John Garamendi v. Jean-Francois Hennin , 683 F.3d 1069 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN GARAMENDI, as Insurance 
Commissioner of the State of
California and as Conservator,
Liquidator and Rehabilitator of the
ESTATE OF EXECUTIVE LIFE
INSURANCE COMPANY,
Plaintiff-counter-defendant-
Appellee,
and
STEVEN POIZNER, AS INSURANCE
COMMISSIONER OF THE STATE OF
CALIFORNIA; STATE OF CALIFORNIA,
Plaintiffs, No. 10-57000
v.  D.C. No.
2:99-cv-02829-
JEAN FRANCOIS HENIN, AHM-CW
Defendant-cross-claimant-
Appellant,
and
JEAN-CLAUDE SEYS, an individual;
JEAN IRIGOIN, an individual; ALAIN
MALLART; NOVATEC, Erroneously
Sued as SDI Vendome SA;
MAAF ASSURANCES, a mutual
insurer organized under French
law; MAAF VIE SA, a corporation
organized under French law,
Defendants,

7127
7128 GARAMENDI v. HENIN
ALTUS FINANCE SA, a corporation 
organized under French law; CDR
ENTERPRISES, a corporation
organized under French law;
CREDIT LYONNAIS SA, a
corporation organized under
French law; CONSORTIUM DE
REALISATION SA, a corporation
organized under French Law,
Defendants-cross-defendants,
ARTEMIS SA, a corporation under
French law,
Defendant-counter-claimant,
FRANCOIS PINAULT,
Counter-claimant, 
HARTFORD FIRE INSURANCE
COMPANY, Third-party Intervenor,
Intervenor-Plaintiff,
SUNAMERICA, INC., FKA AIG
Retirement Services, Inc.;
NATIONAL ORGANIZATION OF LIFE &
HEALTH INSURANCE GUARANTY
ASSOCIATIONS; CALIFORNIA LIFE AND
HEALTH INSURANCE GUARANTEE
ASSOCIATION; ERIC B. SIEGEL;
APOLLO ADVISORS LP; LEON D.
BLACK; CRAIG M. COGUT; JOHN J.
HANNAN; LION ADVISORS LP;
PEGASUS INSURANCE PARTNERS,
Intervenors,

GARAMENDI v. HENIN 7129
SIERRA NATIONAL INSURANCE 
HOLDINGS, INC.; GEORGIA LEE, as
Receiver for Sierra National
Insurance Holdings, Inc.,
Plaintiffs/counter-defendants-
Appellees,
v.
JEAN FRANCOIS HENIN,
Defendant/cross-claimant-
Appellant,
MAAF VIE SA, a corporation
organized under French law; No. 10-57009
MAAF ASSURANCES, a mutual
D.C. No.
insurer organized under French
law; FRANCOIS PINAULT; JEAN-  2:01-cv-01339-
CLAUDE SEYS; JEAN IRIGOIN; AHM-CW
ARTEMIS SA, OPINION
Defendants,
CREDIT LYONNAIS SA; ALTUS
FINANCE SA, a corporation
organized under French law; CDR
ENTERPRISES; CONSORTIUM DE
REALISATION SA, a corporation
organized under French Law,
Defendants/cross-defendants,
NEW CALIFORNIA LIFE HOLDINGS,
INC.; AURORA NATIONAL LIFE
ASSURANCE COMPANY,
Defendants/counter-claim-
Third-party Plaintiffs,

7130 GARAMENDI v. HENIN
HARRY W. LOW, as Conservator, 
Rehabilitator, and Liquidator of
Executive Life Insurance
Company, 
Counter-defendant/Third-party
Defendant.

Appeals from the United States District Court
for the Central District of California
A. Howard Matz, District Judge, Presiding
Argued and Submitted
May 8, 2012—Pasadena, California
Filed June 19, 2012
Before: Harry Pregerson, Susan P. Graber, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Graber
GARAMENDI v. HENIN 7133
COUNSEL
Patrick P. Salisbury, Salisbury & Ryan LLP, New York, New
York; and Brian A. Sun, Jones Day, Los Angeles, California,
for the defendant/cross-complainant-appellant.
David B. Salmons, Bingham McCutchen LLP, Washington,
D.C., for the plaintiff/counter-defendants-appellees.
Charles R. Rice and Arthur J. Shartsis, Shartsis Friese LLP,
San Francisco, California, for the amicus curiae.
