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Thursday, November 8, 2012

$VRNG $GOOG Sick and tired of Dan Ravicher's Lies and Half Truths? See FRCP 60 Overview.

The truth will emerge, do not sell and be tricked by biased shorts who want to see patent inventors and other innovators destroyed.  This verdict will stand and justice shall fully prevail!

"VRNG investors, 

Are you sick and tired of Dan Ravicher telling you that Judge Jackson cannot and will not correct the jury's rather apparent computational error? Well, I certainly am. Just spent about 2 hours on West Law researching Rule 60(a) motion and learned that Ravicher is simply uninformed about Federal Rules of Civil Procedure. Feel free to critique and check my citations (not making this up!)

Disclaimer: This is not a buy rec..Do your own due diligence!! 

Text of FRCP 60(a)

Rule 60. Relief from judgment or order

(a) Corrections Based on Clerical Mistakes; Oversights and Omissions. The court may correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record. The court may do so on motion or on its own, with or without notice. But after an appeal has been docketed in the appellate court and while it is pending, such a mistake may be corrected only with the appellate court's leave.

Relief under FRCP 60(a) 

Under FRCP 60(a), “the court may correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record.” The rule provides for correction of clerical errors or oversights, and does not contemplate correction of substantive mistakes. American Trucking Assos. v Frisco Transp. Co. (1958) 358 US 133 (it is axiomatic that courts have both power and duty to correct judgments containing clerical errors or mistakes). “The basic distinction between ‘clerical mistakes' and mistakes that cannot be corrected pursuant to Rule 60(a) is that the former consist of ‘blunders in execution’ whereas the latter consist of instances where the court changes its mind, either because it made a legal or factual mistake in making its original determination, or because on second thought it has decided to exercise its discretion in a manner different from the way it was exercised in the original determination.” Blanton v. Anzalone, 813 F.2d 1574, 1577 n. 2 (9th Cir.1987) In determining whether a motion should be considered a motion under Rule 60(a) or some other Rule, the court must look to the substance of the motion rather than its form. BBCA, Inc. v United States (1992, CA8 Minn), 113 S Ct 192 (although motion seeking to clarify that dismissal was with prejudice was denominated as motion under Rule 59(e), it came under Rule 60(a) because it merely sought to correct clerical mistake).

The scope of Rule 60(a) is very limited. In Dura–Wood Treating Co., Division of Roy O. Martin Lumber Co. v. Century Forest Industries, Inc., 694 F.2d 112 (5th Cir.1982), the court set out these limits:

Rule 60(a) finds application where the record makes apparent that the court intended one thing but by merely clerical mistake or oversight did another. Such a mistake must not be one of judgment or even of misidentification, but merely of recitation, of the sort that a clerk or amanuensis might commit, mechanical in nature.... (Citations omitted).

Thus, it is proper to use Rule 60(a) to correct a damages award that is incorrect because it is based on an erroneous mathematical computation, whether the error is made by the jury or by the court. Errors of a more substantial nature are to be corrected by a motion under Rule 59(e) or 60(b). Correction of an error of “substantive judgment,” therefore, is outside the reach of Rule 60(a). Hendrick v. Avent, 891 F.2d 583, 588 (5th Cir. 1990)

Although motions under FRCP 60(a) have largely replaced the use of nunc pro tunc orders to correct clerical errors, the use of such orders has not been expressly superseded. LeBeau v Taco Bell (1989, CA7 Ill) 892 F2d 605, 15 FR Serv 3d 436 [District Courts have inherent authority to enter nunc pro tunc orders to show what was actually done but not properly recorded].
Legal Standard

Courts must defer to the jury’s damages award if there is “any rational basis for the verdict.” Berger v. Zeghibe, 2010 WL 3928621, at (E.D. Pa. Oct. 6, 2010) (quoting Bhaya v. Westinghouse Elec. Corp., 832 F.2d 258, 259 (3d Cir. 1987)). A “court may not vacate or reduce the award merely because it would have granted a lesser amount of damages.” Motter v. Everest & Jennings, Inc., 883 F.2d 1223, 1230 (3d Cir. 1989). The jury’s award is to be upheld “if there exists a reasonable basis to do so.” Id. (citing Nairn v. National Railroad Passenger Corp., 837 F.2d 565, 570 (2d Cir. 1988)). 
However, if a court believes a jury’s award is unreasonable in light of the facts, it may remit the award. Cortez v. Trans Union, LLC, 617 F.3d 688, 716 (3d Cir. 2010). “A jury's award of damages can only be reduced to the highest dollar amount that the jury could have properly awarded.” Young v. Lukens Steel Co., 881 F. Supp. 962, 976 (E.D. Pa. 1992) In particular, “jury verdicts can be disturbed when they are subject to mathematical calculations and there is a clear error in the calculation.” Id. see also Maylie v. Nat’l Railroad Passenger Corp., 791 F. Supp. 477, 482 (E.D. Pa. 1992) (offering plaintiff opportunity to remit damages where the damages award was not supported by the evidence but instead it seemed “likely that the jury simply erred in its calculation”).

