Full opinion text
MEMORANDUM OPINION AND ORDER REGARDING PLAINTIFFS’ MOTIONS FOR RECONSIDERATION AND LEAVE TO FILE AMENDED COMPLAINT AND DEFENDANTS’ MOTIONS TO STRIKE TABLE OF CONTENTS I. PROCEDURAL AND FACTUAL BACKGROUND....................... 1482 A. Procedural Background............................................. 1483 B. Factual Background................................................ 1485 1. Securities Allegations.......................................... 1486 TABLE I: Comparison Of Securities Allegations In The First And Second Amended Complaints................................... 1486 2. RICO Allegations.............................................. 1489 TABLE II: Comparison Of RICO Allegations In The First And Second Amended Complaints................................... 1490 II. LEGAL ANALYSIS ................................................... 1493 A. The Motion For Reconsideration.................................... 1493 1. Applicable standards........................................... 1494 a. Rule 59(e) motion to alter or amend........................ 1494 b. Rule 60(b) motion for relief from judgment................. 1496 2. Reconsideration here........................................... 1498 a. Reconsideration in light of controlling precedent............. 1498 i. The disregarded precedent........................... 1498 ii. Import of the precedent.............................. 1499 iii. Irrelevance of the precedent to this court’s ultimate determination ............................................ 1500 b. Reconsideration of failure to include leave to amend......... 1501 i. Opportunity to replead after dismissal................. 1502 ii. Leave to amend here................................ 1505 3. Summary Regarding The Motion For Reconsideration............ 1507 B. Adequacy Of The Second Amended Complaint........................ 1507 1. Repleaded securities claims..................................... 1507 a. Commonality.............................................. 1509 i. Horizontal commonality............................... 1509 ii. Vertical commonality................................. 1513 b. Expectation of profit from the effort of others.............. 1514 2. Repleaded RICO claims........................................ 1516 a. A proper RICO enterprise................................. 1516 i. Association-in-fact enterprises......................... 1516 ii. Enterprises consisting of parents and subsidiaries....... 1520 iii. The enterprise alleged here .......................... 1521 b. Pattern or racketeering.................................... 1523 c. Predicate acts ............................................ 1524 i. Mail, wire, and common-law fraud..................... 1524 ii. Bankruptcy fraud.................................... 1525 3. Summary of disposition of the motion for leave to amend........ 1525 C. Interlocutory Appeal ............................................... 1525 III. CONCLUSION........................................................ 1527 BENNETT, District Judge. In its prior order dismissing the complaint in this litigation, DeWit v. Firstar Corp., 879 F.Supp. 947 (N.D.Iowa 1995), the court observed that this lawsuit, asserting claims pursuant to RICO and securities laws, raised a number of probing and nettlesome questions. Now, confronted with plaintiffs’ motion to reconsider its prior ruling and for leave to file a second amended complaint, the court finds itself once more among the nettles. Plaintiffs particularly take the court to task for its conclusion, in dismissing the first amended complaint, that the cattle feeding contracts at issue here are not securities as a matter of law. Plaintiffs assert that the court’s error in dismissing the securities claim is made even more apparent in the repleading of that claim in the proffered second amended complaint. However, rather than standing upon the RICO allegations made in the first amended complaint, the plaintiffs have submitted drastically altered allegations concerning the definition of the “RICO enterprise” in their proffered second amended complaint. Plaintiffs have thereby dramatically changed the inquiry concerning the adequacy of the pleading of their RICO claims. Plaintiffs, investors in and suppliers to a cattle investment scheme called “Adventure Cattle,” filed this lawsuit against a bank holding company and subsidiary banks that provided banking services for Adventure Cattle, its principal, John Morken, and Morken’s related business, Spring Grove Livestock Exchange (SGLE), and against the bank officer responsible for the accounts in question. In a first amended complaint, plaintiffs alleged violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), the Securities Acts of 1933 and 1934, and also asserted state common-law claims of fraud and wrongful conversion or set-off. The court granted defendants’ motion to dismiss the first amended complaint for failure to state a federal claim upon which relief can be granted and declined to exercise supplemental jurisdiction over state law claims. Plaintiffs now move the court to reconsider dismissal of the first amended complaint, arguing that the court made factual and legal errors in dismissing the first amended complaint and should have granted plaintiffs leave to file a second amended complaint to cure the defects the court perceived in the first amended complaint rather than simply dismissing it. Plaintiffs subsequently filed, as a supplement to their motion for reconsideration, a “second amended complaint” in order to demonstrate that their claims could be pleaded with sufficient particularity. Defendants resist the motion to reconsider, asserting that the court rightly dismissed the first amended complaint. Defendants further challenge either the filing or consideration by the court of the second amended complaint. In the event that the court considers the adequacy of the second amended complaint, defendants argue that it fails to cure the critical flaws identified by the court in the first amended complaint. Defendants therefore argue that plaintiffs should be denied leave to file the second amended complaint on the ground that the amendment is futile. I. PROCEDURAL AND FACTUAL BACKGROUND The procedural and factual background for this lawsuit is discussed extensively in the court’s prior ruling. See DeWit v. Firstar Corp., 879 F.Supp. 947, 954-959 (N.D.Iowa 1995). The court will therefore present here only procedural matters arising since the court dismissed the first amended complaint and the new factual allegations of the proffered second amended complaint. A, Procedural Background By order dated March 1, 1995, this court dismissed plaintiffs’ second amended complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. The court held that: (1) plaintiffs’ RICO claim failed to plead sufficiently the elements of a RICO offense under 18 U.S.C. § 1962(c); (2) plaintiffs failed to state claims of securities laws violations, because the Adventure Cattle contracts at issue are not “securities” under the test articulated by the Supreme Court in Securities and Exchange Comm’n v. W.J. Howey Co., 328 U.S. 293, 66 S.Ct. 1100, 90 L.Ed. 1244 (1946), and therefore were not subject to the securities laws; (3) plaintiffs’ state law claims of common-law fraud did not meet the heightened pleading requirements for fraud under