OPINION
GRABER, Circuit Judge:
Defendant Jean-François Hénin served as an officer of a
French corporation that bought assets from an insolvent Cali-
fornia insurance company pursuant to a rehabilitation plan. It
later emerged that Hénin and others involved in the purchase
had misrepresented certain key facts, making their purchase
illegal under California law. In the ensuing litigation, Sierra
National Insurance Holdings, Inc., came to hold two default
judgments against Hénin in federal court. When Sierra tried
to enforce those judgments in Hénin’s home country of
France, a French court refused, citing certain gaps in the con-
tent of the judgments. Sierra returned to the district court that
had issued the default judgments and filed a motion under
Federal Rule of Civil Procedure 60, asking the court to correct
the judgments to add an explanation sufficient to permit
enforcement in France. The district court granted the motion
and entered two corrected judgments. Hénin appeals.
7134 GARAMENDI v. HENIN
We affirm. The operative, substantive terms of the cor-
rected judgments are identical to the terms of the original
judgments. Thus, the amendments only clarified the original
intent of the judgments, and the district court did not abuse its
discretion in making those changes under Rule 60(a). We also
hold that, by failing to challenge the original judgments,
Hénin waived his arguments as to setoff, release, and the
nature and amount of his liability. Finally, we conclude that
the district court did not abuse its discretion by refusing to
stay entry of the amended or corrected judgments.
FACTUAL AND PROCEDURAL HISTORY
This appeal arises from two consolidated district court
cases involving many different parties and claims. An aspect
of one of those cases was previously appealed to us, and our
earlier opinion provides a useful summary of the relevant
background facts:
This litigation arises from the 1991 insolvency
and subsequent rehabilitation of the Executive Life
Insurance Company (ELIC), following the largest
insurance failure in California history. Pursuant to a
judicially supervised rehabilitation plan, Insurance
Commissioner John Garamendi (the Commissioner)
oversaw competitive bidding for the assets of the
ELIC Estate, which included a large junk bond port-
folio. Altus S.A., a subsidiary of Credit Lyonnais
S.A., which is controlled by the French government,
and the MAAF Group, a consortium of French and
Swiss insurers, submitted the winning bid. Altus pur-
chased the junk bond portfolio for cash, and the
MAAF Group agreed to create a new company to
reinsure ELIC’s outstanding insurance policies.
Artemis S.A., a holding company . . . , subsequently
purchased a percentage of that junk bond portfolio
and the newly formed insurance company.
GARAMENDI v. HENIN 7135
The rehabilitation plan was a resounding success.
The Commissioner proclaimed the rehabilitation of
ELIC “by any objective standards a home run,”
resulting in a full recovery for 92 percent of the
insolvent insurer’s former policy holders. The reha-
bilitation was also a home run for Artemis, which
earned hundreds of millions of dollars in profit from
appreciation of the ELIC Estate’s junk bond portfo-
lio.
In 1999, however, years after the rehabilitation
plan had been implemented, the Commissioner
learned of a conspiracy between the members of the
Altus/MAAF Group to circumvent regulatory barri-
ers to foreign entities, like Altus, from issuing insur-
ance in California.
California v. Altus Fin. S.A., 540 F.3d 992, 995 (9th Cir.
2008) (footnotes omitted).
That conspiracy has generated voluminous litigation in sev-
eral related cases. See id. at 996 n.3. Specifically, the conspir-
acy involved false “assurances from Credit Lyonnais and
Altus that they did not in fact maintain secret control over the
MAAF Group.” Id. at 997. Their control over that company
violated California Insurance Code section 699.5, which pro-
hibited “entities controlled by foreign governments, like
Credit Lyonnais and Altus, from obtaining certificates of
authority from the Department of Insurance to conduct busi-
ness in California.” Id.The claims involved in this appeal are asserted against
Jean-François Hénin (1) by Sierra National Insurance Hold-
ings, Inc., and its receiver, Georgia Lee (collectively, “Sier-
ra”) and (2) by the Commissioner. Sierra and the
Commissioner brought separate actions in California state
court in 1999 and 2001. Those actions were removed to fed-
7136 GARAMENDI v. HENIN
eral court, where the district court consolidated the two cases
for all purposes.
