Free Reply in Support of Motion - District Court of Arizona - Arizona

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KEITH M. KNOWLTON, L.L.C. 1630 South Stapley Drive Suite 231 Mesa, Arizona 85204 (480) 755-1777 Attorney for Plaintiff Keith M. Knowlton - SBN 011565

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ) ) ) RONALD DIBLE, and MEGAN DIBLE, ) husband and wife; ) ) Plaintiffs, ) ) vs. ) ) THE CITY OF CHANDLER, a municipality ) of the State of Arizona; THE CITY OF ) CHANDLER POLICE DEPARTMENT, a law ) ) enforcement agency of the City of Chandler; CHANDLER POLICE CHIEF BOBBY JOE ) HARRIS and JUDY HARRISS, husband and ) ) wife. ) ) Defendants. ) ) ) ) ) )

No. CV 03-00249-PHX-JAT

PLAINTIFFS REPLY IN SUPPORT OF THEIR MOTION TO STRIKE DEFENDANTS' MOTION FOR CORRECTION OF RECORD AND RESPONSE TO MOTION FOR CORRECTION OF RECORD

(Assigned to the Hon. James A. Teilborg)

Defendants do not challenge that the Court does not have jurisdiction to consider a Rule 60(a) motion at this time. Based on the clear language of Rule 60(a) itself and the holding of this District in Cuevas v. Miranda, ___ F.3d ____, 2007 WL 128781 (D.Ariz. 2007), the Rule 60(a) motion must be stricken. However, the Motion should also be denied because this matter does not involve clerical error, but a substantive misidentification error that can only be corrected under Rule 60(b). 1 Document 178

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Rule 60(a) cannot be used to alter the substantive rights of the parties. See Paddington Partners v. Bouchard, 34 F.3d 1132, 1140 (2d Cir.1994) ("An error in a judgment that accurately reflects the decision of the court or jury as rendered is not `clerical' within the terms of Rule 60(a)."). Rule 60(a) is directed to errors or omissions that are "essentially ministerial act of transcribing the court's rendered judgment into writing." Rule 60(a) cannot serve to correct errors or omissions in the judicial act of rendering that judgment. Dudley ex rel. Estate of Patton v. Penn-America Ins. Co., 313 F.3d 662, 671 (C.A.2 (N.Y.) 2002). A clerical 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 (emphasis added)." Harcon Barge Co., Inc. v. D & G Boat Rentals, Inc., 784 F.2d 665, 668-69 (C.A.5 (La.),1986). Rule 60(a) is used to correct judgments that are incorrect because they are errors similar to an erroneous mathematical computation. Chavez v. Balesh, 704 F.2d 774, 776-77 (5th Cir.1983). "Errors of a more substantial nature are to be corrected by a motion under Rules 59(e) or 60(b)." 11 Wright and Miller, Federal Practice and Procedure, § 2854 at 149 (1973). Correction of an error of "substantive judgment," therefore, is outside the reach of Rule 60(a). Jones v. Anderson-Tully Co., 722 F.2d 211, 212 (5th Cir.1984); Trahan v. First National Bank of Ruston, 720 F.2d 832, 833-34 (5th Cir.1983), judgment of district court aff'd, 747 F.2d 990 (5th Cir.1984) (per curiam). See also, In re Galiardi, 745 F.2d 335, 337 (5th Cir.1984); Warner v. City of Bay St. Louis, 526 F.2d 1211, 1212 (5th Cir.1976), judgment of district court aff'd, 552 F.2d 583 (5th Cir.1977) (per curiam); West Virginia Oil & Gas Co. v. George E. Breece Lumber Co., 213 F.2d 702, 705 (5th Cir.1954). In this case, the Judgment entered by the Clerk is identical and consistent with the February 9, 2006 order of the Court. While the Court indicated in its prior July 8, 2005 Order that sanctions would be entered against Counsel, the Judgment, after consideration of additional pleadings, was against Plaintiffs rather than Counsel. This is not a clerical error but a substantive one. The error involves judgment and misidentification. Substantive Judicial errors are corrected pursuant to Rule 60(b) rather than Rule 60(a). Nevitt v. United States, 886 F.2d 1187, 1188 (9th

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Cir. 1989); see Wesco Prod. Co. v. Alloy Auto. Co., 880 F.2d 981, 984-85 (7th Cir.1989). Rule 60(b)(1) can be used by a trial court to correct judicial errors. Gila River Ranch, Inc. v. United States, 368 F.2d 354, 357 (9th Cir.1966); Kingvision Pay-Per-View Ltd. v. Lake Alice Bar, 168 F.3d 347, 350 (9th Cir.1999) ("[T]he words `mistake' and `inadvertence' ... may include mistake and inadvertence by the judge."). Defendant is asking this Court to do more than just correct the recitation of the Court Judgment as set forth in the record. More than a year and one-half latter, Defendants are asking this Court change who the judgment is against. This is a substantive judgment and misidentification error that is outside the scope of Rule 60(a). This judgment and misidentification error can only be corrected under Rule 60(b). Defendants have not sought such relief. WHEREFORE, because the Court does not have jurisdiction, the motion is untimely and should be stricken as is. However, because the error is involves misidentification to consider this request until jurisdiction is returned to the Court on appeal, Plaintiffs request this motion be stricken from the record at this time RESPECTFULLY SUBMITTED this 28th day of September, 2007. KEITH M. KNOWLTON, L.L.C.

/s/ Keith Knowlton this date By:____________________________ Keith M. Knowlton Attorney for Plaintiff 1630 South Stapley, Suite 231 Mesa, Arizona 85204

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Original filed by EDF with the Court and one copy sent by facsimile and First Class Mail this 20th day of September, 2007, to: Katherine Baker GREEN & BAKER 7373 N. Scottsdale Rd., Suite C-226 Scottsdale, Arizona 85253 /s/ Keith Knowlton this date __________________________

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