                                                                           FILED
                           NOT FOR PUBLICATION                             APR 01 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


HARRY DEPRINS, individually and as               No. 12-15359
personal representative of the Estates of
Armand DePrins and Simonne DePrins,              D.C. No. 3:10-cv-08133-DKD
deceased,

              Plaintiff - Appellant,             MEMORANDUM*

  v.

CHRISTINA N. CLARK, wife; AARON
J. CLARK, husband; MICHAEL E. ST
GEORGE, named in First Amended
Complaint; MICHAEL J. MICHAELES,
personal representative of the Estate of
Donald Belanger, deceased,

              Defendants - Appellees.


                   Appeal from the United States District Court
                            for the District of Arizona
                   David K. Duncan, Magistrate Judge, Presiding

                     Argued and Submitted February 14, 2014
                            San Francisco, California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: CALLAHAN and M. SMITH, Circuit Judges, and KORMAN, Senior
District Judge.**

                                           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.1

                                          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.



          **
             The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
      1
             Because the parties are familiar with the facts and procedural history,
we do not restate them here except as necessary to explain our decision.

                                           2
      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 “[c]ase 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, Michaeles filed an answer to the complaint. On January 24,

2012 the magistrate judge denied DePrins’ motion as an untimely Rule 59 motion



                                           3
to alter or amend judgment. On February 21, 2012 DePrins filed notice of this

appeal.

                                          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., 369 F.3d

1128 (9th Cir. 2004). The grant or denial of a Rule 60(a) or 59(e) motion is

reviewed for abuse of discretion. Garamendi v. Henin, 683 F.3d 1069, 1077 (9th

Cir. 2012) ; Kode v. Carlson, 596 F.3d 608, 611 (9th Cir. 2010). Likewise, a

district court’s decision to dismiss for failure to serve is reviewed for abuse of

discretion. See Puett v. Blandford, 912 F.2d 270, 273 (9th Cir. 1990). “A district

court abuses its discretion when it makes an error of law.” Garamendi, 683 F.3d at

1077 (internal citations omitted).

                                          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


                                           4
waives service of process when it files an answer to the complaint, as Michaeles

did here, on behalf of the estate;2 and (d) a court may not sua sponte dismiss claims

against certain parties without reaching the merits unless it first notifies the

plaintiff and offers a chance to object. See Fed. R. Civ. P. 4; see also Crowley v.

Bannister, 734 F.3d 967, 975 (9th Cir. 2013) (“[A] district court abuses its

discretion when ... it dismisses a complaint sua sponte for lack of service without

first giving notice to the plaintiff and providing an opportunity for [him] to show

good cause for the failure to effect timely service.”) (internal citations omitted)).

      B.     The district court’s denial of DePrins’ 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, 683 F.3d at 1077 (explaining the difference between a Rule 59(e)

and a Rule 60(a) motion). Federal Rule of Civil Procedure 60(a) may be invoked




      2
              See Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986) (“A general
appearance or responsive pleading by a defendant that fails to dispute personal
jurisdiction will waive any defect in service or personal jurisdiction.”).

                                            5
to change clerical mistakes, omissions or oversights in a judgment, order or the

record. Fed. R. Civ. P. 60(a).

      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.3 Fed. R. Civ.

P. 59. While the grant of a Rule 59(e) motion to “alter or amend” would signify a

substantive change of mind by the court, Rule 60(a) is usually limited to

“clarification of matters intended to be implied or subsumed by the original

judgment,” or “to resolve an ambiguity in its original order to more clearly reflect

contemporaneous intent and ensure that the court’s purpose is fully implemented.”

Garamendi, 683 F.3d at 1077 (internal citations omitted) (citing 12 James Wm.

Moore et al., Moore’s Federal Practice § 60.11[1][c] (2011)).

      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., 248

F.3d 892, 898-899 (9th Cir. 2001) (a Rule 59(e) motion filed well past the deadline

should have been considered as a Rule 60(b) motion).



      3
             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).

                                          6
      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, 985 F.2d 1031, 1034 (9th

Cir. 1993) (internal citations omitted). In addition, we disfavor default judgments.

See SEC v. Seaboard Corp., et al., 666 F.2d 414, 417 (9th Cir. 1991) (“Rule 60(b)

is to be given liberal construction.”) (internal citations omitted).

      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


                                            7
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,

360 F.3d at 993.

                                          V.

      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, 131 S. Ct. 2020, 2025 (U.S.

2011) (“Vacatur rightly ‘strips the decision below of its binding effect,’ and clears

‘the path for future relitigation.’”). Accordingly, should DePrins want appellate

review of the merits of his claim against the Clarks, he must await the entry of a

final judgment or seek certification under Rule 54(b).

      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.




                                          8
                                                                            FILED
DePrins v. Clark, 12-15359                                                   APR 01 2014

                                                                         MOLLY C. DWYER, CLERK
M. SMITH, Circuit Judge, dissenting:                                      U.S. COURT OF APPEALS



      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 against two defendants who did not

move for summary judgment. DePrins missed the 30-day deadline to appeal from

the district court’s judgment. See Fed. R. App. P. 4(a)(1). DePrins also missed the

28-day deadline to file a motion to alter or amend the judgment under Rule 59(e).

Having missed these deadlines, DePrins filed a motion under Rule 60(a)—which

has no time limit—requesting clarification that the district court’s order did not

intend to dismiss those defendants who did not move for summary judgment. The

district court read the motion as an improperly styled Rule 59(e) motion and denied

it as untimely. DePrins appeals only from the denial of this motion.

      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

                                          1
60(a) only allows for “clarification and explanation, consistent with the intent of

the original judgment.” Garamendi v. Henin, 683 F.3d 1069, 1079 (9th Cir. 2012).

This is true even where the court later realizes that it erred in its original judgment.

Id. at 80 (“[the Rule] does not allow a court to make corrections that, under the

guise of mere clarification, reflect a new and subsequent intent because it perceives

its original judgment to be incorrect” (internal quotation marks omitted)).

       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, 551 U.S. 205,

209 (2007) (“the taking of an appeal within the prescribed time is ‘mandatory and

jurisdictional’”).

       For the foregoing reasons, I respectfully dissent.




                                            2