The relevant complaints are substantially identical. Both
complaints state that Hénin “was at all relevant times the chief
executive officer of Altus.” Both complaints describe the
insolvency and rehabilitation of ELIC, along with the compet-
itive bidding process. Both complaints allege that Altus
employed a front for their control over ELIC’s insurance busi-
ness, via secret agreements referred to as “contrats de por-
tage.” Both complaints allege specific misrepresentations
relating to Altus’ relationship with the front. Both complaints
allege that Altus knew that California and federal law prohib-
ited it from owning or controlling, directly or indirectly, a life
insurance company. Both complaints allege that Hénin “ac-
tively participated” in the deceptions regarding “the extent to
which Altus and Credit Lyonnais owned and controlled” the
new holding companies that were created to take over ELIC’s
insurance business. Both complaints allege that Hénin “di-
rectly benefited from the acquisition of [ELIC]’s assets
through various means, including but not limited to dividends,
bonuses, salaries and ownership of companies that at some
time directly or indirectly owned or own the [ELIC] high-
yield bond portfolio and/or [ELIC] insurance business.”
Finally, both complaints allege joint and several liability
against all defendants.
For those alleged wrongs, Sierra sought compensatory
damages in excess of $2 billion, as well as exemplary dam-
ages and expenses. Sierra rested its damages calculation on a
claim that the conspiracy prevented Sierra’s bid from being
accepted, thereby depriving it of the $2 billion in profits that
it would have made had it purchased ELIC’s assets and insur-
ance business.
The Commissioner’s prayer for relief, by contrast,
requested not only compensatory and punitive damages, but
also restitution for unjust enrichment. The Commissioner
GARAMENDI v. HENIN 7137
appears to have calculated compensatory damages primarily
as lost profits. The Commissioner did not specify an amount
of damages, but he did seek an accounting to determine that
amount.
The Commissioner’s complaint and Sierra’s complaint also
asserted claims against several other defendants involved in
the conspiracy, primarily corporations. The Commissioner
and Sierra settled with some of those defendants. Others
(including Hénin) defaulted, leaving only two remaining
defendants, Artemis and one of its principals, François
Pinault. Altus Fin., 540 F.3d at 999. Sierra’s claims against
Artemis and Pinault were dismissed.
Thus, there were essentially three categories of defendants:
(1) those who settled prior to default; (2) those who defaulted;
and (3) those against whom the Commissioner went to trial
before a jury, but against whom Sierra had no surviving
claim. Along with certain other corporate co-defendants,
Hénin defaulted, placing him in the second category.
In March 2005, the district court granted Sierra’s request to
enter a default against Hénin for failure to appear at any court
proceeding for nearly a year, including a failure to appear
either at the pretrial conferences or at trial. In April 2005, the
district court granted the Commissioner’s request to enter a
default against Hénin for essentially the same reasons.
Because the entries of default established liability, but not the
amount of damages, the Commissioner and Sierra filed addi-
tional materials to support their claims for damages and to
obtain default judgment. See generally Fed. R. Civ. P.
55(b)(2)(B) (after entry of default, a court may hold hearings
to determine the amount of damages in order to effect a
default judgment).
The Commissioner filed an application for default judg-
ment wherein he quantified his damages against Hénin and
certain other defaulting defendants. Relying on a contempora-
7138 GARAMENDI v. HENIN
neously filed expert declaration and transcripts of a deposition
of Hénin, the Commissioner claimed and documented unjust
enrichment of approximately $10.8 million, including interest.
The Commissioner claimed and documented a separate
amount of unjust enrichment against the other defaulting
defendants, collectively. Although the Commissioner specifi-
cally requested joint and several liability as to certain defen-
dants, he did not list Hénin as a defendant who should be held
jointly and severally liable.
On November 9, 2005, the district court memorialized its
rulings on the Commissioner’s request for default judgment.
The district court found Hénin to be “individually liable” for
the exact amount calculated by the Commissioner’s expert,
approximately $10.8 million.1 The district court specifically
declined to award punitive damages.
On December 1, 2005, the district court entered a default
judgment against Hénin in favor of the Commissioner. In that
judgment, the district court reiterated the $10.8 million dam-
ages award and referred to the Commissioner’s expert report.
The judgment itself does not specify whether Hénin’s liability
is intended to be individual or joint and several, but he is the
only defendant named and discussed in the substantive section
of that judgment.2
Sierra similarly filed a motion for entry of default judgment
against Hénin and the other defaulting defendants. Sierra
requested compensatory damages for lost profits in the
amount of approximately $3.3 billion, subject to offset for set-
tlements with other defendants, and it submitted expert
1
The district court made a separate and different finding of restitution-
ary damages against the other defaulting defendants, expressly stating that
those defendants were jointly and severally liable among themselves.
