Lead Opinion
MEMORANDUM
I.
Plaintiff/Appellant Harry DePrins (“DePrins”) appeals the denial of his motion to correct a district court clerk’s entry of judgment and dismissal as to all defendants, following the magistrate judge’s grant of summary judgment as to two defendants, Christina and Aaron Clark (the “Clarks”).
We vacate the clerk’s entry of final judgment as to all parties, vacate the denial of the motion to correct, and remand.
II.
The underlying suit in this case is a wrongful death and negligence action arising from the fatal shooting of DePrins’ parents in a WalMart parking lot by Christina Clarks’ father, Donald Belanger (“Belanger”). The suit alleges wrongful death claims against the Estate (“the Estate”) of Belanger and the Estate’s representative, currently Michael J. Michaeles (“Michaeles”), and negligence claims against the Clarks.
On July 28, 2011 the magistrate judge to whom the case was assigned heard oral arguments on the Clarks’ summary judgment motion. The hearing focused on whether the adult child of a parent has a duty to protect third parties from the actions of that parent under Arizona law. There was no mention of other defendants or service of process. After arguments had concluded, a minute entry was made on the docket memorializing the hearing and the magistrate judge’s in-court grant of the Clarks’ motion for summary judgment. The entry referred only to the case against the Clarks, but concluded with the words “[cjase is dismissed.”
On July 29, 2011 the district court clerk entered judgment as follows:
CLERK’S JUDGEMENT — IT IS ORDERED AND ADJUDGED by way of this Court having granted Defendants’ Motion for Summary Judgment this action be dismissed. Plaintiff shall take nothing. Signed on 07/29/2011. (kmg) (Entered: 07/29/2011).
On August 29, 2011, DePrins filed a motion to correct a clerical error, pursuant to Fed.R.Civ.P. 60(a), asserting that the district court had overlooked the existence of the Estate and Michaeles as defendants. Shortly thereafter, DePrins filed a copy of the waiver of service by Michaeles that had been sent to DePrins in July 2011, after the first amended complaint (“FAC”) had been filed. In September, 2011, Mi-chaeles filed an answer to the complaint. On January 24, 2012 the magistrate judge
III.
Whether a motion should be considered a Rule 59(e) motion or a Rule 60(a) motion is reviewed de novo. McCalla v. Royal MacCabees Life Ins. Co.,
IV.
A. There is no indication in the record that the district court dismissed the action against the Estate and Michaeles for failure to serve, as the Clarks maintain. Dismissal of the Estate and Michaeles for failure to serve would have been an abuse of discretion because: (a) there was no challenge by the Estate that it was not properly served; (b) a signed waiver of service was provided to the court; see Fed.R.Civ.P. 4(m) (service must be made within 120 days of filing); (c) a party waives service of process when it files an answer to the complaint, as Michaeles did here, on behalf of the estate;
B. The district court’s denial of DeP-rins’ motion as untimely was erroneous because: (i) the motion was properly styled as a Rule 60(a) motion; (ii) even if the motion was an untimely Rule 59(e) motion, it should have been considered under Rule 60(b); and (iii) default judgments are not favored.
DePrins’ motion was properly styled as a Rule 60(a) motion to correct, because additional defendants remained at the time the clerk entered judgment. See Garamendi,
In contrast, Federal Rule of Civil Procedure 59(e) is used to alter or amend judgment and must be filed within 28 days of entry of the judgment.
Even though DePrins’ motion may have been untimely as a Rule 59(e) motion, the district court should have considered the motion under Rule 60(b), and reached its merits. Am. Ironworks & Erectors, Inc. v. N. Am. Const. Corp.,
Rule 60(b) provides that the court may relieve a party from final judgment for mistake, inadvertence, or any other reason that justifies relief. Fed.R.Civ.P. 60(b). We have explained that, “[a] Rule 60(b) motion may be granted where, inter alia, the party seeking relief demonstrates that the court made a ‘mistake,’ ... [and] a district court’s erroneous reading of the law is a ‘mistake’ sufficient to require reconsideration of an order.” Yniques v. Cabral,
C. In any event, the dismissal of the case was improper because Michaeles and the Estate remained as defendants. See Fed. R.Civ. P. 58(b), 54(b).
The dismissal was not authorized under Rule 58(b) because a clerk may enter judgment without the court’s direction only when: “(A) the jury returns a general verdict; (B) the court awards only costs or a sum certain; or (C) the court denies all relief.” Fed.R.Civ.P. 58(b)(1). Otherwise, the court must approve the form of judgment. Fed.R.Civ.P. 58(b)(2). Here, no judge approved the form of judgment.
Further, the district court’s grant of the Clarks’ summary judgment motion is not a Rule 54(b) final appealable judgment because the district court judge did not make “an ‘express determination that there is no just reason for delay and ... an express direction for the entry of judgment’ ” as to the Clarks. Special Investments,
y.
We vacate the July 29, 2011 dismissal of the action, vacate the denial of the motion to correct, and remand. Vacatur of an order creates a legal status the same as if the order never existed. See Camreta v. Greene, — U.S. -,
The district court’s dismissal order is VACATED and the case is REMANDED to the district court. Each party shall bear its own costs on appeal.
Notes
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. Because the parties are familiar with the facts and procedural history, we do not restate them here except as necessary to explain our decision.
. See Benny v. Pipes,
. The line item entry reveals that the magistrate judge applied a filing deadline of 10 days presumably based on an outdated prior version of the Federal Rules of Civil Procedure, when the correct deadline was twenty-eight days. Fed.R.Civ.P. 59(e).
Dissenting Opinion
dissenting:
I agree with the majority that DePrins filed a proper motion to correct a clerical error under Rule 60(a). I disagree, however, that we may resolve the motion on the merits, and I dissent from this portion of the majority’s decision.
In granting summary judgment in favor of Clark, the district court dismissed the action in its entirety, including claims
After concluding that the district court improperly denied DePrins’ motion under Rule 59(e), the majority goes on to resolve the motion on the merits, and concludes that the court erred when it dismissed the claims against those defendants who did not move for summary judgment. But a motion under Rule 60(a) only allows for “clarification and explanation, consistent with the intent of the original judgment.” Garamendi v. Henin,
Accordingly, regardless of whether the court erred in its original judgment, we must remand for the district court to determine whether the clarification that DePrins now seeks is consistent with the judgment’s intent. In my view, any other conclusion creates an end-run around the 30-day period in which a litigant may file an appeal, and allows parties to challenge the merits of a judgment, at any time, by simply seeking clarification under Rule 60(a). Cf. Bowles v. Russell,
For the foregoing reasons, I respectfully dissent.