Fed. R.Civ.P. 9(b); and (4) the court should decline to exercise supplemental jurisdiction over the only surviving state-law claim, for wrongful conversion or set-off, because all federal claims had been dismissed. On March 9, 1995, plaintiffs moved the court to reconsider the dismissal of the first amended complaint. In that motion for reconsideration, plaintiffs assert that the court dismissed the first amended complaint in large part because the complaint lacked sufficient particularity. Plaintiffs argue, however, that the infirmities can be cured, and that the court should have allowed plaintiffs thirty days within which to file an amended complaint. Plaintiffs also contend that the court improperly departed from precedent of the Eighth Circuit Court of Appeals in holding that the Adventure Cattle contracts were not securities, but do not identify in their motion what that precedent was. Plaintiffs filed no brief in support of their motion for reconsideration at the time of its filing, but instead requested twenty days within which to file a memorandum and thirty days within which to file a second amended complaint. Defendants responded to the motion to reconsider on March 22,1995. In their resistance, defendants attack plaintiffs’ motion to reconsider as failing to state with particularity the grounds therefor as required by Fed. R.Civ.P. 7(b)(1). Defendants suggest that if plaintiffs could indeed cure the defects in the first amended complaint, they should have submitted a proposed amended complaint. Defendants then argue that plaintiffs’ motion fails to articulate or demonstrate compliance with the standards for reconsideration of a ruling or to state or satisfy the grounds for amendment of a complaint. Defendants contend that plaintiffs’ proper course was to pursue an appeal of the dismissal of their first amended complaint. Plaintiffs next filed a reply to defendants’ resistance on March 27, 1995. In that reply brief, plaintiffs assert that it would be an abuse of discretion for the court not to permit plaintiffs to amend their complaint after its dismissal, but they cite no authority for that proposition. Rather, plaintiffs assert that leave to amend pursuant to Fed.R.Civ.P. 15(a) should be freely given. Plaintiffs argue that they could not attach an amended complaint to the motion to reconsider, because they first had to seek modification of the court’s March 1,1995, ruling to allow them to file an amended complaint. They also argue that they had inadequate time to file such an amended complaint between the time the court summarily dismissed the complaint and the deadline for filing a motion to reconsider the dismissal. Plaintiffs contend that huge numbers of documents obtained in discovery since the filing of the first amended complaint would allow them to cure any pleading deficiencies with a second amended complaint. Plaintiffs filed an affidavit of counsel in support of this contention. The reply brief then addresses the merits of reconsideration as to one of the court’s conclusions, asserting that in Booth v. Peavey Co. Commodity Servs., 430 F.2d 132 (8th Cir.1970), the Eighth Circuit Court of Appeals held that only vertical commonality, not horizontal commonality, was a requirement of a “security,” and that this court improperly departed from that decision in its ruling. On April 24, 1995, plaintiffs filed a supplement to their motion to reconsider and motion for leave to file an amended complaint consisting of a proposed second amended complaint. Whereas the first amended complaint was twenty-two pages and sixty-seven paragraphs long, the second amended complaint is seventy-five pages and one hundred thirty-six paragraphs long. Plaintiffs summarize the changes as including the following: (1) repleading of the RICO enterprise as an association in fact of the Firstar banks and Firstar Corporation with new allegations as to the common purpose of the enterprise and the means employed to achieve that purpose; (2) specification of the RICO defendants as Miley, Firstar Milwaukee, Firstar Wausau, and Firstar Corporation and addition of two new RICO defendants, Alfonso Buscemi and Roberto Vinent, both officers of Firstar Milwaukee; (3) pleading of three specific fraudulent banking schemes and their interrelatedness as demonstrating a RICO “pattern”; and (4) “clarifying” the horizontal and vertical commonality of the Adventure Cattle program and facts in support of plaintiffs’ securities claims founded on Rule 10b-5. Although they had twitted plaintiffs for failing to file an amended complaint, on May 3,1995, defendants moved to strike plaintiffs’ proffered second amended complaint as untimely and inappropriate. Defendants assert that any “supplement” should have been filed with the motion for reconsideration within ten days of the judgment and cannot now be used to support the vague and condusory motion to reconsider, which itself failed to comply with Fed.R.Civ.P. 7. Defendants also argue that the supplemental affidavits of counsel and a former bank employee filed in support of plaintiffs’ reply brief present only facts known to the plaintiffs prior to dismissal of the first amended complaint and therefore provide no ground for reconsideration under Fed.R.Civ.P. 59. In their brief, defendants then provide a thumbnail sketch of arguments that the proposed second amended complaint is futile, but seek leave to brief that issue more fully. Plaintiffs resisted the motion to strike on May 22, 1995. Plaintiffs assert that their original motion to reconsider was timely and presented with sufficient clarity plaintiffs’ argument that the court made factual and legal errors that could be resolved by the filing of a second amended complaint. They also assert that they filed a brief in support of the motion to reconsider within the twenty days of filing of the motion itself, as they had requested leave to do, even though the court had not granted that part of their motion requesting an extension of time to file such a brief. Plaintiffs assert that because they agreed with defendants’ statement that a proposed amended complaint would help clarify matters, they filed such a proposed amended complaint. However, plaintiffs contend that the silence of the March 1, 1995, ruling on leave to amend meant that plaintiffs could not file such an amended complaint until they had first obtained leave to do so through a motion for reconsideration and modification of the March 1,1995, ruling. Plaintiffs then assert the adequacy of the new allegations in the proposed second amended complaint. Plaintiffs contend that the revised pleading of the RICO enterprise and the more detailed pleading of the predicate acts are sufficient to sustain the RICO claims over objections made pursuant to Fed. R.Civ.P. 12(b)(6). They also contend that the Adventure Cattle program “was not accurately portrayed in the Court’s March 1, 1995, ruling in several important particulars,” and that the repleaded allegations will allow the court to correct its errors. The nature of the repleaded allegations is considered in greater detail below in the court’s discussion of the factual background for this decision. On May 30, 1995, defendants submitted a brief in opposition to the proposed second amended complaint. Defendants assert that neither the RICO nor the securities claims as repleaded state claims upon