2
On that same day, the district court entered a separate default judgment
against the other defaulting defendants, expressly stating that their liability
was joint and several.
GARAMENDI v. HENIN 7139
reports to support that figure. Sierra’s damages motion does
not specify or request joint and several liability.
On December 7, 2005, the district court entered an order on
Sierra’s motion. In that order, the district court concluded
that, although Sierra had failed to establish a right to recover
lost profits, it was entitled to compensatory damages consist-
ing of costs and attorney fees. The order allowed punitive
damages against the other defaulting defendants but not
against Hénin. The district court ordered that, “[a]s for M.
Hénin, the judgment shall be the same as it was for the Com-
missioner.”
On December 21, 2005, the district court entered a default
judgment against Hénin for approximately $10.8 million in
favor of Sierra. As with the judgment in favor of the Commis-
sioner, the judgment itself does not specify whether Hénin’s
liability is intended to be individual or joint and several, but
he is the only defendant named and discussed in that judgment.3
Hénin did not appeal the default judgments when they
became final in 2005. The Commissioner then assigned his
judgment to Sierra. Later, Hénin entered an Alford plea4 with
regard to the criminal indictment against him, arising from the
transactions discussed above.
In February 2007, Sierra commenced an action to enforce
the judgments in France. The French court filed its decision
in December 2009, refusing enforcement because the judg-
3
Less than a week later, the district court entered a separate default
judgment for Sierra against the other defaulting defendants, expressly stat-
ing that their liability was joint and several. After the court issued those
default judgments, the other defaulting defendants settled with both Sierra
and the Commissioner, receiving releases in return.
4
See Rhoades v. Henry, 598 F.3d 511, 513 n.1 (9th Cir. 2010) (noting
that “a plea may be accepted for which there is a factual basis even though
the defendant asserts his innocence” (citing North Carolina v. Alford, 400
U.S. 25 (1970))).
7140 GARAMENDI v. HENIN
ments lacked sufficient explanation. In particular, the French
court noted that “many other defendants were indistinctly
blamed for the same facts, so that it is impossible to know the
causes of the sentences pronounced.” The French court also
noted that the judgments did not clearly allow it to rule out the
possibility that some of the damages were punitive in nature,
in contravention of French public policy.
In June 2010, Sierra filed a motion asking the district court
to correct or clarify its judgments under Rule 60(a) or, alter-
natively, under Rule 60(b)(6) so as to “supply the details the
French court found wanting and to make it clear that the Judg-
ments do not include a punitive element.”
Over Hénin’s opposition, the district court granted the
motion under Rule 60(a), issuing two “corrected” judgments.
The corrected judgments each state that they “change[ ] no
substantive provision” of the original judgments, nor do they
“reflect any change in the reasoning” that led the district court
to enter the original judgments. The corrected judgments state
that they “incorporate[ ] only facts and evidence before the
[district court] at the time” of the original judgments, and they
“suppl[y] the additional information to assure . . . enforcement
in France.”
The corrected judgments are very similar to one another.
Each consists primarily of two parts—a first part establishing
the basis of liability and a second part establishing the reasons
for the amount of the damages awards. The liability portion
is largely identical in both corrected judgments, reciting facts
relating to the conspiracy and stating that “Hénin, at all rele-
vant times the Chief Executive Officer of Altus, was one of
the Defendants who committed these wrongful acts which
enabled them to acquire ELIC.” The corrected judgment per-
taining to Sierra further states, “Sierra’s Complaint contained
allegations specifying false statements made by Defendants
and by Henin individually to the Commissioner and to other
GARAMENDI v. HENIN 7141
regulatory agencies.” The corrected judgment pertaining to
the Commissioner adds:
The Complaint and the evidence specified fraudulent
and misleading documents filed by Defendants and
Hénin individually to the Commissioner and to other
regulatory agencies. The Complaint and the evidence
also established that Hénin “directly benefited from
the acquisition of ELIC’s assets through various
means, including but not limited to dividends,
bonuses, salaries and ownership of companies that at
some time directly or indirectly owned or owns the
ELIC high-yield bond portfolio and/or ELIC insur-
ance business.”
