Rose Glynne v. WilMed Healthcare
2012 U.S. App. LEXIS 21741
4th Cir.2012Background
- Glynne, a board-certified OB/GYN, sued Wilson Medical Center and others in federal court in 2008, asserting federal and NC law claims
- During discovery, Glynne voluntarily dismissed federal claims and all defendants except WMC; only state-law claims remained
- Because federal claims were dismissed and diversity was lacking, district court declined supplemental jurisdiction over remaining state claims
- Limitations for the state claims expired while the federal suit was pending; 1367(d) tolled the period, with NC giving no longer grace period than 30 days
- On March 1, 2011, the district court dismissed the federal suit with leave to refile state-law claims in NC if desired; Glynne did not appeal
- Glynne filed state court claims on April 7, 2011; WMC moved to dismiss the state action as time-barred under the tolling rule
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether nunc pro tunc can extend the filing period | Glynne sought a 60-day extension to refile | Nunc pro tunc cannot create or extend substantive rights or orders | Nunc pro tunc extension improper; vacate |
| Whether tolling under 28 U.S.C. § 1367(d) governs the refiling deadline | 1367(d) tolling extended the deadline after dismissal | Tolling does apply, but does not validate an improper extension | Tolling acknowledged but insufficient to save timeliness; nonetheless vacate remains |
| Whether the Amended Order improperly modified the March Order | Amended Order provided 60 days to refile state claims | Amendment justified by relief motion under Rule 60(b) | Amended Order entered nunc pro tunc was error; vacate |
Key Cases Cited
- Maksymchuk v. Frank, 987 F.2d 1072 (4th Cir. 1993) (nunc pro tunc proper to correct record, not to create new effects)
- Ex parte Buskirk, 72 F.2d 14 (4th Cir. 1896) (nunc pro tunc cannot authorize new orders not previously made)
- Rockingham Cnty. Dep’t of Soc. Servs. v. Tate, 689 S.E.2d 913 (N.C. App. 2010) (records-keeping correction; cannot reflect unmade events)
- Romero-Rodriguez v. Gonzales, 488 F.3d 672 (5th Cir. 2007) (nunc pro tunc typically for clerical errors)
- Cent. Laborers’ Pension, Welfare & Annuity Funds v. Griffee, 198 F.3d 642 (7th Cir. 1999) (limits of nunc pro tunc for correcting record, not rewriting history)
- Recile v. Ward, 496 F.2d 675 (5th Cir. 1974) (failure to act cannot be remedied by nunc pro tunc)
- Crosby v. Mills, 413 F.2d 1273 (10th Cir. 1969) (order may be entered nunc pro tunc to reflect truth, not to create)
- Matthies v. R.R. Ret. Bd., 341 F.2d 243 (8th Cir. 1965) (nunc pro tunc to reflect past actions, not to predate actions that never occurred)
- Aikens v. Ingram, 652 F.3d 496 (4th Cir. 2011) (abuse-of-discretion review not applied when controlling law is at issue)