Tattersalls, Ltd. v. Jeffrey DeHaven

Filing

FILED OPINION (MARY M. SCHROEDER, RICHARD R. CLIFTON and BRIAN M. COGAN) AFFIRMED. Judge: RRC Authoring, FILED AND ENTERED JUDGMENT. [9025213]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

TATTERSALLS, LTD., Incorporated in
England,
Plaintiff-Appellee,

No. 12-56037

v.

D.C. No.
2:11-cv-06311SJO-SH

JEFFREY DEHAVEN,
Defendant-Appellant.

OPINION

Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Argued and Submitted
February 7, 2014—Pasadena, California
Filed March 21, 2014
Before: Mary M. Schroeder and Richard R. Clifton, Circuit
Judges, and Brian M. Cogan, District Judge.*
Opinion by Judge Clifton

*

The Honorable Brian M. Cogan, United States District Judge for the
Eastern District of New York, sitting by designation.

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TATTERSALLS V. DEHAVEN
SUMMARY**

Fed. R. Civ. P. 60(a) Motion
The panel affirmed the district court’s grant of a Fed. R.
Civ. P. 60(a) motion to correct the judgment to award money
damages in favor of Tattersalls, Ltd.
The panel held that the district court’s use of Rule 60(a)
in correcting the judgment to award damages was proper
where the district court always intended to award monetary
damages. The court noted that its ruling preserved the
distinction between Rule 59(e), which governs the filing of a
motion to alter or amend a judgment that involves a
substantive change of mind by the court, and Rule 60(a),
which does not allow a court to change its mind but allows
the court to correct the judgment where there was a “blunder
in execution.”

COUNSEL
Raymond E. Lee, Michael J. Chilleen, Roger Scott (argued),
Greenberg Traurig, LLP, Irvine, California, for DefendantAppellant.
Diana Courteau (argued), Courteau & Associates, El
Segundo, California, for Plaintiff-Appellee.

**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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OPINION
CLIFTON, Circuit Judge:
Defendant-appellant Jeffrey DeHaven appeals the district
court’s grant of a Rule 60(a) motion in favor of plaintiffappellee Tattersalls, Ltd., an auctioneer. DeHaven bought
and took possession of a horse from Tattersalls but did not
pay for it. When Tattersalls sued, the district court granted
title and right of possession of the horse to Tattersalls. The
court did not award damages for the reduction in the horse’s
value while she was held by DeHaven but instructed
Tattersalls to move to amend the judgment under Rule 59(e),
Fed. R. Civ. P., when it knew the amount of the damages.
The district court overlooked the 28-day deadline for motions
under Rule 59(e), however. After the deadline expired, the
court held that it was permitted to correct the judgment under
Rule 60(a), Fed. R. Civ. P., which does not have a time limit,
to award monetary damages. We hold that, because the
district court always intended to grant Tattersalls damages,
this use of Rule 60(a) was proper, and we affirm.
I. Background
Tattersalls, Ltd., the plaintiff-appellee, is an English
auctioneer of thoroughbred horses. The defendant-appellant,
Jeffrey DeHaven, bought a horse, Singapore Lilly, from
Tattersalls in November 2010 for $357,210 (210,000
guineas). DeHaven shipped the horse to the United States
and entered her into races but did not pay for her.
Tattersalls filed a complaint to recover the horse, the
difference between her purchase price and the resale value,
and other damages. DeHaven did not respond to the