Widely-Cited Third Circuit Case: Matter of W. Texas Mktg. Corp.

“The relevant test for the applicability of Rule 60(a) is whether the change affects substantive rights of the parties and is therefore beyond the scope of Rule 60(a) or is instead a clerical error, a copying or computational mistake, which is correctable under the Rule. As long as the intentions of the parties are clearly defined and all the court need do is employ the judicial eraser to obliterate a mechanical or mathematical mistake, the modification will be allowed. If, on the other hand, cerebration or research into the law or planetary excursions into facts is required, Rule 60(a) will not be available to salvage the government's blunders. Let it be clearly understood that Rule 60(a) is not a perpetual right to apply different legal rules or different factual analyses to a case. It is only mindless and mechanistic mistakes, minor shifting of facts, and no new additional legal perambulations which are reachable through Rule 60(a).”

HELD: “Correction of the exact amount paid looks to be a matter of altering the payment to reflect the amount actually owed by the government. However, the burden of making this determination falls to the lower court in looking at the specific nature of the mistake made in the settlement of this case.” Matter of W. Texas Mktg. Corp., 12 F.3d 497, 505 (5th Cir. 1994)

Time for Making Motion

Since FRCP 60(a) provides that the District Court may correct clerical mistakes or errors in judgments, orders, or other parts of the record "at any time," there are no time limits within which a party must move for correction of a clerical mistake or error. United States v Kellogg (In re West Tex. Mktg. Corp.) (1994, CA5 Tex) 12 F3d 497 [since there is no deadline for bringing Rule 60(a) motion, government could file motion to correct error in calculation of interest on tax refund more than two years after refund was paid].

The District Court may correct clerical mistakes before an appeal is docketed in the Court of Appeals, but after the appeal is docketed, leave of the Court of Appeals is required. Rule 60(a) permits the District Court to correct a clerical error after the judgment is affirmed on appeal. Dura-Wood Treating Co. v Century Forest Indus. (1982, CA5 Tex) 694 F2d 112 [District Court could correct judgment under Rule 60(a) even after Court of Appeals affirmed decision and remanded for further proceedings consistent with its opinion; Rule 60(a) permits correction at any time and correction was not inconsistent with court's mandate].

Method for Making Motion 

Unless made at a trial or hearing, other than a hearing on another motion, all motions must be reduced to writing or have their substance stated in a written notice of the hearing on the motion. The motion or notice of the hearing must state with particularity the grounds relied on, must set forth the relief or order sought, must be captioned, and must otherwise be in the form required of pleadings under the Federal Rules of Civil Procedure.
FRCP 60(a) does not require that notice be given when a motion is made to correct a clerical mistake or error in a judgment, order, or other part of the record. Instead, it is left to the court to determine whether notice should be given, and if so, what form of notice is appropriate. If notice is required, it should be given in the manner specified by the court. 
If the routine practice in the district is to hold hearings on motions, a date and time should be set with the clerk or the judge's secretary, depending on local practice, at the time the motion is filed or shortly thereafter. If local rules have dispensed with hearings except on special request, counsel must request a hearing by a second motion, which must also be served and filed.

When a ruling is made on a motion, an order will be prepared by the court and entered on the docket. Counsel for all parties will be notified. It is, however, counsel's responsibility to ensure that the order is properly entered on the docket.

Ruling on Motion; Appealability
In applying FRCP 60(a), the courts must balance two competing concerns. On the one hand, equitable considerations require liberal interpretation of the rule to avoid miscarriages of justice. This liberality is tempered, however, by the need to construe Rule 60(a) narrowly to promote the finality of judgments and avoid the circumvention of more restrictive means to obtain review of District Court orders and judgments, such as FRCP 59(e), which requires that motions to alter or amend judgments be filed within 10 days of judgment. The District Courts have wide discretion in ruling on motions to correct clerical errors under Rule 60(a), and decisions on Rule 60(a) motions are reviewed only for abuse of discretion.

Because FRCP 60(a) is intended merely to correct clerical errors and reinstate the intent of the court at the time of the judgment, no additional proof should be necessary to support the motion.


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