which relief can be granted. Even as repleaded, defendants contend, the Adventure Cattle scheme lacked either horizontal or vertical commonality, and did not provide an expectation of profits solely from the efforts of others, such that the underlying contracts could not be securities. Defendants contend that the repleaded RICO allegations still do not identify a proper RICO enterprise or a pattern of racketeering. Thus, defendants contend that the second amended complaint fails as futile. The court held oral arguments on these pending motions on June 1, 1995. At the oral arguments, plaintiffs were represented by counsel Randall A. Roos of the Roos Law Office, P.C., in Sioux Center, Iowa. Defendants were represented at the oral arguments by counsel Thomas L. Shriner, Jr., and G. Michael Halfenger of Foley & Lardner in Milwaukee, Wisconsin, and Jeffrey L. Poulson of Corbett, Anderson, Corbett, Poulson, Flom & Vellinga, in Sioux City, Iowa. The oral arguments were spirited and informative. In light of those arguments and the parties’ written submissions, the court now turns to a more detailed discussion of the factual background for this case. B. Factual Background Because of the procedural posture of this case, the court will here identify differences between the facts as alleged in the first amended complaint and as alleged in the plaintiffs’ proffered second amended complaint. In the event the court determines that it should consider the proffered second amended complaint, the factual allegations of that amended complaint will be treated as required under Fed.R.Civ.P. 12(b)(6) and the standards for post-dismissal amendment to determine whether the second amended complaint is only a futile attempt to cure the deficiencies found in the first amended complaint. Like the first amended complaint, the second amended complaint is in five counts. Count I of the second amended complaint, as did Count I of the first amended complaint, alleges a violation of the provision of the Racketeer Influenced And Corrupt Organizations Act, 18 U.S.C. § 1962(c), which pertains to interest in or control of a RICO enterprise, but adds alleged violation of 18 U.S.C. § 1962(d), which prohibits conspiracy to violate any of the other provisions of § 1962. Counts II and III again allege violations of the Securities Acts of 1933 and 1934. The gravamen of Count II is that Firstar Milwaukee was a “seller,” along with Morken, of unregistered securities in the form of Adventure Cattle investment contracts in violation of §§ 5 and 12(1) of the 1933 Act. Count III of the second amended complaint again alleges violation of § 12(2) of the 1933 Act, and § 10(b) of the 1934 Act and Rule 10b-5 promulgated thereunder and adds alleged violation of §§ 12(2) and 17(a) of the 1933 Act. The gravamen of this count is still that Firs-tar Milwaukee failed to make full and fair disclosure of material information to Adventure Cattle investors, and adds further allegations that Firstar Milwaukee breached a fiduciary duty in failing to make those disclosures. Count IV is again a common-law claim of wrongful conversion or set-off, but with the responsible defendant identified as “Firstar Milwaukee,” not merely as “Firs-tar.” Finally, Count V is a newly amended common-law claim of fraud, this time identifying the responsible defendants as “Firstar Milwaukee” and “Firstar Wausau,” not merely as “Firstar.” The parties have directed their attention in the pending motions exclusively to the repleaded federal claims under RICO and securities laws, and the court’s supplemental jurisdiction over the state common-law claims, of course, depends upon the viability of one or more of the federal claims. The court will therefore focus, as did the parties, on the repleaded federal claims. 1. Securities Allegations The second amended complaint provides more extensive allegations concerning the operation of the Adventure Cattle program than did the first amended complaint. Because it is upon these allegations that the court’s determination of whether or not the Adventure Cattle contracts were securities depends, if the court does indeed consider the second amended complaint, those allegations are presented here in full. For the sake of comparison, the allegations of ¶ 26 of the first amended complaint are presented side-by-side with the comparable allegations of ¶47 of the second amended complaint: TABLE I: Comparison Of Securities Allegations In The First And Second Amended Complaints The sample “Cattle Feeding Contract,” appended to the second amended complaint as Exhibit C, states that Morken would be “fully responsible for the care of the above described cattle” including responsibility for health and nutrition programs, cost of inputs, death loss, and market protection (including breakeven point). Second Amended Complaint, Exhibit C. The contract provides further that “Morken will be fully responsible for the marketing of the above described cattle.” Id. In the securities claims proper, the second amended complaint places new emphasis on the operation of the Adventure Cattle program. It provides new allegations about the extent to which Morken “pooled” investors’ cattle, the extent to which investors purportedly relied upon Morken’s ability to make their investment profitable, and the extent to which the fortuity of the investment allegedly depended on the fortuity of Morken’s fortunes. New allegations also denigrate the extent to which individual investors had any decision-making authority with regard to the investment. 2. RICO Allegations The RICO allegations in the second amended complaint demonstrate an even more extensive revision as compared to the first amended complaint. The first amended complaint identified the RICO enterprise as “Morken’s enterprises,” and alleged “Firs-tar’s” “control” of that enterprise. However, the second amended complaint instead identifies the RICO enterprise as “an association in fact” from approximately February of 1992 until June 2, 1994, of “Firstar Corporation, Firstar Milwaukee, Firstar Wausau, and Firstar Sioux City with John Morken and SGLE,” which had as its alleged common purpose the penetration and expansion of the Firstar banks’ presence in the agricultural lending markets of Minnesota and Iowa. Second Amended Complaint, ¶67. After June 2, 1994, when the strategy of market penetration was allegedly abandoned, the enterprise is alleged to have “continued but without the association of Morken and SGLE,” with the common purpose of shifting the losses caused by that aborted strategy and by allegedly fraudulent schemes devised in pursuit of that strategy to the innocent victims of that strategy. Second Amended Complaint, ¶¶ 67-68. The second amended complaint alleges that this enterprise was distinct from that inherent in a pattern of racketeering, because the association of Morken and Firstar Milwaukee allowed the Adventure Cattle scheme to operate through Firstar Milwaukee’s operation of the controlled disbursement scheme, Second Amended Complaint, ¶ 69a; SGLE originated the purchase of all Morken controlled cattle and generated handling fees from the cattle allowing the enterprise to maintain the float, Id. at ¶ 69b; Firs-tar Corporation subsidiary banks were encouraged to market “products” like the controlled disbursement scheme and Bankers’ Acceptance financing scheme necessary