The damages portion is different in each corrected judg-
ment. In the corrected judgment pertaining to the Commis-
sioner, the district court reiterated the amounts calculated by
the Commissioner’s expert and referred to that expert’s sub-
missions. The corrected judgment adds that Hénin had an
opportunity to rebut the expert’s submissions but did not do
so. The corrected judgment explains that no punitive damages
were awarded, citing the November 9, 2005 ruling on the
Commissioner’s request for default judgment. The corrected
judgment further explains that the damages are for restitution
and unjust enrichment, that the damages are independent of
the award to Sierra, and that the judgment was not intended
to be subject to offset for any amount recovered from other
defendants.
In the corrected judgment pertaining to Sierra, the district
court also reiterated the amount of damages announced in the
original judgment. The corrected judgment states that Sierra
was prepared to submit expert testimony fixing its damages at
approximately $3.3 billion. The corrected judgment notes that
Hénin had an opportunity to rebut the expert’s submissions
but did not do so. The corrected judgment notes that the dis-
trict court had determined that Sierra was entitled to compen-
7142 GARAMENDI v. HENIN
satory damages but not lost profits, citing the December 7,
2005 order resolving Sierra’s motion for default judgment.
The corrected judgment further explains that the district court
set the amount of damages in recognition that Hénin is an
individual and did not benefit to the same extent as the other
defendants (primarily corporations), that the damages award
is independent of the award to the Commissioner, and that the
$10.8 million figure represented the portion of Sierra’s losses
that could be attributed to Hénin personally, as conservatively
estimated by his own personal gain. The corrected judgment
notes that, although the district court awarded punitive dam-
ages to Sierra, those damages were limited to the other
defaulting defendants; the corrected judgment cites the
December 7, 2005 order in support of that statement. Finally,
the corrected judgment notes that the damages award was not
intended to be subject to offset for any amount recovered
from other defendants.
Both judgments contain two pieces of new information that
were not available at the time of default: (1) they note Hénin’s
post-default Alford plea in his criminal case; and (2) they
quote from the hearing on the Rule 60 motion, where the dis-
trict court “stated that Hénin was ‘one of the key architects of
this fraud,’ and that he ‘is still fighting to protect what the
record shows were some ill-gotten and very substantial profits
and gains that he derived from what he did.’ ”
Hénin timely appeals the district court’s correction of its
judgments under Rule 60(a).
STANDARD OF REVIEW
“The standard of review for [a] Rule 60(a) claim is abuse
of discretion.” Blanton v. Anzalone, 813 F.2d 1574, 1577 (9th
Cir. 1987). “A district court abuses its discretion when it
makes an error of law . . . .” United States v. 4.85 Acres of
Land, 546 F.3d 613, 617 (9th Cir. 2008) (internal quotation
marks omitted).
GARAMENDI v. HENIN 7143
DISCUSSION
A. Federal Rule of Civil Procedure Rule 60(a)
[1] Federal Rule of Civil Procedure 60(a), titled “Correc-
tions Based on Clerical Mistakes; Oversights and Omissions,”
states:
The court may correct a clerical mistake or a mis-
take 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.
In the past, we have explained the role of Rule 60(a) by con-
trasting it with Rule 59(e),5 the rule for altering or amending
a judgment:
The history of Rule 59(e) shows that “alter or
amend” means a substantive change of mind by the
court. In contrast, a court’s failure to memorialize
part of its decision is a clerical error. Power to cor-
rect clerical errors of omission derives from Rule 60,
not Rule 59(e).
Miller v. Transamerican Press, Inc., 709 F.2d 524, 527 (9th
Cir. 1983) (emphasis added) (citations and paragraph break
omitted). We have consistently interpreted Rule 60(a) to
allow a district court to correct omissions so long as those
corrections are limited to clarification of matters intended to
be implied or subsumed by the original judgment, rather than
5
Federal Rule of Civil Procedure 59(e) simply states: “A motion to alter
or amend a judgment must be filed no later than 28 days after the entry
of the judgment.”
7144 GARAMENDI v. HENIN
a change of course or a modification to the intended legal
effect of a judgment.
For example, in Miller, we upheld the district court’s modi-
fication of a previously issued judgment denying a contempt
motion; the modification clarified that the court also denied
the motion’s request for sanctions. Id. at 526. We observed
that, under Rule 60(a), a district court may “conform the writ-
ten judgment to the partly tacit intention of its oral ruling.” Id.
at 527 (emphasis added).
[2] Thus, Rule 60(a)’s touchstone is fidelity to the intent
behind the original judgment. In Blanton, we wrote:
In deciding whether a trial court may alter a judg-
ment pursuant to Fed. R. Civ. P. 60(a), our circuit
focuses on what the court originally intended to do.
