Paul Weldon v. Dyer et al

Filing 113

ORDER GRANTING 94 Motion for Nunc Pro Tunc Order, signed by District Judge Lawrence J. O'Neill on 03/18/2015. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PAUL WELDON,
Plaintiff,

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ORDER GRANTING DEFENDANTS’
MOTION FOR NUNC PRO TUNC ORDER.

v.

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Case No. 1:13-CV-00540-LJO-SAB

JOHN CONLEE, POLICE OFFICER,
FRESNO POLICE DEPARTMENT;
ECONO TOWING; MARTY KODMAN,
OWNER, ECONO TOWING; ROBERT
KODMAN, OWNER, ECONO TOWING;
AND BERYLE DODSON, EMPLOYEE,
ECONO TOWING,

(Doc. 94)

Defendants.

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Before the Court in the above-styled and numbered cause of action is Defendants’ “Motion

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for Nunc Pro Tunc,” filed February 4, 2014 (Doc. 94), by which they ask the Court to acknowledge

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its prior dismissal of Plaintiff’s 42 U.S.C. § 1986 (“Section 1986”) claims as well as all of

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Plaintiff’s claims against Chief Jerry Dyer, and to remove Chief Dyer as a Defendant. Defendants

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have subsequently filed a motion for summary judgment (Doc. 97). In order to clarify which of the

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claims remain in the operative complaint in light of the previous dismissals, the Court will address

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the instant motion in advance of its adjudication of Defendants’ summary judgment motion. The

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Court deems the matter appropriate for determination without oral argument. See Local Rule

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230(g).

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“Nunc pro tunc, Latin for ‘now for then,’ refers to a court’s inherent power to enter an order

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having retroactive effect.” Iouri v. Ashcroft, 487 F.3d 76, 87 (2nd Cir. 2007) (citing Black’s Law

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Dictionary 1100 (8th Ed. 2004)). A district court uses nunc pro tunc relief for the limited purpose

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of clarifying the record such that it reflects “what the district court actually intended to do at an
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earlier date, but which it did not sufficiently express or did not accomplish due to some error or

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inadvertence.” United States v. Sumner, 226 F.3d 1005, 1009-10 (9th Cir. 2000) (citing Martin v.

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Henley, 452 F.2d 295, 299 (9th Cir. 1971)); see also U.S. Philips Corp. v. KBC Bank N.V., 590 F.3d

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1091, 1094 (9th Cir. 2010) (quoting Sumner, 226 F.3d at1009-10 (“[T]he power [of a nunc pro tunc

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order] is a limited one, and may be used only where necessary to correct a clear mistake and

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prevent injustice. It does not imply the ability to alter the substance of that which actually

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transpired or to backdate events to serve some other purpose.”)). Nunc pro tunc relief “should be

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granted or refused as justice may require.” Mitchell v. Overman, 103 U.S. 62, 65 (1882).

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Having considered the record in this case, the parties’ briefing, and the relevant law, the

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Court will grant Defendants’ motion because doing so clarifies the record. Defendants are correct

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that the Court previously dismissed without leave to amend Plaintiff’s Section 1986 action and all

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claims against Chief Jerry Dyer in the Court’s July 9, 2013 Order (see Doc. 14); and, that the Court

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granted Plaintiff leave to amend the complaint for the sole purpose of substituting three Doe

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defendants with proper names. See Doc. 37. This Court rendered an Order on July 9, 2013 (Doc.

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14), in which it adopted in full the Findings and Recommendations of the Magistrate Judge (see

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Doc. 12), and explicitly ordered that:

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2. Plaintiff’s claims against Defendant Jerry Dyer and Plaintiff’s claims under 42 U.S.C. §
1986 are DISMISSED, without leave to amend; and

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3. This action shall proceed on Plaintiff’s claims against Defendants Conlee, Econo Towing
and John Doe #1-3 under the Fourth Amendment (excessive force, unreasonable search and
unreasonable seizure) and under the Fourteenth Amendment (failure to provide sufficient
notice regarding the seizure of Plaintiff’s vehicle).

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In Plaintiff’s Third Amended Complaint, lodged March 17, 2014 (Doc. 36), he properly

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substituted Marty Kodman and Robert Kodman, owners of Econo Towing, and Beryle Dodson, an

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employee at Econo Towing, for the Doe Defendants. Contrary to the Court’s July 2013 Order,

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however, Plaintiff failed to remove Jerry Dyer as a Defendant and continued to assert the same

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claims against Dyer. See Doc. 36, ¶ 28, and prayer for relief ¶ 1. This Court also observes that

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although the Magistrate Judge’s more recent Findings & Recommendations, rendered October 23,

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2014 (Doc. 86), referred to Plaintiff’s Fourth Amended Complaint (“FAC,” Doc. 77) as the

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“Operative Complaint,” the mistakes in the pleading persist. Notwithstanding the Magistrate
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Judge’s October 2014 reference to the FAC, such a reference did nothing to legitimize Plaintiff’s

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inclusion of a terminated defendant or dismissed claims. The FAC plainly conflicts with the

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Court’s July 2013 Order. Plaintiff again names Jerry Dyer as a defendant, asserts the same

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previously dismissed claims against Dyer, and maintains the previously dismissed section 1986

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action. See Doc. 77. It is therefore necessary to correct Plaintiff’s clear mistakes, correct the

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inadvertent oversight of these errors, and clarify the record so that it aligns with what the Court

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actually intended to do previously. See Sumner, 226 F.3d at 1009-10. Accordingly,

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IT IS HEREBY ORDERED that Defendants’ Motion a for Nunc Pro Tunc Order(Doc.

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94), is GRANTED. The Court specifically acknowledges that it proceeds according to its July 9,

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2013 Order (Doc. 14), that Plaintiff’s Section 1986 action and all claims against Jerry Dyer have

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been dismissed, and ORDERS the parties to comply with the Court’s July 2013 Order dismissing

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such claims and terminating such defendants. Plaintiffs’ failure to comply with the July 2013

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Order, the instant Order, or any of the Court’s orders will result in the dismissal of this action

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without further notice. Parties are advised to note well that the Court has discretion to impose any

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and all sanctions authorized by statute or Rule or within the inherent power of the Court, including

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dismissal of an action, based on Plaintiff’s failure to comply with a court order. Fed. R. Civ. P. 11;

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Local Rule 110.

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In light of the previous dismissal, the Clerk and the parties SHALL use the modified style
for all future pleadings in the case.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill

March 18, 2015

UNITED STATES DISTRICT JUDGE

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