to Morken’s operations, Id. at ¶ 69c, d, & e; and Firstar Sioux City and Firstar Milwaukee worked to involve investors in the Adventure Cattle program while providing loans to Morken to operate the program. Id. at ¶ 69f. The second amended complaint also alleges a new claim of conspiracy to control this RICO enterprise by defendants Miley, Firstar Milwaukee, and Firstar Wausau, with new defendants Buseemi and Vinent. Id. at ¶¶ 70-71. The second amended complaint alleges that the pattern of racketeering and the RICO predicate acts of this RICO enterprise, Id. at ¶ 72, included the controlled disbursement scheme, Id. at ¶¶ 74-83; promotion of the Adventure Cattle program, Id. at ¶¶ 84-95; shut-down of the controlled disbursement scheme, Id. at ¶¶ 96-103; and bankruptcy fraud, Id. at ¶¶ 104-106. The court believes that, once again, a side-by-side comparison of the comparable allegations of the first and second amended complaints will assist in understanding the differences between the two complaints. TABLE II: Comparison Of RICO Allegations In The First And Second Amended Complaints With this background in mind, the court turns to the legal analysis of the motions now pending before the court. II. LEGAL ANALYSIS A. The Motion For Reconsideration Although the defendants’ criticism of the vagueness of plaintiffs’ motion to reconsider is well-taken, it is nonetheless apparent that the motion seeks two things. First, it seeks amendment of the court’s March 1, 1995, ruling to allow plaintiffs the opportunity to file an amended complaint, because plaintiffs believe that the deficiencies the court found in the first amended complaint could be cured, and the court should have granted leave to amend as a matter of course. Second, it seeks alteration or amendment of the ruling, because plaintiffs assert that the court improperly rejected unidentified precedent of the Eighth Circuit Court of Appeals in determining that the Adventure Cattle contracts are not securities within the meaning of the Securities Acts of 1933 and 1934. The court’s analysis begins with the standards applicable to, and, indeed, with the identification of the authority for, the plaintiffs’ motion to reconsider. 1. Applicable standards Plaintiffs’ motion fails to identify the authority for a motion to reconsider. The Eighth Circuit Court of Appeals commented on the “dangers of filing a self-styled ‘motion for reconsideration’ that is not described by any particular rule of federal civil procedure,” and identified the usual bases upon which such motions are construed to have been made, in Sanders v. Clemco Indus., 862 F.2d 161 (8th Cir.1988): Federal courts have construed this type of motion as arising under either Rule 59(e) (motion to alter or amend the judgment) or Rule 60(b) (relief from judgment for mistake or other reason). See Spinar v. South Dakota Bd. of Regents, 796 F.2d 1060, 1062 (8th Cir.1986). The two rules serve different purposes and produce different consequences, both substantive and procedural. See A.D. Weiss Lithograph Co. v. Illinois Adhesive Prods. Co., 705 F.2d 249, 249-50 (7th Cir.1983) (per curiam). When the moving party fails to specify the rule under which it makes a postjudgment motion, that party leaves the characterization of the motion to the court’s somewhat unenlightened guess, subject to the hazards of the unsuccessful moving party losing the opportunity to present the merits underlying the motion to an appellate court because of delay. Sanders, 862 F.2d at 168 (footnotes omitted). Plaintiffs’ failure to identify the authority for their motion to reconsider has left them with precisely the dangers identified by the court in Sanders. The court’s “somewhat unenlightened guess” here is that the motion, filed within ten days after the judgment, was intended to be made pursuant to FedR.Civ.P. 59(e); Sanders, 862 F.2d at 168-69 (distinguishing between of a motion filed within ten days of the judgment, deemed to be made pursuant to Rule 59(e), and one made later, deemed to be made pursuant to Rule 60(b)). Plaintiffs have done nothing to discount defendants’ construction of the motion as having been made pursuant to that rule, and, indeed, referred to the motion in oral argument as having been made pursuant to FedR.Civ.P. 59(e). Although the court will first consider the standards for a motion made pursuant to Rule 59(e) first, as the most likely authority upon which plaintiffs’ motion to reconsider is based, the court will also consider the standards applicable to a motion made pursuant to Rule 60(b). a. Rule 59(e) motion to alter or amend Federal Rule of Civil Procedure 59(e) provides as follows: (e) Motion to Alter or Amend a Judgment. A motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment. FedR.Civ.P. 59(e). Thus, Fed.R.Civ.P. 59(e) empowers a district court to alter or amend original judgments. FedR.Civ.P. 59(e). “Although the words ‘alter or amend’ imply something less than ‘set aside,’ a court may use Rule 59(e) to set aside the entire judgment.” Sanders v. Clemco Indus., 862 F.2d 161, 168 n. 13 (8th Cir.1988) (citing A.D. Weiss Lithograph Co. v. Illinois Adhesive Prods. Co., 705 F.2d 249, 250 (7th Cir.1983); C. Wright & A. Miller, Federal Practice and Procedure § 2817, at 111 n. 31 (1973)). Although the rule identifies the time within which such a motion must be filed, it does not otherwise establish the criteria by which the court is to assess the merits of the motion. However, the Eighth Circuit Court of Appeals quoted with approval the Seventh Circuit Court of Appeals’ statement that the “ ‘limited function’ ” of a motion for reconsideration is “ ‘to correct manifest errors of law or fact or to present newly discovered evidence.’ ” Hagerman v. Yukon Energy Corp., 839 F.2d 407, 414 (8th Cir.) (quoting Rothwell Cotton Co. v. Rosenthal & Co., 827 F.2d 246, 251 (7th Cir.), as amended, 835 F.2d 710 (7th Cir.1987), quoting in turn Keene Corp. v. International Fidelity Ins. Co., 561 F.Supp. 656, 665-66 (N.D.Ill.1983), aff'd, 736 F.2d 388 (7th Cir.1984)), cert. denied, 488 U.S. 820, 109 S.Ct. 63, 102 L.Ed.2d 40 (1988); see also Committee for the First Amendment v. Campbell, 962 F.2d 1517, 1523 (10th Cir.1992) (purpose of a motion to alter or amend a judgment under Rule 59(e) “is to correct manifest errors of law or to present newly discovered evidence.”). Therefore, a party moving to alter or amend a judgment pursuant to Rule 59(e) “‘must clearly establish either a manifest error of law or fact or must present newly discovered evidence.’” LB Credit Corp. v. Resolution Trust Corp., 49 F.3d 1263, 1267 (quoting Federal Deposit Ins. Corp. v. Meyer, 781 F.2d 1260, 1268). The Eighth Circuit Court of Appeals has held that “ ‘[a] motion to alter or amend judgment cannot be used to raise arguments which could have been raised prior to the issuance of judgment.’ ” Concordia College Corp. v. W.R. Grace & Co., 999 F.2d 326, 330 (8th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 926, 127 L.Ed.2d 218 (1994) (quoting Hagerman, 839 F.2d at 414); Hagerman, 839 F.2d at 413-14 (citing FDIC v. Meyer, 781 F.2d 1260, 1268 (7th Cir.1986)); Ray E. Friedman & Co. v. Jenkins, 824 F.2d 657, 660 (8th Cir.1987); see also LB Credit Corp., 49 F.3d at 1267 (“A motion to alter or amend a judgment is not appropriately used to advance arguments or theories that could and should have been made before the district court rendered a judgment or to present evidence that was available earlier”; citations omitted); Anderson v. Flexel, Inc., 47 F.3d 243, 247-48 (7th Cir.1995); Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir.1991), cert. denied, 506 U.S. 828, 113 S.Ct. 89, 121 L.Ed.2d 51 (1992); Fontenot v. Mesa Petroleum, 791 F.2d 1207, 1219 (5th Cir.1986). Furthermore, the party making the motion cannot “use a Rule 59(e) motion ‘to introduce new evidence that could have been adduced during pendency of the [dis-positive] motion____ Nor should a motion for reconsideration serve as the occasion to tender new legal theories for the first time.’ ” Id. (quoting Hagerman, 839 F.2d at 414); Dale & Selby Superette & Deli v. United States Department of Agric., 838 F.Supp. 1346, 1348 (D.Minn.1993) (“[A] motion made pursuant to Rules 52 and 59 is not intended to routinely give litigants a second bite at the apple, but to afford an opportunity for relief in extraordinary circumstances.”). The trial court’s grant or denial of a motion pursuant to Fed.R.Civ.P. 59(e) is reviewed on the grounds of abuse of discretion. Concordia College Corp., 999 F.2d at 330; Twin City Constr. Co. of Fargo v. Turtle Mountain Band of Chippewa Indians Through LaFromboise, 911 F.2d 137, 139 (8th Cir.1990); Hagerman, 839 F.2d at 413; Roudybush v. Zabel, 813 F.2d 173, 178 (8th Cir.1987); Harris v. Arkansas Dep’t of Human Servs., Div. of Mental Retardation-Developmental Disabilities Servs., 771 F.2d 414, 416-17 (8th Cir.1985). Therefore, a court’s decision upon reconsideration pursuant to Rule 59(e) will not be reversed unless there is a clear showing of abuse of discretion. See Concordia College Corp., 999 F.2d at 330; Harris, 771 F.2d at 417. ft. Rule 60(b) motion for relief from judgment Plaintiffs’ failure to identify the authority for their motion to reconsider, even though it was filed within ten days of the ruling it seeks to have reconsidered and may therefore be presumed to be made pursuant to Rule 59(e), could also reasonably be construed as a motion for relief from judgment made pursuant to Fed.R.Civ.P. 60(b). The court will therefore examine the standards applicable to a Rule 60(b) “motion to reconsider” as well. Fed.R.Civ.P. 60(b) provides, in pertinent part, that [o]n 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) mistake, inadvertence, surprise, or excusable neglect; (2) newly 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 (whether heretofore denominated intrinsic or extrinsic), 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. Thus, a motion pursuant to Rule 60(b) does not suffer from the same time restrictions as are found in Rule 59(e), Robinson v. Armontrout, 8 F.3d 6, 7 (8th Cir.1993) (“The rule requires that the motion be made within a reasonable time and, if based on grounds (1), (2), or (3), no more than one year after judgment.”). However, because plaintiffs’ motion was timely under Rule 59(e), it must necessarily be timely under Rule 60(b). The Eighth Circuit Court of Appeals has consistently held that a motion pursuant to Rule 60(b) requires that the moving party establish “exceptional circumstances” to obtain the “extraordinary relief’ the rule provides. United States v. One Parcel of Property Located at Tracts 10 and 11 of Lakeview Heights, Canyon Lake, Comal County, Texas, 51 F.3d 117, 119 (8th Cir.1995) (hereinafter, “One Parcel ”) (“A district court should grant a Rule 60(b) motion ‘only upon an adequate showing of exceptional circumstances,’ ” quoting United States v. Young, 806 F.2d 805, 806 (8th Cir.1986), cert. denied, 484 U.S. 836, 108 S.Ct. 117, 98 L.Ed.2d 76 (1987)); Mitchell v. Shalala, 48 F.3d 1039, (8th Cir.1995) (“Generally, Rule 60(b) provides for extraordinary relief, which may be granted only upon a showing of exceptional circumstances.”); Atkinson v. Prudential Property Co., Inc., 43 F.3d 367 (8th Cir.1994) (also quoting Young); Schultz v. Commerce First Financial, 24 F.3d 1023, 1024 (8th Cir.1994) (also quoting Young); Robinson, 8 F.3d at 6 (8th Cir.1993) (also quoting Young); Reyher v. Champion Int’l Corp., 975 F.2d 483, 488 (8th Cir.1992) (Rule 60(b) provides for extraordinary relief which may be granted only on adequate showing of exceptional circumstances). This standard of requiring “exceptional circumstances” in order to provide relief applies even to motions brought on the “catch-all” ground found in Rule 60(b)(6), which provides for relief “for any other reason” found by the court to provide sufficient justification. Atkinson, 43 F.3d at 373; Schultz, 24 F.3d at 1024; In re Zimmerman, 869 F.2d 1126, 1128 (8th Cir.1989). The provisions of Rule 60(b) “do ‘not give courts unlimited authority to fashion relief as they deem appropriate.’ ” Schultz, 24 F.3d at 1024 (quoting In re Zimmerman, 869 F.2d 1126, 1128 (8th Cir.1989)). Because plaintiffs have cited no authority for their motion for reconsideration, the court must first attempt to discern the basis for that motion from the arguments plaintiffs make in their motion. Robinson, 8 F.3d at 7 (movant did not detail which of Rule 60(b)’s ground he was relying upon, so the court looked to nature of his allegations to determine the basis for his motion); Sanders, 862 F.2d at 168 (court must make “unenlightened” determination of basis for motion from allegations and circumstances). Plaintiffs assert that copious discovery has occurred since the filing of the first amended complaint, and that the products of this discovery have allowed them to replead their complaint with greater particularity. However, the products of this discovery cannot be considered “newly discovered evidence” to bring plaintiffs’ motion within Fed.R.Civ.P. 60(b)(2), because plaintiffs’ own supporting affidavits demonstrate that the evidence was available prior to dismissal of the first amended complaint and could have provided the basis for amendments prior to dismissal. Four of the remaining five grounds for a Rule 60(b) motion, reasons (1), (3), (4), and (5), are all plainly inapplicable. Thus, the court concludes that if plaintiffs are entitled to any relief under Rule 60(b), it must be pursuant to the “catch-all” ground found in subsection 6, which provides for relief for “any other reason justifying relief from the operation of the judgment.” Fed.R.Civ.P. 60(b)(6). Rule 60(b)(6) was intended to provide relief “only where ‘exceptional circumstances prevented the moving party from seeking redress through the usual channels.’” Atkinson, 43 F.3d at 373 (quoting In re Zimmerman, 869 F.2d at 1128). As the Eighth Circuit Court of Appeals observed, “[ejxeeptional circumstances” are not present every time a party is subjected to potentially unfavorable consequences as a result of an adverse judgment properly arrived at. Rather, exceptional circumstances are relevant only where they bar adequate redress. As noted above, Atkinson had a full and fair opportunity to litigate his claim. The district court properly found that he [was not entitled to relief]. Accordingly, Atkinson is not entitled to relief under Fed.R.Civ.P. 60(b)(6). Atkinson, 43 F.3d at 373-74. Thus, the “any other reason” ground has been significantly restricted by applicable case law. Whether to grant a hearing or make specific findings in ruling upon a Rule 60(b) motion is left to the district court’s discretion. Atkinson, 43 F.3d at 374; Schultz, 24 F.3d at 1025 (no argument or hearing necessary if court was in possession of all facts relevant to the issue upon which reconsideration is sought); Baxter Int’l, 11 F.3d at 93 n. 4. Nonetheless, the court found that the complexity of the arguments, law, and factual allegations pertinent to this matter necessitated such a hearing. Just as whether or not a hearing should be had is left to the court’s discretion, the ultimate grant or denial of a Rule 60(b) motion also rests in the discretion of the district court. Sheng v. Starkey Labs., Inc., 53 F.3d 192, 194 (8th Cir.1995); One Parcel, 51 F.3d at 119; Mitchell, 48 F.3d at 1041; Tungseth v. Mutual of Omaha Ins. Co., 43 F.3d 406, 409 (8th Cir.1994); Atkinson, 43 F.3d at 371 (describing the district court’s discretion as “wide,” citing Baxter Int’l, Inc., 11 F.3d at 92, and therefore requiring “clear abuse of discretion” for reversal); Schultz, 24 F.3d at 1024; Baxter Int’l, Inc., 11 F.3d at 92; Sanders, 862 F.2d at 169. With these standards for reconsideration in mind, the court turns to consideration of plaintiffs’ motion. 