                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



 MICHAEL R. FANNING,
         Plaintiff,
                 v.                                         Civil Action No. 14-404 (JDB)
 GEORGE JONES EXCAVATING, L.L.C.,

         Defendant.


                          MEMORANDUM OPINION AND ORDER

       In March 2014 Michael Fanning, in his capacity as the CEO of a multi-employer pension

fund, filed this action against George Jones Excavating, L.L.C., which he alleged had failed to

make contractually required pension contributions. Roughly five weeks later, the parties reached

an agreement to settle their dispute. Pursuant to that agreement, Fanning filed a motion asking the

Court to enter a consent judgment against George Jones in the amount of $48,656.70 and to close

the case. See Pl.’s Consent Mot. [ECF No. 8]. But—rightly or wrongly—that is not what the

Court did. Instead, observing that “[u]nder Fed. R. Civ. P. 41(a)(1)(A), plaintiff[] may dismiss the

action without a court order by filing a notice or stipulation of dismissal,” the Court dismissed the

case and also dismissed as moot Fanning’s motion for entry of judgment. Apr. 25, 2014 Order

[ECF No. 9]. Fanning did not contest that disposition at the time.

       Now, more than a year later, however, Fanning has filed a motion seeking relief from that

order. It appears that George Jones stuck to the settlement agreement’s payment schedule for a

while, but in April 2015 the checks stopped. Fanning would like to execute upon the judgment

the parties agreed to, but he faces a problem: the Court never entered that judgment. Invoking

only Federal Rule of Civil Procedure 60(a), Fanning asks the Court “to correct the [dismissal]



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Order to include the agreed-upon consent judgment language,” which Fanning describes as

“mistakenly omitted.” Pl.’s Mem. [ECF No. 10-1] at 3.

       The Court is sympathetic to Fanning’s request, but relief under Rule 60(a) is unavailable

here. Rule 60(a) permits a court to “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.” Fed. R. Civ.

P. 60(a). The rule’s limitation to “clerical” mistakes and those arising from “oversight and

omission” means that it cannot be used to change the substance of an order or judgment. As one

leading treatise puts it, “a motion under Rule 60(a) only can be used to make the judgment or

record speak the truth and cannot be used to make it say something other than what originally was

pronounced.” 11 Charles Alan Wright et al., Federal Practice and Procedure § 2854 (3d ed. 2012).

Or in the words of another, “Rule 60(a) applies when the record indicates that the court intended

to do one thing but, by virtue of a clerical mistake or oversight, did another.” 12 Moore’s Federal

Practice § 60.11[1][a] (3d ed. 2015). Nothing suggests the Court intended to enter the parties’

proposed judgment but accidentally forgot to do so. On the contrary, the Court’s dismissal order

reflects a conscious decision to dismiss the action rather than enter judgment against George Jones.

If the Court erred, it was an error of substance, not expression—and is therefore beyond the reach

of Rule 60(a).

       But not necessarily beyond correction. Rule 60(b) authorizes substantive relief from

judgments and orders in certain circumstances. Unfortunately, because more than a year has

passed since the Court’s order, subsections (b)(1) through (b)(3) cannot be invoked. See Fed. R.

Civ. P. 60(c)(1). Of the remaining three subsections, only (b)(6) appears potentially applicable.

Relief under (b)(6), however, “is appropriate only in ‘extraordinary circumstances,’” Kramer v.

Gates, 481 F.3d 788, 790 (D.C. Cir. 2007), which are not so clearly present here that the Court is




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willing to invoke the provision sua sponte. But the Court will certainly entertain a future motion

that argues that the standard has been met (or that another portion of Rule 60(b) is applicable).

Hence, although the Court is constrained to deny Fanning’s present motion, it is open to other

arguments that might lead to the relief he seeks.

       For the foregoing reasons, it is hereby ORDERED that [10] Fanning’s motion for relief

from order is DENIED.


                                                                       /s/
                                                                JOHN D. BATES
                                                           United States District Judge
Dated: December 7, 2015




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