Opinion
CASE NO: 09-20298-CIV-O'SULLIVAN [CONSENT].
April 25, 2011
ORDER
This matter is before the Court on the Plaintiff's Motion for Reconsideration and or Renewed Motion to Correct Final Judgments (DE # 104, 12/14/10). Having reviewed the applicable filings and the law, it is
ORDERED AND ADJUDGED that the Plaintiff's Motion for Reconsideration and or Renewed Motion to Correct Final Judgments (DE # 104, 12/14/10) is GRANTED for the reasons stated herein.
BACKGROUND
After a four day trial, the jury returned a verdict in favor of the plaintiffs on their overtime claims. See Verdict Form (DE# 80, 11/18/09). The Court found that liquidated damages were warranted and entered a Final Judgment in favor of the plaintiffs and against the defendants Delmas Meat and Fish and Freddie De Jesus Rodriguez. See Final Judgment (DE# 84, 11/30/09). The Court issued a Final Judgment on Fees and Costs (DE# 100) on March 11, 2010.
On November 3, 2010, approximately 11 months after the initial final judgment, the plaintiffs moved to correct the final judgments to include the words "AKA Thelmas Fish Meat" following the name of defendant Delmas Meat and Fish. See Plaintiff's Motion to Correct Final Judgments (DE # 102, 11/3/10). The Court denied this motion on the ground that "[t]he plaintiffs have failed to cite any case law that would allow for the substitution of parties after the entry of a final judgment." Order (DE# 103, 11/29/10).
The plaintiff filed the instant motion on December 14, 2010.See Plaintiff's Motion for Reconsideration and or Renewed Motion to Correct Final Judgments (DE # 104, 12/14/10). No response was filed.
The Court has entered a stay as to defendant Freddie De Jesus Rodriguez in light of his suggestion of bankruptcy. See Order (DE# 96, 2/10/10).
ANALYSIS
The plaintiffs move for reconsideration of the Court's prior Order (DE# 103) denying their request to correct the judgments pursuant to Rule 60(a) of the Federal Rules of Civil Procedure. Rule 60(a) states as follows:
(a) Corrections Based on Clerical Mistakes; Oversights and Omissions. The court may 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. The court may do so on motion or on its own, with or without notice. But after an appeal has been docketed in the appellate court and while it is pending, such a mistake may be corrected only with the appellate court's leave.
The plaintiffs seek to amend the judgments to include the words "AKA Thelmas Fish Meat" following the name "Delmas Meat and Fish." The plaintiffs argue that they are not seeking to add a new defendant to the judgments. See Plaintiff's Motion for Reconsideration and or Renewed Motion to Correct Final Judgments (DE # 104 at 1, 12/14/10). Rather, they are seeking to include an alias of the corporate defendant. Id. at 2.
Pursuant to Rule 60(a), the Court may "correct errors, created by mistake, oversight or omission" that are made in "transcribing or recording the judgment." Warner v. City of Bay St. Louis, 526 F.2d 1211, 1212 (5th Cir. 1976) (construing a prior, but similar, version of Rule 60(a)). A judgment may be amended under Rule 60(a) to correct a party misnomer. See Fluoro Elec. Corp. v. Branford Assocs., 489 F.2d 320, 325-26 (2d Cir. 1973). However, rule 60(a) cannot be used to correct "an error of a `more substantial nature' than merely a clerical mistake." Smith, D.O. v. Reliance Standard Life Ins. Co., No. 03-61274-CIV-Zloch, 2004 U.S. Dist. LEXIS 26261, at * 3-4 (S.D. Fla. Nov. 9, 2004).
The Eleventh Circuit in Bonner v. City of Prichard, 661 F. 2d 1206, 1207 (11th Cir. 1981) (en banc), adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981.
The Court finds that the mistake the plaintiffs seek to correct in the instant case is a misnomer. The name "Delma's Fish and Meat Market" is registered with the Florida Department of State Division of Corporations as a fictitious name. As noted in documents filed with the Florida Department of State, the owner of this fictitious name is "THELMA FISH MEAT CORP." The Court concludes that the addition of the words "AKA Thelmas Fish Meat," to the final judgments as requested in the plaintiff's motion does not amount to the addition of new party. In fact, in the answer to the original complaint and in the initial answer to the First Amended Complaint, the defendants responded as follows: "Defendants, DELMAS MEAT FISH, INC, a Florida corporation [sic Thelmas Fish and Meat, Inc.]." Answer to Complaint (DE# 9 at 1, 3/15/09); Answer to First Amended Complaint (DE# 32, 5/30/09) (emphasis added). The entity entitled "THELMA FISH MEAT CORP." was before the Court at all times in this action under a fictitious corporate name. Accordingly, the Court will amend the final judgments to add the words words "AKA Thelmas Fish Meat" following the name "Delmas Meat and Fish." See PacifiCorp Capital, Inc. v. Hansen Properties, 161 F.R.D. 285, 288 (S.D.N.Y. 1995) (stating that "[i]f a plaintiff sues and intends to sue a particular person or entity, Rule 60 is an appropriate vehicle through which to correct an inadvertent error in the name of the defendant.").
The name "Delma's Fish and Meat Market" varies from the name of the corporate defendant listed in the First Amended Complaint (DE# 28, 5/15/09) in that the words "fish" and "meat" are transposed and the word "market" is added. However, the defendants created this confusion by operating with words "Delmas Meat and Fish" on its storefront. See Exhibit 1 (DE# 102-1 at 2, 11/3/10) (picture of a store front window with the name "Delmas Meat and Fish.").
The defendants later filed an Amended Answer to the First Amended Complaint which removed the reference to "Thelmas." See Amended Answer to First Amended Complaint (DE# 38 at 1, 8/11/09).
The plaintiffs moved to correct the final judgments to include the words "AKA Thelmas Fish Meat." The undersigned notes that the plaintiffs request a plural form of the word "Thelma" while a singular form of this word appears on the print out from the Division of Corporations filed by the plaintiffs. See Exhibit 2 (DE# 102-2 at 2-3, 11/3/2010). The Court will amend the final judgments as requested by the plaintiffs. The Court finds this course of action is proper given the defendants' admission in their responses to the original complaint and the first amended complaint. See supra.
CONCLUSION
For the reasons stated herein, the Plaintiff's Motion for Reconsideration and or Renewed Motion to Correct Final Judgments (DE # 104, 12/14/10) is GRANTED. The Court will issue amended final judgments in accordance with this Order.
DONE AND ORDERED in Chambers at Miami, Florida.