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complaint, and the court entered a default judgment against
DeHaven on September 30, 2011. The court noted that
Tattersalls had a meritorious claim to title of the horse but
that the amount of damages was uncertain. As the court
observed, “Singapore Lilly has aged almost a full year since
Defendant agreed to purchase her, so she is likely worth less
now than when Plaintiff originally sold her to Defendant.”
Therefore, the court held, “[t]he proper measure of contract
damages, in light of the fact that Plaintiff is also entitled to
regain title to the horse, is the amount of the depreciation in
the horse’s value between the previous sale at auction and the
present.”
The court declined to award Tattersalls both the full
purchase price and title to the horse, as Tattersalls had
requested, because that would permit Tattersalls a double
recovery. Even if Tattersalls promised to refund the horse’s
sale price to DeHaven, the company might not sell her
speedily, allowing her to depreciate further, and it might also
sell her at less than a fair market price. But the court noted
that at that time it had no “credible evidence” of the horse’s
current worth. The court attempted to solve these problems
by entering judgment granting title, ownership, and right of
possession to Tattersalls so the company could try to resell
the horse at the next available auction on November 6, 2011.
It seems that the court wanted Tattersalls to have the
opportunity to auction the horse before it assessed damages
because the alternative—an expert appraisal of the horse’s
value—could only be an approximation of the current market
value. Because Tattersalls could not sell the horse unless it

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was registered as the owner, the court needed to grant it title
to permit it to be auctioned.1
The court addressed the damages question by “find[ing]
that Singapore Lilly has not depreciated in value” and
entering a judgment that would “not include any money
damages for the depreciation of Singapore Lilly’s value,” but
instructing Tattersalls to move to amend the judgment later
under Rule 59(e), Fed. R. Civ. P., to supply evidence of the
horse’s lost value. The deadline that the court set for the Rule
59(e) motion was November 21, 52 days after the date of its
judgment and two weeks after the upcoming auction. The
court gave Tattersalls the option of submitting expert
testimony as to the horse’s value if she failed to sell at the
auction.
DeHaven noticed an appeal against the default judgment.
On November 18, 2011, Tattersalls filed a motion with the
district court to continue the November 21 deadline.
Tattersalls had not been able to sell the horse at the
November 6 auction, because the Jockey Club would not
amend Singapore Lilly’s registration papers unless there was
a nonappealable judgment, and DeHaven’s appeal was
pending. DeHaven opposed the motion because Rule 59(e)
provides that “[a] motion to alter or amend a judgment must
be filed no later than 28 days after the entry of the judgment.”

1

We do not quarrel with the district court’s reasoning that a sale was
preferable to an appraisal. We note, however, that a better route to this
result might have been for the court to certify a partial judgment awarding
ownership of the horse to Tattersalls as final under Rule 54(b), Fed. R.
Civ. P., allowing Tattersalls to submit evidence of monetary damages
later. Tattersalls did not request a partial judgment.

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Judgment had been entered on September 30, more than 28
days before.2
In an order entered November 22, 2011, the court
acknowledged that DeHaven was correct and that it was too
late for Tattersalls to move to amend under Rule 59(e). The
court ruled, however, that Tattersalls would be able to file a
motion to correct the judgment under Rule 60(a) instead. The
court, quoting Robi v. Five Platters, Inc., 918 F.2d 1439,
1445 (9th Cir. 1990), noted that “[a] district court judge may
properly invoke Rule 60(a) to make a judgment reflect the
actual intentions and necessary implications of the court’s
decision,” and emphasized that it had “intended all along to
permit Plaintiff to recover the depreciation in the horse’s
value.”
Tattersalls sought to remand the case from this court, and
also requested an indicative ruling from the district court
under Rule 62.1, Fed. R. Civ. P., as to how it would decide
the Rule 60(a) motion. The court issued an order on February
1, 2012, indicating that it would grant the Rule 60(a) motion
and repeated that it “clearly signaled its intent on September
30, 2011, that it wished to grant Plaintiff damages to
compensate it for the depreciation in Singapore Lilly’s value,
but wanted to do so on the basis of either evidence of her
resale price or expert evidence regarding depreciation.”
After this court remanded the case, the district court
entered an order granting Tattersalls’ Rule 60(a) motion on

2

Even if DeHaven had not noticed an appeal, and Tattersalls had been
able to amend Singapore Lilly’s registration papers before the auction, it
would still have been too late for Tattersalls to amend the judgment under
Rule 59(e).

