Free Motion to Amend/Correct - District Court of California - California

Case 3:07-cv-02376-L-JMA

Document 18

Filed 05/28/2008

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KAREN P. HEWITT United States Attorney MEGAN CALLAN Assistant U.S. Attorney California State Bar No. 230329 U.S. Attorney's Office 880 Front Street, Room 6293 San Diego, California 92101-8893 Telephone: (619) 557-7120 Fax: (619) 557-5004 Email: [email protected] Attorneys for the Defendant UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On this day, May 28, 2008, Defendant filed with the Court its Notice of Motion and Motion by Defendant to Dismiss, Memorandum of Points and Authorities Supporting Defendant's Motion to Dismiss, Exhibit A Supporting Defendant's Motion to Dismiss and a Certificate of Service regarding Defendant's Motion to Dismiss. [Doc. no. 17] Each of the above documents, averments, pleadings, or briefings bore the incorrect date, May 29, 2008. Defendant now requests ex parte that the Court order nunc pro tunc that the date of the signature on each of the Notice of Motion and Motion by Defendant to Dismiss, Memorandum of Points and Authorities Supporting Defendant's Motion to Dismiss, Exhibit A Supporting Defendant's Motion to Dismiss, and Certificate of Service be corrected to the date in fact, May 28, 2008. Undersigned counsel unintentionally erred in dating the signatures and date of service on the previously filed documents with tomorrow's date. However, no prejudice will result to the Court or the parties if the Court orders the correction of this date because the Court's electronic filing system ) ) Plaintiff, ) ) ) v. ) ) Department of Veteran Affairs, ) ) Defendant. ) ___________________________________ ) Karal Hasani Efia Battle-El, Civil No. 07cv2376-L (JMA) EX PARTE APPLICATION TO NUNC PRO TUNC CORRECT DEFENDANT'S MOTION TO DISMISS AND SUPPORTING DOCUMENTS

Case 3:07-cv-02376-L-JMA

Document 18

Filed 05/28/2008

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(CM/ECF) reflects that the documents were, in fact, filed on Wednesday, May 28, 2008. See Doc. no. 17. Moreover, Plaintiff will not be prejudiced because he will be served with the original incorrectly dated documents, as well as this ex parte application notifying him of the error. A nunc pro tunc entry merely describes the inherent power of the Court to make its records speak the truth or to correct a record at a later time. See Simmons v. Atlantic C.L.R. Co., 235 F. Supp. 325, 330 (E.D.S.C. 1964). As such, the Court is empowered to order that the previously filed documents, (Doc. no. 17), reflect the correct date upon which they were in fact signed, filed, and served ­ May 28, 2008. In addition, there is legal authority for the Court to order the amendment of the prior filing because Fed. R. Civ. P. 15(b) permits that pleadings be amended to conform to evidence and Rule 60(a) permits that clerical errors in the record may be corrected by the Court. Based upon the foregoing, Defendant respectfully requests that the Court order nunc pro tunc that the date of the signature on each of the Notice of Motion and Motion by Defendant to Dismiss, Memorandum of Points and Authorities Supporting Defendant's Motion to Dismiss, Exhibit A Supporting Defendant's Motion to Dismiss, and Certificate of Service be corrected to the date in fact, May 28, 2008. Dated: May 28, 2008 Respectfully submitted, KAREN P. HEWITT United States Attorney s/ Megan Callan

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MEGAN CALLAN Assistant U.S. Attorney Attorneys for Defendants Email: [email protected]

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Ex Parte Motion to Correct Nunc Pro Tunc

07cv2376