Opinion
No. 79 CV 4923
March 22, 2001
MEMORANDUM OPINION AND ORDER
The United States ("government") urges this court to reopen a case to amend a court order pursuant to Federal Rule of Civil Procedure 60(a). For the reasons discussed below, the government's motion is granted.
I. Background
On November 26, 1979, the government filed an action in this court against John F. Ziola, Jr., John F. Ziola, Sr., Jean A. Ziola, and Alsip Bank as Trustee under Trust Number 1-0191 (collectively, "defendants"). That case was assigned to Judge Decker. In Count II of the complaint, the government sought to void an alleged fraudulent conveyance of real property from John F. Ziola, Jr., ("Ziola") to his parents, John F. Ziola Sr., and Jean A. Ziola.
On November 30, 1980, judgment was entered against Ziola on Count I. On February 3, 1981, a hearing was held before Judge Decker. Prior to the hearing, Ziola had submitted an offer to government attorney Terry Ray ("Ray"). At the hearing. Ray represented that he would be recommending acceptance of the settlement proposed by Ziola. The transcript of the proceeding reads as follows:
Mr. Ray: Your Honor, you entered judgment on Count I of the government's complaint in November and Count II seeks to foreclose on the defendant's beneficial interest in a certain land trust.
The defendant has submitted an offer to the government to pay a lump sum to dispose of Count II.
I've indicated to Mr. Driscoll [Ziola's counsel] that I intend to recommend acceptance of that offer and I'm confident that it is going to be accepted by the Department [of Justice] and so I would suggest that, so that we won't have to trouble the Court, we can dismiss Count II without prejudice and when the offer is finally accepted then we will simply present an order to dismiss it with prejudice.
The Court: Well, fine. We will dismiss it without prejudice today and then —
The Clerk: Dismiss it now?
Mr. Driscoll: That's fine, your Honor.
The Court: That's out. Fine. Then come in later and eliminate the "without prejudice."
Mr. Ray: Thank you very much.
Mr. Driscoll: Thank you.
The Clerk: We aren't going to leave the case open then until —
The Court: No. The case is gone.
Mr. Ray: Yes. We will not be coming back before the Court unless something breaks down.
The Court: All right.
A Court Order dated February 3, 1981, stated: "Status hearing held. On oral motion U.S.Ct. 2 dismissed with prejudice." On July 21, 1981, counsel for Ziola withdrew the settlement offer that had been made to the Department of Justice.
On October 16, 2000, the government filed a new action to set aside the same fraudulent conveyance from Ziola to his parents. The new civil case, docket number 00 C 6372, is assigned to Judge Harry Leinenweber. The government asserts that it brought case 00 C 6372 because the property now has sufficient equity which may be used to partially satisfy Ziola's liability. Subsequent to filing case number 00 C 6372, counsel for the United States learned that Count II of the 1979 case had been dismissed with prejudice. The government now seeks to reopen the 1979 case to make it clear that it does not stand as a bar to the new action. Specifically, the government asks this court to amend the February 3, 1981 minute order so as to reflect that the case was dismissed without prejudice.
II. Discussion
Rule 60 of the Federal Rule of Civil Procedure provides guidelines for obtaining relief from final judgments. Fed.R.Civ.P. 60. Under Rule 60 (a), clerical mistakes contained in final judgments may be corrected. Rule 60(b) contains five clauses delineating specific grounds for obtaining relief from a judgment in addition to a catchall clause set forth in Rule 60(b)(6). See Wesco Prod. Co. v. Alloy Automotive Co., 880 F.2d 981, 983 (7th Cir. 1989). Other than substantive differences with respect to the grounds for relief, Rules 60(a) and (b) articulate different time limitations. Motions brought pursuant to Rule 60(a) are not subject to time constraints. On the other hand, motions under Rule 60 (b) must be brought within one year after the entry of final judgment or within a reasonable time, in accordance with the applicable provision.
Over twenty years subsequent to the entry of the February 3, 1981 order dismissing this case, the government seeks to amend that order. If the government's motion is deemed to fall under Rule 60(a), then the motion is viable. See United States v. Griffin, 782 F.2d 1393, 1396-97 (7th Cir. 1986) (noting that mistakes can be corrected "at any time" under Rule 60(a)). Otherwise, the government's motion will most certainly be deemed untimely. Thus, the court must determine which provision governs.
Rule 59(e), which provides yet another potential avenue for relief, would also be unavailing in light of its requirement that the motion be filed within 10 days of judgment. Rule 59(e) reads in full: "Any motion to alter or amend judgment shall be filed no later than 10 days after entry of judgment."
Rule 60(a) provides in pertinent part:
Clerical mistake in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders.
In interpreting this provision, the courts have stated that
Whether Rule 60(a) is available depends upon whether the judgment said what the judge actually meant: if the flaw lies in the translation of the original meaning to the judgment, then Rule 60(a) allows a correction; if the judgment captures the original meaning but is infected by error, then the parties must seek another means of authority to correct the mistake.Klingman v. Levinson, 877 F.2d 1357, 1360-61 (7th Cir. 1989). See also Kokomo Tube Co. v. Dayton Equip. Serv. Co., 123 F.3d 616. 623 (7th Cir. 1997) (stating that Rule 60(a) allows for "changes that implement the result intended by the court at the time the order was entered [but not] changes that alter the original meaning to correct a legal or factual error").