2. Reconsideration here As the court observed above, the motion for reconsideration, now deemed, in the first instance, at least, to have been made pursuant to Fed.R.Civ.P. 59(e), asks for two things. It seeks reconsideration of the court’s ruling that the contracts in question are not securities and the opportunity to replead the RICO claims. The court therefore begins its analysis of plaintiffs’ motion for reconsideration with consideration of the question of whether it committed a “manifest error of law,” Hagerman, 839 F.2d at 414; Committee for the First Amendment, 962 F.2d at 1523, as plaintiffs assert, by improperly departing from controlling precedent of the Eighth Circuit Court of Appeals in ruling on the securities law issue. The court will then consider whether some “exceptional circumstances” require the court to relieve plaintiffs, pursuant to Rule 60(b)(6), of the determination that the securities claims must be dismissed for failure to state a claim upon which relief can be granted. Atkinson, 43 F.3d at 373; Schultz, 24 F.3d at 1024; In re Zimmerman, 869 F.2d at 1128. After completing this dual analysis of the securities issue, the court will perform the same analysis two-part consideration, pursuant to both Rule 59(e) and Rule 60(b), of the question of whether it should have granted the plaintiffs leave to amend as a matter of course, rather than dismissing the first amended complaint outright. Woven into this analysis of the second issue presented in the “motion for reconsideration” must be due consideration for plaintiffs’ alternative motion for leave to file a second amended complaint, which presents significantly different allegations in support of both the securities law and RICO claims. a. Reconsideration in light of controlling precedent Although plaintiffs’ motion, rather surprisingly, does not identify the controlling precedent on the securities issue this court purportedly disregarded, plaintiffs eventually identified that precedent in their reply brief as Booth v. Peavey Co. Commodity Servs., 430 F.2d 132 (8th Cir.1970), which plaintiffs characterize as holding that only vertical commonality, not horizontal commonality, is a requirement of a “security.” Plaintiffs also rely on Christensen Hatch Farms, Inc. v. Peavey Co., 505 F.Supp. 903, 907 (D.Minn.1981), as recognizing that Booth required only vertical commonality and that the district court was powerless to depart from that authority until and unless Booth was overruled. The court, however, finds no “manifest error of law” or “exceptional circumstances” requiring modification of its March 1, 1995, ruling, because it concludes that plaintiffs have mischaracterized both Booth and this court’s decision on the “commonality” issue. i. The disregarded precedent. The relevant portion of Booth, in its entirety, states as follows: While the point was not argued by the parties, we feel it necessary to consider first whether an investor has a right to institute an action against a dealer for churning a commodity account. Such an action is not specifically provided for by the Commodity Exchange Act, 7 U.S.C. §§ 1-17. We believe, however, that a private remedy for churning a commodity account is permitted by either § 6(d) of the Commodity Exchange Act, Goodman v. H. Hentz & Co., 265 F.Supp. 440 (N.D.Ill.1967), or the applicable portions of the Securities Act of 1933,15 U.S.C. §§ 77a, et seq., and the Securities Exchange Act of 1934, 15 U.S.C. §§ 78a, et seq., Maheu v. Reynolds & Co., 282 F.Supp. 423, 429, n. 2 (S.D.N.Y.1968); W.J. Abbott & Co. v. S.E.C., 276 F.Supp. 502 (W.D.Pa.1967). See also, Anderson v. Francis I. duPont & Co., 291 F.Supp. 705 (D.Minn.1968); Berman v. Orimex Trading, Inc., 291 F.Supp. 701 (S.D.N.Y.1968). Booth, 430 F.2d at 133. In Christensen Hatch Farms, the United States District Court for the District of Minnesota read Booth to mean that, “[b]y implication, the court found that the commodity futures account constituted a security for purposes of the 1934 Act,” and that somehow that finding resolved the question of whether vertical or horizontal commonality was required under the Howey test of what is a security, the suggestion being that the commodity futures account lacked horizontal commonality. Christensen Hatch Farms, 505 F.Supp. at 906-907. There are several responses to this argument. ii. Import of the precedent. First, Booth on its face says nothing explicitly about whether horizontal or vertical commonality is required for an investment vehicle to be a security. What it addresses is whether a cause of action exists against a dealer for churning a commodity account. Booth, 430 F.2d at 133. The Eighth Circuit Court of Appeals found that such a cause of action was authorized in either of two places. Id. First, the court cited “§ 6(d) of the Commodity Exchange Act,” relying on the authority of Goodman. Id. However, the district court’s decision in Goodman did not rely on “§ 6(d)” of the Commodity Exchange Act. Rather, that decision relies on “Section 6b of the Commodities Exchange Act,” which the decision characterizes as making it “ ‘unlawful’ for an employee of a member of a contract commodity market to cheat or defraud or attempt to cheat or defraud an investor dealing in commodity contracts or commodity futures contracts, in interstate commerce.” Goodman, 265 F.Supp. at 447. Thus, under Goodman, the authority for the cause of action depends upon the investor being cheated while dealing in commodity contracts, which has nothing to do with whether or not the commodity contracts or the commodity account at issue in Booth was a “security,” let alone a security despite lack of horizontal commonality. Next, the court has reviewed the history of § 6 of the Commodity Exchange Act and finds that it did not in 1970 include a subsection (d) as identified in Booth, 430 F.2d at 133. Rather, 7 U.S.C. § 6 included only three subsections prior to amendment in January 1983 by Pub.L. 97-444, Title II, § 204, 96 Stat. 2299, and further amendment in October of 1992 by Pub.L. 102-546, Title Y, § 502(a), 106 Stat. 3629. Assuming that the Booth court might have been referring to § 6 of the Act itself, rather than to the codified section, the court has examined 7 U.S.C. § 9a, which was the codification of § 6(d) of the Commodity Exchange Act as of 1970. That section provides for the determination of the amount of money penalties assessed under codified § 9, and therefore does not appear pertinent. However, codified § 6d, as it stood in 1970, does appear to be relevant to the Booth decision, because it provides, inter alia, that a person “engage[d] as [a] futures commission merchant” must treat the “money, securities, and property” of investors “as belonging to such customers.” 