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May 4, 2012. The court accepted Tattersalls’ uncontested
expert testimony that Singapore Lilly was worth $75,000 on
September 30, 2011, and therefore granted Tattersalls
$282,210 in damages for the depreciation in value, in addition
to title, ownership, and right of possession of the horse.
DeHaven appeals, arguing that the court abused its
discretion in correcting the judgment so as to award
depreciation damages.
II. Discussion
We review a district court’s decision to grant relief under
Rule 60(a) for abuse of discretion. Garamendi v. Henin,
683 F.3d 1069, 1077 (9th Cir. 2012). A legal error is an
abuse of discretion. Id.
A. Rule 60(a)
Under Rule 60(a), a 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.” In
determining whether a mistake may be corrected under Rule
60(a), “our circuit focuses on what the court originally
intended to do.” Blanton v. Anzalone, 813 F.2d 1574, 1577
(9th Cir. 1987). Thus, “[t]he 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.” Id. n.2.
The quintessential “clerical” errors are where the court
errs in transcribing the judgment or makes a computational
mistake. 12-60 Moore’s Federal Practice § 60.11[1][b]; see

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Garamendi, 683 F.3d at 1078, 1080. But Rule 60(a) covers
more than those situations. For example, in In re Jee,
799 F.2d 532 (9th Cir. 1986), we held that a bankruptcy court
did not clearly err in using Rule 60(a) to amend a prior
dismissal order where the record and the recollection of the
judge who entered the order indicated that the dismissal was
intended to be without prejudice. In Jones & Guerrero Co.
v. Sealift Pacific, 650 F.2d 1072 (9th Cir. 1981), we permitted
the district court to use Rule 60(a) to correct a blanket order
dismissing twenty-two diversity cases, where the court
intended to remand one of those cases—the only one not
originally filed in federal court—to territorial court. And in
Robi, 918 F.2d at 1444–46, we permitted a court to use Rule
60(a) to clarify that it intended to cancel three trademarks, not
just the one explicitly mentioned in the judgment.
We recapitulated our view regarding the permissible uses
of Rule 60(a) in Garamendi v. Henin. There, we held that it
was permissible for a court to use Rule 60(a) to clarify a
judgment that could not be domesticated in a foreign country
because its reasoning was not sufficiently detailed. 683 F.3d
at 1080–81. Surveying our and other courts’ decisions
relating to the allowable uses of Rule 60(a), we concluded
that the Rule “allows a court to clarify a judgment in order to
correct a failure to memorialize part of its decision, to reflect
the necessary implications of the original order, to ensure that
the court’s purpose is fully implemented, or to permit
enforcement.” Id. at 1079 (internal quotation marks omitted).
The “touchstone” of Rule 60(a) in all these cases is “fidelity
to the intent behind the original judgment.” Id. at 1078.

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B. The district court’s use of Rule 60(a) was proper
Relying on Garamendi, we hold that the district court’s
use of Rule 60(a) in correcting the judgment to award
damages was proper. The court’s overlooking of the 28-day
time limit for Rule 59(e) relief is the kind of clerical error,
oversight, or omission that is amenable to correction under
Rule 60(a). A clerical error does not need to be made by a
clerk. Jones, 650 F.2d at 1074. Rather, it is a “blunder[] in
execution” that the court may try to correct so long as it does
not change its mind. Blanton, 813 F.2d at 1577 n.2.
It is obvious that the court did not change its mind. The
court’s September 30 order shows that the court intended that
Tattersalls should receive depreciation damages for Singapore
Lilly. As the court said, “[t]he proper measure of contract
damages,” given that Tattersalls was recovering the horse, “is
the amount of the depreciation in the horse’s value.” The
court invited Tattersalls to submit evidence of the price
Singapore Lilly fetched at auction, or her appraisal value, if
she did not sell.
There is no question that the
“contemporaneous intent” of the court was to award
Tattersalls a full recovery.3 See Garamendi, 683 F.3d at
1079–80.
It is also obvious that the court did not intend that
Tattersalls would be unable to amend the judgment after the
28-day time limit under Rule 59(e) had elapsed. The court

3
The court later confirmed its intent three times—in its denial of
Tattersalls’ motion to extend the deadline, its tentative ruling on the Rule
60(a) motion, and its final ruling. A court’s later statements about its
intentions may also be considered as evidence of its original intent. Jee,
799 F.2d at 534–35.