Thus Rule 60(a) applies to correct "error[s] of transcription, copying, or calculation." Klingman, 877 F.2d at 1361. In other words, errrors that may be amended under Rule 60(a) must be "in the nature of a clerical" mistake. Willie v. Continental Oil Co., 746 F.2d 1041, 1045 (5th Cir. 1984). See, e.g., Kokomo, 123 F.3d at 623 (permitting substitution of named defendant liable for attorneys' fee under Rule 60(a)); Klingman, 877 F.2d at 1361 (changing judgment under Rule 60(a) where judge had intended to hold the entire state judgment debt with interest as non-dischargeable); Griffin, 782 F.2d at 1397 (amending consent decree where erroneous rate of post-judgment interest entered).
The critical inquiry, then, is whether the judgment reflects the actual intention of the court. Klingman, 877 F.2d at 1361. If the judgment does not reflect the court's intent, then Rule 60(a) is applicable to amend the judgment to conform to the court's actual intent. In ascertaining the judge's intent, the court looks to evidence of the judge's contemporaneous intent as demonstrated in the record. Klingman. 877 F.2d at 1361. See also Kokomo, 123 F.3d at 623 (examining "clear language" of Memorandum Opinion to discover judge's intent).
In the instant case, Judge Decker's intentions were manifest in his statements on the record: he intended to dismiss this case without prejudice. At the February 3, 1981 status hearing before the judge, the government proposed that the court dismiss Count II "without prejudice and when the offer is finally accepted we will simply dismiss it with prejudice." Defendants' counsel consented. Judge Decker then declared that "we will dismiss [Count II] without prejudice today," and further directed counsel to "come in later and eliminate 'without prejudice.'"
The minute order entered on later that same day, however, indicated that Count II was dismissed "with prejudice." The transcript confirms that the order was erroneously entered. A correction to the February 3, 1981 minute order, then, would not change the intent of the court. Rather, an amendment to the order would enable the "court to ensure its orders, judgments and other parts of its record of proceedings are an accurate reflection of the true actions and intent of the court and parties." 12 James W. Moore, Moore's Federal Practice § 60.02[1] (3d ed.). The inconsistency between the judge's words and the minute order came about from a translation error. Clearly, Rule 60(a) is applicable to the present case.
In arguing that Rule 60(a) does not provide a remedy, Ziola cites to several Seventh Circuit cases. Those cases, however, are inapposite. InWesco, the plaintiff sought to amend a dismissal order based on an objection to the "manner in which the order [of dismissal] was entered i.e. for lack of prosecution as opposed to with leave to reinstate." 880 F.2d at 984. The court recognized that the plaintiff's challenge was directed not at a clerical error but at the grounds for the decision.Id. The Wesco plaintiff could not and did not argue that the judge had not intended to dismiss the case; instead, the plaintiff refuted the basis for the dismissal. The present case stands in marked contrast. Here, the government does not advance a legal challenge to the judge's decision itself. Instead, the government questions whether the judge's intent was properly reflected in the minute order.
Ziola's reliance on Brandon v. Chicago Bd. of Educ., 143 F.3d 293 (7th Cir. 1998), is also misplaced. The Brandon court noted that the plaintiff was correct to abandon his Rule 60(a) argument because the challenged dismissal "accurately reflected the court's intention at the time it was entered." 143 F.3d at 295n.2. Again, the record in the instant case unequivocally shows that the judge's intent was not captured by the minute order. In the same way, in Bank of California v. Arthur Anderson Co., 709 F.2d 1174 (7th Cir. 1983), the trial court mistakenly dismissed with prejudice a pendant state claim. 709 F.2d at 1176. When the trial judge later modified his order, the appellate court determined that Rule 60(a) did not apply. Id. Whereas the Bank of California trial judge tried to correct a mistaken decision, the government here seeks merely to correct an inconsistency between Judge Decker's decision and the wording of the order itself — there is no challenge to Judge Decker's intended decision.
The non-Seventh Circuit cases furnished by Ziola in support of his position are similarly distinguishable and do not mandate a different result in this case. See, e.g., MIF Realty v. Rochester Assoc., 92 F.3d 752 (8th Cir. 1996) (plaintiff urged setting aside of dismissal based on termination of settlement talks, but asserted no clerical error).
The transcript unambiguously demonstrates that Judge Decker intended to dismiss this case without prejudice. The subsequent minute order, however, stated that the case was dismissed with prejudice. Rule 60(a) contemplates that such errors — wherein the judge's intent is not evidenced by the written order — be corrected under this provision. Therefore, the government's motion to amend the February 3, 1981 minute order is granted. Judge Decker's prior order will be amended to read that the action was dismissed without prejudice.
Whether the government's reinstated action, 00 C 6372, is time barred is a question that is better suited for presentation to Judge Leinenweber, to whom that case is assigned.
III. Conclusion
For the foregoing reasons, the government's Motion to Reopen Case to Amend Court Order Due to Clerical Order is granted.