7 U.S.C. § 6d(2) (1968). This section has some applicability to the question in Booth as well, but does not require a conclusion that horizontal commonality is not required for a security. Under this provision, the obligation to treat “money, securities, and property” of investors “as belonging to such customers,” arises because of the handling of another person’s property, not because the other person’s account is necessarily a “security,” let alone necessarily a “security” without horizontal commonality. The obligation would be the same whether the account was an individual account or a “pooled” account of several investors. Turning to the second basis for the cause of action identified in Booth, which is the Securities Acts of 1933 and 1934, albeit without any identification of which particular provisions might be applicable, the court has again turned to the decisions cited by the Eighth Circuit Court of Appeals for elucidation. First, the Eighth Circuit Court of Appeals cites Maheu v. Reynolds & Co., 282 F.Supp. 423, 429, n. 2 (S.D.N.Y.1968). In Maheu, the court considered whether a joint commodities futures account managed and supervised in all respects by the defendant on behalf of the several investors constituted a “security” within the meaning of the Securities Acts. Id. at 429. The district court held that “no pooling arrangement or common enterprise among investors” was required if there was “reliance on the efforts of another.” Id. The point of significance for the Eighth Circuit Court of Appeals in Booth, it appears to this court, was not this holding of Maheu, a point with which countless other decisions applying the Howey test would disagree, but the point that a cause of action was available under the Securities Acts in Maheu against a dealer who improperly handled the commodities accounts of clients. Booth, 430 F.2d at 133, and compare Maheu, 282 F.Supp. at 429 (suit against dealer involved issues under the Securities Acts of 1933 and 1934, and therefore the court could not order arbitration). Nor do the other cases cited in Booth create the necessary implication that horizontal commonality has not been required by this circuit since 1970, as plaintiffs assert. See W.J. Abbott & Co. v. S.E.C., 276 F.Supp. 502 (W.D.Pa.1967) (holding that the S.E.C. may subpoena records in a securities investigation even if the persons involved are also subject to regulation by the Department of Agriculture under the Commodity Exchange Act); Anderson v. Francis I. duPont & Co., 291 F.Supp. 705 (D.Minn.1968) (pooling of investments in commodities could be security and dealer operating the pool could be found to have violated securities laws); Berman v. Orimex Trading, Inc., 291 F.Supp. 701 (S.D.N.Y.1968) (agreeing with Maheu that dealer’s agreement to handle investment in commodities could be security even if underlying commodities were not securities). Thus, this court does not believe that it committed any “manifest error of law” in disregarding plaintiffs strained reading of Booth. Hagerman, 839 F.2d at 414; Committee for the First Amendment, 962 F.2d at 1523. In the absence of such an error of law, the court also concludes that there are no “exceptional circumstances” requiring the court to modify its decision pursuant to Rule 60(b), not least because, if plaintiffs disagreed with the court’s determination, they could have sought redress by way of appeal. Atkinson, 43 F.3d at 373; Schultz, 24 F.3d at 1024; In re Zimmerman, 869 F.2d at 1128. iii. Irrelevance of the precedent to this court’s ultimate determination. Even if Booth could be construed to mean what plaintiffs say it means, that construction of Eighth Circuit law would not mean that this court committed a manifest error of law in ruling that the Adventure Cattle contracts were not securities. The court did not rely exclusively on its conclusion that the contracts lacked horizontal commonality in ruling that the contracts were not securities. DeWit, 879 F.Supp. at 978-80. The court first examined the meaning of both horizontal and vertical commonality, and attempted to identify any trend in recent decisions towards requiring one or the other form of commonality, because the court found that the Eighth Circuit Court of Appeals had long been silent on the question. Id. The court did, as plaintiffs say, conclude that “the weight and better reasoned of the more recent decisions, and the purpose of the securities acts to provide uniform disclosure, show that horizontal commonality is an essential element of the definition of an investment contract security,” and then concluded that the Adventure Cattle contracts lacked horizontal commonality. Id. at 979-80. Plaintiffs omit from their characterization of the court’s prior ruling, however, its further conclusion that “[e]ven if vertical commonality alone would suffice to make an investment contract a security, the court concludes that such commonality is also lacking in this case.” Id. at 980. Thus, even if this court were wrong in its conclusion that horizontal commonality should be required, and the court does not retreat from that position, the court also decided that the Adventure Cattle contracts were not securities for lack of vertical commonality, which plaintiffs have asserted is the only commonality requirement in this circuit. Id. at 980. Furthermore, the court found that the Adventure Cattle contracts failed the third prong of the Howey test, the requirement that the investor expect profit from the effort of others. Id. at 980-82. The court also found that even if the Adventure Cattle contracts were securities, the defendants could not be held hable under the securities laws, because they were not “sellers,” DeWit, 879 F.Supp. at 984-86, “control persons,” id. at 986-87, or liable for failure to make disclosures. Id. at 987-989. Plaintiffs have not challenged any of these conclusions in their motion for reconsideration, and each would require dismissal of the pertinent securities-law claim. Thus, the court’s decision contains no manifest error of law, Hagerman, 839 F.2d at 414; Committee for the First Amendment, 962 F.2d at 1523, and therefore no ground pursuant to Fed.R.Civ.P. 59(e) for altering or amending the court’s conclusion that the Adventure Cattle contracts are not securities as pleaded in the first amended complaint. Nor are there any “exceptional circumstances” requiring the court to grant relief from its judgment, pursuant to Rule 60(b)(6), because, once again, if plaintiffs disagreed with the court’s determination of whether or not the Adventure Cattle contracts were securities as pleaded in the first amended complaint, the plaintiffs could have sought redress through the usual channels by assigning as error on appeal this court’s determination that there were no “securities” upon which to found securities law claims. Atkinson, 43 F.3d at 373; Schultz, 24 F.3d at 