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intended that Tattersalls should submit evidence of
depreciation damages but overlooked the 28-day deadline.
This is apparent from the court’s original September 30,
2011, decision, as the court contemplated that Tattersalls
would sell Singapore Lilly at an auction that was itself more
than 28 days after the date of entry of judgment.
Therefore, as Garamendi requires, the corrected judgment
is faithful to the court’s original intent. DeHaven does not
argue that the court did not intend to award Tattersalls a full
recovery, or that the court intentionally instructed Tattersalls
to file a motion under Rule 59(e) when it was legally
impossible to do so. Instead, DeHaven tries to persuade us by
arguing that Tattersalls could have complied with the 28-day
time limit on its own. Even though Tattersalls could not
resell the horse at auction within the 28-day limit, he says, it
might have submitted expert evidence to the court in that
time, before the first auction at which the horse could be sold.
This is clearly not what the court intended. The court would
not have intended to mislead Tattersalls by suggesting an
erroneous 52-day limit as a red herring. And, in any case, the
court instructed Tattersalls to “provide expert testimony
regarding [Singapore Lilly’s] current value if she has not sold
at auction” (emphasis added). The court clearly intended that
Tattersalls should try to establish the value of the horse by
auction. Thus, if Tattersalls had submitted evidence of
Singapore Lilly’s value before trying to sell her at auction, it
would still have been violating the court’s intent.
The use of Rule 60(a) here falls into one of the categories
set out in Garamendi because it “ensure[s] that the court’s
purpose is fully implemented.” 683 F.3d at 1079. If it were
not for the Rule 60(a) correction, Tattersalls would have lost
almost 80 percent of the value of the horse, contrary to the

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court’s intent. The court always intended to grant full relief
to Tattersalls and specifically provided that the judgment was
subject to change to reflect the full measure of damages.
Therefore, we hold that the correction did not change the
judgment’s “operative, substantive terms.” See Garamendi,
683 F.3d at 1080 (“[W]e must . . . ensure that [the corrected
judgment] did not change the operative, substantive terms of
the original judgment. We are convinced that the district
court’s corrected judgments did not deviate from the intent of
its original judgments, so the court acted within its Rule 60(a)
authority.” (emphasis added)); see also Robert Lewis Rosen
Assocs., Ltd. v. Webb, 473 F.3d 498, 504–06 (2d Cir. 2007)
(holding that a supplemental judgment confirming a monetary
award could be used to correct an initial order under Rule
60(a), where the monetary award was implicit in the initial
order), cited in Garamendi, 683 F.3d at 1078–79. The use of
Rule 60(a) in this context is not precluded by the fact that
Tattersalls has submitted new evidence relating to Singapore
Lilly’s loss of value. See Robert Lewis Rosen Assocs.,
473 F.3d at 504–06 (permitting the admission of new
evidence to correct a judgment). Accordingly, we hold that
the district court’s use of Rule 60(a) was proper.
III.

Conclusion

Our ruling today preserves the distinction between Rule
59(e) and Rule 60(a), which we discussed in Garamendi. In
Rule 59(e), which governs the filing of a motion to alter or
amend a judgment, the phrase “‘alter or amend’ means a
substantive change of mind by the court.” Garamendi,
683 F.3d at 1077 (quoting Miller v. Transam. Press, Inc.,
709 F.2d 524, 527 (9th Cir. 1983)). By contrast, a court may
not change its mind when using Rule 60(a). A court may not
enter a judgment and then amend it under Rule 60(a) because

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it has reached a different conclusion. But, when the court has
made a “blunder[] in execution,” it may use Rule 60(a) to
correct the judgment to implement its purpose. Blanton,
813 F.2d at 1577 n.2; see Garamendi, 683 F.3d at 1079.
AFFIRMED.

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