[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

United States Court of Appeals For the First Circuit

No. 00-1312

TRANS NATIONAL COMMUNICATIONS, INC.,

Plaintiff, Appellee,

v.

OVERLOOKED OPINIONS, INC.,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge]

Before

Torruella, Chief Judge, Boudin and Lipez, Circuit Judges.

C. Enrico Schaefer and Smith & Johnson, Attorneys, P.C. on brief for appellant.

July 12, 2000 Per Curiam. Overlooked Opinions, Inc. (“OOI”)

appeals from the district court’s denial of its motion

pursuant to Fed.R.Civ.P. 60(a) for correction of the

judgment entered in its favor to include prejudgment

interest pursuant to Mass.Gen.Laws ch. 231, § 6C.

“In diversity cases, state law must be applied in

determining whether and how much pre-judgment interest

should be awarded.” Fratus v. Republic Western Ins. Co.,

(1 st Cir. 1998). Under Massachusetts law,

prejudgment interest “attaches automatically” to all

judgments for pecuniary damages in breach of contract

actions. O’Malley v. O’Malley,

(1995).

The statute provides that interest “shall be added by the

clerk of the court to the amount of damages.” Mass.Gen.Laws

ch. 231 §6C. It “commands a ministerial act.” O’Malley,

.

Here, the form of judgment entered was one that had

been agreed upon and proposed by the parties. It awarded

damages to OOI on certain claims, including a breach of

contract claim, “exclusive of interest and costs.” At the

time that judgment entered, some of OOI’s counter claims

against Trans National Communications, Inc. (“TNC”) had not

yet been adjudicated. The proposed form of judgment agreed to by the parties and adopted by the court included the

following statement:

All other claims by [OOI] against [TNC], including but not limited to claims for attorney’s fees, are dismissed with prejudice, having been knowingly and intentionally waived by [OOI].

Judgment in that form entered on August 4, 1999. On

November 2, 1999, OOI filed its motion pursuant to

Fed.R.Civ.P. 60(a), for the district court to correct the

judgment to include prejudgment interest pursuant to

Mass.Gen.Laws ch. 231, § 6C.

Rule 60(a) allows for the correction “at any time”

of “clerical mistakes” or “errors arising from oversight or

omission.” Fed.R.Civ.P. 60(a). It “enables a court to

ensure that its orders, judgments, and other parts of its

record of proceedings are an accurate reflection of the true

actions and intent of the court and the parties.” 12 James

Wm. Moore, Moore’s Federal Practice § 60.02[1] (3d ed.).

“Rule 60(a) is not a vehicle . . . to change that which has

been deliberately done.” 11 Charles Alan Wright, Arthur R.

Miller and Mary Kay Kane, Federal Practice and Procedure §

2854 at 249 (2d ed. 1995).

In denying OOI’s Rule 60(a) motion, the district

court found that the failure of the judgment to include

-3- prejudgment interest did not result from oversight or

omission, but instead accurately reflected the agreement of

the parties “through an assented-to judgment in which all

but post-judgment interest was waived.” Memorandum and

Order, 1/25/00, pp. 5-6. The district court specifically

found, based upon the language of the assented-to judgment

and OOI’s course of conduct after judgment entered, that the

omission of prejudgment interest from the judgment was

consistent with the parties’ agreement. That finding is

supported by the record and is not clearly erroneous.

Because the district court supportably found that the

judgment’s failure to include prejudgment interest was an

accurate reflection of the parties’ intent, it properly

denied OOI relief pursuant to Fed.R.Civ.P. 60(a).1

The district court’s denial of OOI’s Motion to

Correct a Clerical Mistake is affirmed. See Loc. R. 27(c).

1 OOI argues on appeal that its statutory right to prejudgment interest is not waivable. However, OOI has not cited, and we are not aware of, any authority supporting the position that parties may not enter an agreement to waive their right to prejudgment interest under Massachusetts law.

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