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IN RE NYSE SPECIALISTS SECURITIES LITIGATION

United States District Court, S.D. New York


July 22, 2004.

In re NYSE SPECIALISTS SECURITIES LITIGATION. This Document Relates To: ALL ACTIONS.

The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge

MEMORANDUM OPINION

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 determinative here. 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 specified:

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) (per curiam).

  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. 1994).

  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.
20040722

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