Nunc Pro Tunc Motion: Justice Loses Again - U.S. Seventh Circuit
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Nunc Pro Tunc Motion: Justice Loses Again

The Seventh Circuit Court of Appeals addressed the particulars of the nunc pro tunc motion this week in ongoing litigation over unregistered guns seized from John Justice.

We're covering this opinion for three reasons.

  1. Judge Frank Easterbrook, our current favorite on the Seventh Circuit, wrote it.
  2. The party's name is Justice. We like the ambiguities of Justice.
  3. We can all benefit from a nunc pro tunc refresher.

Now, on to the good stuff.

In 2006 police seized six unregistered guns from John Justice's business. He sued and lost. In 2010 Justice filed another suit based on the same events, and he lost again. (This will be a recurring theme for Justice.)

Justice asked the district court to reconsider its decision under Federal Rule of Civil Procedure (FRCP) 59(e). A 59(e) motion must be filed within 28 days of the district court's decision. That time cannot be extended. Justice had until November 22, 2011, to file his motion, but he didn't file until 3 a.m. CST on November 23. (Sidebar: Hooray for electronic filing giving us the option of a 3 a.m. filing.)

A few days later he asked the district judge to deem the motion to have been filed on November 22. The judge stated in open court: "The motion for leave to file nunc pro tunc is granted," but he didn't say why. The judge then denied the motion on the merits, stating that it was just a rehash of arguments already made and rejected.

Having lost again, Justice turned to the Seventh Circuit Court of Appeals for reconsideration under FRCP 59(e). The Seventh Circuit, however, was unwilling to accept the district court's nunc pro tunc grant without a civil procedure lesson.

Nunc pro tunc is Latin for "now for then." A judge has the power to grant a nunc pro tunc motion to change records so that they show what actually happened. (For example, if a clerk's office erroneously records the wrong filing date, the judge could correct the records to show the right date.) Here, the district judge botched the motion by altering the record to reflect the wrong date.

A nunc pro tunc motion can't be used to revise history. A judge who lacks the authority to grant an extension of time under FRCP 6(b)(2) can't just grant the extension anyway by calling it a "nunc pro tunc order" and backdating a document.

Justice's motion 59(e) motion still isn't resolved -- the Seventh Circuit Court of Appeals kicked the issue back to the parties -- but you can still use this case to avoid the nunc pro tunc mistakes. Just remember: You can't use a nunc pro tunc motion to alter the record to reflect something that didn't actually happen.

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