Unpublished Disposition, 907 F.2d 154 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 907 F.2d 154 (9th Cir. 1989)

No. 89-15043.

United States Court of Appeals, Ninth Circuit.

Before TANG and BEEZER, Circuit Judges, and STEPHENS,*  District Judge.

MEMORANDUM** 

Defendant Jerald L. Woods appeals from district court decision adopting magistrate's findings and recommendations, and granting plaintiffs' motion to amend a default judgment against Woods to correct the name used to refer to defendant in the judgment. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs, Communications Capital Group, Ltd. and Fred Marsh II, filed suit against defendants Tabb Associates, Fisher, Sebeney, and "Jerome Woods," aka "Jerald L. Woods," on March 21, 1986. Defendants never answered, and a default judgment was entered against them on May 2, 1986.

The matter was referred to Magistrate Claudia Wilken to determine damages. Final judgment for $1.8 million dollars was entered against the defendants on March 3, 1987.

On April 29, 1988, defendant Woods moved for a protective order arguing that he never received service of the original complaint. On June 3, 1988, plaintiffs moved to amend the judgment to correct the name used to sue the defendant. The named defendant was "Jerome Woods," whereas "Jerald L. Woods" is the true name of the defendant. An evidentiary hearing as to both motions was held on June 15, 1988 before Magistrate Wilken.

Magistrate Wilken issued her Findings on July 1, 1988. Magistrate Wilken found that defendant Woods had been served on March 26, 1986, and recommended that defendant's motion for a protective order be denied. She also found plaintiffs' motion to amend the judgment under Federal Rules of Civil Procedure Rule 60(a) be granted.

The district court adopted Magistrate Wilken's findings and conclusions, and issued an order to that effect on December 2, 1988. Defendant Woods filed timely notice of appeal on January 3, 1989.

DISCUSSION

I. Did plaintiffs produce sufficient evidence to support the finding that defendant Woods was served with process?

Defendant attacks the magistrate's findings that he was served with the original complaint. A district court's findings of fact, or a magistrate's findings adopted by a district court, are subject to the clearly erroneous standard of review. Fed.R.Civ.Pro.Rule 52(a); United States v. McConney, 728 F.2d 1195, 1200-01 (9th Cir.), cert. denied, 469 U.S. 824 (1984).

Under this standard, the appellate court must accept the lower court's findings unless upon review the appellate court is left with the definite and firm conviction that a mistake has been committed. United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948); Dollar Rent-A-Car of Washington, Inc. v. Travelers Indemnity Co., 774 F.2d 1371, 1374 (9th Cir. 1985). When a trial court has made a finding based on testimony of one or two witnesses each of whom has given plausible testimony which is not contradicted by external evidence, that finding can virtually never be "clear error." Anderson v. City of Bessemer City, 470 U.S. 564 (1985).

In this case, the magistrate was faced with conflicting but plausuble testimony. Having observed the witnesses as they testified before her she found that the testimony produced by the plaintiff was more credible than defendant's testimony. This finding cannot be overturned on appeal absent a definite and firm conviction that a mistake has been made. McConney, 728 F.2d at 1201.

Given the clear basis for the magistrate's conclusions in the evidence, the plaintiffs have established that defendant Woods was served with process.

II. Did the district court err in denying defendant Woods a rehearing on the issue of service of process?

Defendant argues that denial of a hearing before the district judge was error, being either a violation of due process or an abuse of discretion. Questions of law are reviewed under the de novo standard of review. McConney, 728 F.2d at 1201.

A. Was denial of rehearing a violation of Woods' right to due process?

Defendant argues that because of the importance of the issue of whether he actually received service of process, the final trier of fact, the district judge himself, should have listened to the testimony and weighed the credibility of the witnesses and that failure to do so is a due process violation under Mathews v. Eldridge, 424 U.S. 319 (1976). The Supreme Court considered the role of magistrates in making decisions in United States v. Raddatz, 447 U.S. 667 (1980). In examining the use of magistrates to determine the admissibility of evidence in criminal cases, the Court stated that due process requires only a hearing appropriate to the nature of the case. What is appropriate depends on three factors: "(a) the private interest implicated; (b) the risk of an erroneous determination by reason of the process accorded and the probable value of added procedural safeguards; and (c) the public interest and administrative burdens, including costs that the additional procedures would involve." Raddatz, 447 U.S. at 677 (citing Mathews, 424 U.S. at 335).

