The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
Plaintiff California Public Employees' Retirement System
("CalPERS") has moved to amend the opinion of this Court dated
May 27, 2004 (the "Opinion"), pursuant to Fed.R.Civ.P. 60(a).
For the reasons set forth below, this motion is denied.
CalPERS has identified the following passage from the Opinion
as the basis for its motion:
Within 60 days after publication of the required
notice, any member or members of the proposed class
may apply to the Court to be appointed as lead
plaintiff(s). 15 U.S.C. § 78u-4(a)(3)(A) (i)
(II) & 78u-4(a)(3)(B). . . . While CalPERS filed a
complaint on December 16, its motion papers have not
appeared on the docket of any of the above-captioned
cases, although courtesy copies were received by this
Court on December 17, 2003. CalPERS' motion will not
be denied based on what appears to be a docketing
irregularity, nor will the possibility that the
motion papers were filed one day late be
Pirelli Armstrong Tire Corp. v. LaBranche & Co., No. 03 Civ.
8264 (RWS), 2004 WL 1179311, at *6 (S.D.N.Y. May 27, 2004)
(footnote omitted). CalPERS would have the Court amend the
Opinion to reflect CalPERS' timely filing of its lead plaintiff
motion papers on December 16, 2003.
In support of its motion to amend the Opinion, CalPERS has
submitted file-stamped copies of its motion papers dated December
16, 2003, and suggested that the failure of these papers to
appear on the relevant dockets was solely a docketing error.
Although this showing demonstrates that CalPERS filed its lead
plaintiff motion papers in a timely fashion on December 16, 2003,
it does not follow from that fact that the Opinion may be amended
here on the terms `CalPERS suggests.
Rule 60(a), Fed.R. Civ. P., provides, in relevant part, that
"[c]lerical mistakes 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 in
the motion of any party and after such notice, if any, as the
court orders." Fed.R.Civ.P. 60(a). Rule 60(a) does not permit
a court to amend every inaccuracy reflected in the text of an
opinion. Rather, as the Second Circuit Court of Appeals has
A motion under Rule 60(a) is available only to
correct a judgment "for the purpose of reflecting
accurately a decision that the court actually made." Truskoski v.
ESPN, Inc., 60 F.3d 74, 77 (2d Cir. 1995); accord
Paddington Partners v. Bouchard, 34 F.3d 1132, 1140
(2d Cir. 1994) ("To be correctable under Rule 60(a),
the [alleged error] in a judgment must fail to
reflect the actual intention of the court."); 11
Charles Alan Wright, Arthur R. Miller & Mary Kay
Kane, Federal Practice and Procedure § 2854 (2d ed.
1995) ("[A] motion under Rule 60(a) can only be used
to make the judgment or record speak the truth and
cannot be used to make it say something other than
what originally was pronounced.").
Hodge ex rel. Skiff v. Hodge, 269 F.3d 155
, 158 (2d Cir. 2001)
In deciding whether Rule 60(a) applies, "courts distinguish
`between changes that implement the result intended by the court
at the time the order was entered and changes that alter the
original meaning to correct a legal or factual error,' because
Rule 60(a) allows for the former, but not the latter." Rezzonico
v. H & R Block, Inc., 182 F.3d 144
, 150-51 (2d Cir. 1999)
(quoting Kokomo Tube Co. v. Dayton Equip. Servs. Co.,
123 F.3d 616, 623 (7th Cir. 1997)). In other words,
The relevant distinction is "between what is
erroneous because the thing spoken, written or
recorded is not what the person intended to speak,
write or record, and what is erroneous because the
person later discovers that the thing said, written
or recorded was wrong. The former comes within Rule
60(a); the latter does not." Allied Materials Corp.
v. Superior Products Co., 620 F.2d 224, 226 (10th
Cir. 1980) (emphasis deleted).
In re Marc Rich & Co. A.G., 739 F.2d 834
, 837 (2d Cir. 1984).
An error that "accurately reflects the decision of the court or
jury as rendered is not `clerical' within the terms of Rule 60(a)."
Paddington Partners v. Bouchard, 34 F.3d 1132
, 1140 (2d Cir.
Although CalPERS has shown that it filed its lead plaintiff
motion papers in a timely manner, it has not established the
existence of any error in the Opinion or otherwise demonstrated
that the Opinion does not accurately reflect the Court's intent
as of the time of the Opinion's issuance. Specifically, CalPERS
hasn't shown any error or clerical mistake in the Opinion's
statement that "[CalPERS'] motion papers have not appeared on the
docket of any of the above-captioned cases." Pirelli Armstrong
Tire, 2004 WL 1179311, at *6. Indeed, CalPERS itself
acknowledges the absence of those papers from the dockets,
confirming the suspicion expressed in the Opinion that a
docketing irregularity may have occurred.
Nor has CalPERS identified any clerical mistake or error in the
Opinion's statement that "the possibility that the motion papers
were filed one day late [will not] be determinative here." Id.
CalPERS' showing on the instant motion serves to confirm that the
possibility of a tardy filing is, now, demonstrably non-existent;
it does not render the Opinion's reference to that simple
possibility, based on the information available to the Court at
the time, a clerical mistake or an error arising from oversight
or mission such as would warrant amendment. As CalPERS has not shown any clerical mistake or error in the
Opinion itself, any oversight or omission in the docketing
process will not be addressed through an amendment of the
Opinion, and CalPERS' motion to amend the Opinion pursuant to
Fed.R.Civ.P. 60(a) is denied.
However, although the Opinion will not be amended for the
reasons set forth, the docket will be corrected to reflect the
filing of CalPERS' lead plaintiff motion on December 16, 2003.
It is so ordered.