1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA

6

7 DEBRA VOLLE, Case No. 19-cv-00545-PJH 8 Plaintiff,

9 v. ORDER GRANTING MOTION FOR RELIEF FROM JUDGMENT 10 SHERWIN PETROLEUM, INC., Re: Dkt. No. 40 11 Defendant. 12

13 14 Before the court is plaintiff Debra Volle’s (“plaintiff”) motion for relief from 15 judgment. Dkt. 40. Defendant Sherwin Petroleum, Inc. (“Sherwin Petroleum” or 16 “defendant”) has not appeared in this action. The matter is fully briefed and suitable for 17 decision without oral argument. Having read plaintiff’s papers and carefully considered 18 her arguments and the relevant legal authority, and good cause appearing, the court 19 hereby rules as follows. 20 On January 30, 2019, plaintiff filed a complaint against Sherwin Petroleum alleging 21 violations of the Americans with Disabilities Act,

et seq. (“ADA”) and 22 the Unruh Act,

et seq. Dkt 1. Plaintiff served defendant’s authorized 23 agent with the summons and complaint on February 7, 2019. On July 10, 2019, plaintiff 24 filed a First Amended Complaint (“FAC”) incorporating the results of a General Order 56 25 joint site inspection with defendant that took place on March 19, 2019. Dkt. 16, ¶ 10. 26 Despite the fact that defendant participated in the joint site inspection and plaintiff served 27 a copy of the FAC on defendant, Sherwin Petroleum has not appeared before this court. 1 Dkt. 22. 2 Upon plaintiff’s motion for default judgment, Magistrate Judge Cousins issued a 3 report and recommendation recommending that this court grant the motion, award 4 plaintiff $12,000 in statutory damages, $10,664.50 in attorneys’ fees and costs, and enter 5 injunctive relief requiring modification of defendant’s property. The court granted 6 plaintiff’s motion for default judgment, awarded plaintiff statutory damages totaling 7 $4,000, costs totaling $550, attorneys’ fees totaling $6,720, and litigation expenses 8 totaling $3,047, for a total of $13,867. Dkt. 38. The court also awarded plaintiff “the 9 injunctive relief specified in the magistrate judge’s report and recommendation.”

. 10 The court then issued judgment, but only indicated the damages, attorneys’ fees, and 11 costs and did not order injunctive relief. Dkt. 39. Plaintiff filed the present motion 12 pursuant to Federal Rule of Civil Procedure 60(a) to amend the judgment and include an 13 order for injunctive relief. Dkt. 40. 14 Federal Rule of Civil Procedure 60(a) provides, in relevant part: “The court may 15 correct a clerical mistake or a mistake arising from oversight or omission whenever one is 16 found in a judgment, order, or other part of the record. The court may do so on motion or 17 on its own, with or without notice.” Fed. R. Civ. P. 60(a). A district court’s jurisdiction to 18 enter an order nunc pro tunc under Rule 60(a) “is limited to making the record reflect 19 what the court actually intended to do at an earlier date, but which it did not sufficiently 20 express or accomplish due to some error or inadvertence.” Nisenan Tribe of the Nev. 21 City Rancheria v. Jewell, 650 Fed. App’x 497, 499 (9th Cir. 2016) (quoting United States 22 v. Sumner,

(9th Cir. 2000)). “What the district court intended to do 23 may be determined by looking to the circumstances surrounding the original order and 24 also to the court’s subsequent statements of its original intent, providing that the record 25 gives no reason to doubt such statements.” United States v. Alisal Water Corp., No. 26 5:97-CV-20099-EJD,

, at *3 (N.D. Cal. June 25, 2019) (citing Guenther 27 v. United States,

(9th Cir. 2002)). 1 Magistrate Judge Cousins’ report and recommendation, including the injunctive relief 2 detailed therein. The judgment did not include the injunctive relief, but the court intended 3 to award plaintiff injunctive relief as evidenced by adopting the report and 4 recommendation and specifically referencing the injunctive relief specified in the report 5 and recommendation. The “touchstone” of Rule 60(a) “is fidelity to the intent behind the 6 original judgment.” Garamendi v. Henin,

(9th Cir. 2012).

7 A district court may also invoke Rule 60(a) to resolve an ambiguity in its original order to more clearly reflect 8 contemporaneous intent and ensure that the court’s purpose is fully implemented. 9 . . . . If a judgment, as worded, is too vague to permit enforcement, 10 the court may reword the judgment as necessary to reflect its original intent. 11 12

(quoting 12 James W. Moore, Moore’s Federal Practice, § 60.11(1)(c) (2011)). That 13 reasoning applies here and the court will issue an amended judgment to reflect its 14 original intent. For the foregoing reasons, the court GRANTS plaintiff’s motion. 15 IT IS SO ORDERED. 16 Dated: March 24, 2020 17 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 18 United States District Judge

19

20 21 22 23 24 25 26 27