The Ninth Circuit has considered the use of magistrates in various situations. The Court of Appeals examined the use of a magistrate to review a motion claiming insufficiency of a complaint. United States v. DeCoito, 764 F.2d 690 (9th Cir. 1985). In the DeCoito case, the court held that as long as the district court "exercises its own independent judgment," constitutional requirements are satisfied. Id. at 694. See also United States v. Peacock, 761 F.2d 1313 (9th Cir.), cert. denied, 474 U.S. 847 (1985) (use of magistrates to conduct voir dire upheld); United States v. Saunders, 641 F.2d 659 (9th Cir. 1980), cert. denied, 452 U.S. 918 (1981) (use of a magistrate to temporarily sit in a trial over jury deliberations upheld).

In the present case, the district court's decision fulfills the standards of due process. While it is true that a finding that Woods did receive service of process is dispositive in this case, a hearing before the district judge is not required. In Raddatz, the Supreme Court has ruled that to construe 28 U.S.C. § 636(b) (1) in this manner "would largely frustrate the plain objective of Congress to alleviate the increasing congestion of litigation in the district courts." Raddatz, 447 U.S. at 676 n. 3.

An application of the Eldridge factors to this case dictates no different answer than that reached by the Raddatz court. The private interest implicated is no greater than that in Raddatz, where the suppression of an important piece of evidence was dispositive of an entire controversy. Since the magistrate has not been shown to be untrustworthy for any reason, there is no value gained by additional process. Because of this, there is no basis for imposition of the public burden of conducting a hearing before the district judge.

The fact that the magistrate's decision is based solely upon the witness' credibility is irrelevant to this analysis. For example, in Raddatz, the magistrate stated specifically that he "found the testimony of the Alcohol, Tobacco, and Firearms Agent more credible" than the evidence consisting of testimony to the contrary. Raddatz, 447 U.S. at 671-72.

Denial of a rehearing before the district judge is not a due process violation.

B. Was adoption of the magistrate's findings without rehearing an abuse of discretion?

Under 28 U.S.C. § 636(b) (1), the district judge must make a de novo determination of a magistrate's findings and recommendations before adoption without rehearing. Raddatz, 447 U.S. at 675; North Amer. Watch v. Princess Ermine Jewels, 786 F.2d 1447 (9th Cir. 1986). The district judge's decision to adopt a magistrate's findings is subject to review under the abuse of discretion standard. United States v. Hardin, 710 F.2d 1231, 1235 (7th Cir.), cert. denied, 464 U.S. 918 (1983) (citing Raddatz, 447 U.S. at 676).

A de novo review does not require that the district judge retry the matter. It means only that the district judge must review the record and arrive at an independent conclusion. Raddatz, 447 U.S. at 675.

Defendant Woods argues that the magistrate's findings are clearly erroneous, and that, therefore, the district judge's adoption of these findings without a second hearing is an abuse of discretion. This argument is without merit.

The trial court bases its decision on an independent review of the record. As indicated above, the magistrate's findings of facts were supported by the record, and, therefore, were not clearly erroneous. The district judge's decision to adopt them after an independent review of the record was not an abuse of discretion. See Hardin, 710 F.2d at 1235.

The district court did not err in adopting the magistrate's findings of fact and recommendations.

III. Was it error to grant plaintiffs' motion to amend judgment?

The magistrate allowed plaintiffs to amend the judgment to reflect defendant Woods' true name, under Federal Rules of Civil Procedure Rule 60(a). A district court's determinations of law are subject to de novo review. McConney, 728 F.2d at 1201.

Rule 60(a) provides for the correction of "clerical mistakes in judgments, orders, or other parts of the record," and is appropriately applied to misnomers. We have held that " [i]n deciding whether a trial court may alter a judgment pursuant to Fed.R.Civ.Pro. 60(a), our Circuit focuses on what the court [or party] originally intended to do." Blanton v. Anzalone, 813 F.2d 1574, 1577 (9th Cir. 1987) (original emphasis). See also Panama Processes, S.A. v. Cities Services Co., 789 F.2d 991, 994 (2d Cir. 1986) ("The relevant distinction is 'between what is erroneous because the thing spoken, written, or recorded is not what the person intended to speak, write, or record, and what is erroneous because the person later discovers that the thing said, written, or recorded was wrong. The former comes within Rule 60(a); the latter does not.' ") (quoting Marc Rich & Co., A.G. v. United States, 739 F.2d 834, 837 (2d Cir. 1984)).

Defendant argues that plaintiff intended to name "Jerome Woods" as defendant, and that this mistake is not a clerical error correctable under Rule 60(a). The evidence shows that the person sued and served with process was misnamed because the plaintiffs did not know his true name. In fact, there is no evidence that there is a person named "Jerome Woods." Since Rule 60(a) is used to conform a judgment to what was actually intended, amendment of the judgment was proper. Blanton, 813 F.2d at 1577.

The district court's conclusion to conform the judgment to that which was actually intended is upheld and its decision is AFFIRMED.

 *

The Honorable Albert Lee Stephens, Jr., Chief Judge Emeritus, Central District of California, sitting by designation

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3