, and Penn West was
relegated to asserting claims under the
settlement agreement.
The majority contends that the
August 19 order was not final because
“there was more for the District Court to
do.” Maj. Op. 9. The majority elaborates:
[T]he parties had to
continue their litigation in
both the District Court and
the Bankruptcy Court to
determine: (1) whether they
had indeed “settled” their
case in July 1999, and (2)(a)
if so, the terms of that
settlement and whether to
approve it, or (b) if not, how
to achieve a resolution of
their ongoing dispute.
Maj. Op. 9.
This argument confuses the
question whether an order resolves all the
claims that are before a court with the
separate and (for present purposes)
irrelevant question whether an order
resolves all the issues that may arise
between the parties in the future. Suppose
that the August 19, 1999, order had stated
expressly that all the claims in the case
were dismissed with prejudice. There
would then be no basis for disputing the
finality of the order, but disagreements
might nevertheless arise between the
parties regarding the meaning or, indeed,
the validity of the settlement agreement.
The parties might then wish to return to
the District Court to litigate those
disagreements, but the parities’ desire to
resume litigation would not undermine the
finality of the order of dismissal.
For these reasons, I believe that the
majority’s analysis is incorrect, that the
District Court dismissed this case long
ago, and that Penn West’s motion to
restore the case to the active docket was
properly denied. The majority’s decision
is unfair to Penn West’s adversaries, and I
have some concern about the effect of this
decision on other cases. The majority
notes that there may be other “cases in our
Circuit in which the last order docketed is
an administrative closing order” and that
“[it] is indeed possible that, as a
consequence of our holding that the
administrative closing order in our case
has no legal significance beyond removing

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21
the case from the District Court’s docket,
litigants will return to the courts to re-open
their administratively closed cases.” Maj.
Op. 13-14. I see no justification for
creating this danger.

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