1024; In re Zimmerman, 869 F.2d at 1128. Thus, the securities claims as pleaded in the first amended complaint were properly dismissed and no relief from that determination is appropriate pursuant to either Rule 59(e) or Rule 60(b). b. Reconsideration of failure to include leave to amend Plaintiffs next seek reconsideration of the court’s March 1, 1995, order, because the court did not, as a matter of course, grant plaintiffs leave to amend to cure the deficiencies the court had found in the first amended complaint, but simply dismissed the complaint. Plaintiffs have cited no authority for the proposition that the court should have granted such leave as a matter of course, although they do cite some authority for the obvious, black-letter rule that leave to amend, in general, should be freely given. Plaintiffs then contend that their ability to cure pleading defects has been improved by extensive discovery since the first amended complaint was filed. Plaintiffs acknowledge that the court opined that many of the pleading defects could not be cured by further discovery on the RICO issue, but take that to mean that “pleading defects” might be cured by repleading. Plaintiffs argue that a re-pleaded RICO enterprise would cure “virtually all” of the defects the court noted in the RICO claim. Defendants counter that amendment of the complaint would be futile. They point out that plaintiffs had already amended their complaint once and had ample opportunity to do so again after defendants’ motion to dismiss identified the deficiencies in the pleading of the various claims, but plaintiffs did not do so. Defendants contend that they would be prejudiced by belated amendment, because they have already expended significant resources in demonstrating the inadequacy of the first amended complaint and this court has already determined that re-pleading would be a futile exercise by noting that additional discovery could not salvage the RICO claim. They argue that the court should not grant repeated opportunities to amend pleadings where plaintiffs have eschewed opportunities to replead challenged claims for an extended period of time after the opposing party challenged the pleadings but before the court ruled on the motion to dismiss. Finally, defendants argue that, because plaintiffs should previously have addressed these pleading deficiencies, allowing them to do so on reconsideration would give them a forbidden second bite at the apple when they have nothing hitherto unknown to them upon which to replead their allegations. Before turning to the standards governing whether or not the court should have granted leave to amend as a matter of course, or whether leave to amend should be granted at all, the court first notes that plaintiffs never sought an opportunity to replead or reamend the challenged complaint in any resistance to the motion to dismiss submitted to the court or in oral arguments. Rather, during the pendency of the motion to dismiss, plaintiffs stood on the adequacy of their pleadings or upon their ability to prove sufficient facts at trial to prevail on their claims. A desire to amend the complaint, it appears to the court, only surfaced when the court dismissed the complaint. The court will consider in due course whether that belated response to identification of deficiencies in the first amended complaint is fatal to plaintiffs’ request for leave now to reamend the complaint. i. Opportunity to replead after dismissal. Although plaintiffs have cited no authority whatsoever for a right to replead or common practice of allowing amendment after dismissal for failure to state a claim, this court has found a large number of decisions considering the propriety of granting leave to amend following such a dismissal. Outright dismissal, without leave to amend, is not necessarily improper. For example, in Edgington v. Missouri Dep’t of Corrections, 52 F.3d 777 (8th Cir.1995), the Eighth Circuit Court of Appeals held that, despite the liberality with which courts are to treat pro se pleadings, the district court had not abused its discretion by dismissing without prejudice a prisoner’s pro se complaint pursuant to 42 U.S.C. § 1983, because the plaintiff was free to refile the complaint. Edgington, 52 F.3d at 779-80 (dismissal for failure to comply with court order to replead with specificity). Thus, although the complaint here has been dismissed for failure to state a claim, that dismissal was without prejudice and does not bar plaintiffs from refiling the complaint. Furthermore, the Eighth Circuit Court of Appeals has held that following dismissal pursuant to Fed.R.Civ.P. 12(b)(6), denial of leave to amend may be “entirely proper.” Dorn v. State Bank of Stella, 767 F.2d 442, 443 (8th Cir.1985). In Dorn, the court held that the plaintiff did not file the motion for leave to amend until approximately three months after the district court entered its judgment of dismissal pursuant to Fed.R.Civ.P. 12(b)(6). Id. The court stated that [although a pretrial motion for leave to amend one’s complaint is to be liberally granted, different considerations apply to motions filed after dismissal. See, e.g., Wright v. Anthony, 733 F.2d 575, 577 (8th Cir.1984); Hinton v. CPC International, Inc., 520 F.2d 1312, 1314 (8th Cir.1975). After a complaint is dismissed, the right to amend under FedR.Civ.P. 15(a) terminates. Czeremcha v. International Association of Machinists and Aerospace Workers, 724 F.2d 1552, 1556 (11th Cir.1984). Although a party may still file a motion for leave to amend and amendments should be granted liberally, such a motion would be inappropriate “if the court has clearly indicated either that no amendment is possible or that dismissal of the complaint also constitutes dismissal of the action.” Czeremcha, 724 F.2d at 1556 n. 6. Here, the district court’s order of August 24, 1984 dismissed the complaint on its merits and did not grant Dorn leave to amend. It is possible, of course, to give relief from a final judgment of dismissal under Fed.R.Civ.P. 60(b) [and presumably under Rule 59(e) as well], but where, as here, the motion for leave fell short of meeting the requirements of that rule in any real sense, and where, as here, the amended complaint added little, if any, of substance to the original complaint, it was not error for the district court to deny leave to amend three months after final judgment. Assuming that in present circumstances the district court had authority to grant leave to amend, its refusal to do so would be reversed only for abuse of discretion. See Holloway v. Dobbs, 715 F.2d 390, 392 (8th Cir.1983) (per curiam), and cases there cited. We find no such abuse here. Dorn, 767 F.2d at 443-44. Thus, under Dorn, it is apparent that leave to amend after dismissal pursuant to Fed.R.Civ.P. 12(b)(6) need not be granted as a matter of course. It is further apparent that Fed. R.Civ.P. 15(a), the authority plaintiffs have cited as providing for leave to amend, provides no such authority in the present posture of the proceedings. Dorn, 767 F.2d at 443. However, the standard of liberally granting leave to amend found in Fed. R.Civ.P. 15(a) is still applicable to post-dismissal motions for leave to amend, but that liberality is tempered by examination of the circumstances under which the complaint was dismissed and under which the plaintiff seeks leave to amend. Fo