A judge may invoke Rule 60(a) in order to make a
judgment reflect the actual intentions of the court,
plus the necessary implications.
813 F.2d at 1577 (second emphasis added) (citations omitted);
see also Hasbrouck v. Texaco, Inc., 879 F.2d 632, 636 (9th
Cir. 1989) (upholding district court’s correction, under Rule
60(a) of a judgment where it had “inadvertently failed to
memorialize part of its decision regarding [costs and inter-
est]”).
Consistent with those precedents, a court may use Rule
60(a) to facilitate enforcement of its judgments. According to
a leading treatise on the Federal Rules of Civil Procedure:
Rule 60(a) is not limited to situations in which a
judgment clearly misrepresents what the court meant
to state. A district court may also invoke Rule 60(a)
to resolve an ambiguity in its original order to more
clearly reflect contemporaneous intent and ensure
that the court’s purpose is fully implemented.
GARAMENDI v. HENIN 7145
....
If a judgment, as worded, is too vague to permit
enforcement, the court may reword the judgment as
necessary to reflect its original intent.
12 James W. Moore, Moore’s Federal Practice § 60.11[1][c]
(2011) (internal quotation marks and footnote omitted). In
support of that proposition, Moore’s cites our opinion in Robi
v. Five Platters, Inc., 918 F.2d 1439 (9th Cir. 1990). In Robi,
we expanded on Blanton’s rule that “it [i]s not an abuse of
discretion for the district court to clarify its original intention
. . . by amending the judgment pursuant to Rule 60(a).” 918
F.2d at 1445-46. The uncorrected judgment in Robi “ordered,
among other things, that [a party’s trademark] be canceled,”
but it “failed to identify the particular trademark to be can-
celed or to include any trademark registration numbers or
dates of issuance.” Id. at 1444. The United States Patent and
Trademark Office was unable to identify the trademarks to be
cancelled, the district court amended its judgment under Rule
60(a) to identify the trademarks with more particularity, and
we affirmed. Id. at 1444-45.
The Second Circuit has taken a similarly broad view of
Rule 60(a), allowing modification of a judgment for the pur-
poses of enforcement in Robert Lewis Rosen Assocs., Ltd. v.
Webb, 473 F.3d 498 (2d Cir. 2007). There, the district court’s
original order had confirmed an arbitration award that ordered
payment of a sum certain, plus additional payments calculated
as a fixed percentage of the losing party’s future receipts from
certain contracts. Id. at 500-01. The original court order con-
firmed the arbitration award and listed the sum certain, but
“made no explicit mention of any sums due” on account of
future receipts. Id. at 502. The prevailing party domesticated
that judgment in the losing party’s home state and success-
fully enforced it to the extent of the sum certain. Id. The los-
ing party obtained a judgment of satisfaction in his home state
and then sought to discharge the original judgment at the issu-
7146 GARAMENDI v. HENIN
ing court, but that court refused, issuing a supplemental judg-
ment accounting for the sums that previously had been
“contingent upon future [contracts] that had yet to mature.”
Id. at 506 n.14. The Second Circuit held that “Rule 60(a) was
an appropriate vehicle to correct the judgment . . . because
there was no dispute over the dollar amount awarded by . . .
the supplemental judgment.” Id. at 505.
Other circuits generally agree that Rule 60(a) relief is
proper to the extent that it does not deviate from the original
intent of the court. The Federal Circuit has said: “Courts
enjoy broad discretion to correct clerical errors in previously
issued orders in order to conform the record to the intentions
of the court and the parties.” Agro Dutch Indus. Ltd. v. United
States, 589 F.3d 1187, 1192 (Fed. Cir. 2009) (emphasis
added) (citing Robert Lewis Rosen Assocs., 473 F.3d at 504-
05 & n.11; Robi, 918 F.2d at 1445-46). In that case, the Fed-
eral Circuit relied, in part, on Rule 60(a) to approve the trial
court’s correction of the effective date of an injunction
because, although the date in the original injunction had been
chosen deliberately, the intent of the injunction would have
been better served by the corrected date. Id. at 1192-93.
Similarly, the District of Columbia Circuit allowed a court
to correct an omission under Rule 60 because the correction
“constru[ed] the judgment, consistently with its language, in
accordance with the contemporaneous intent of the court as
well as the understanding of the parties.” Jackson v. Jackson,
276 F.2d 501, 503 (D.C. Cir. 1960) (emphasis added). The
court in that case approved a district court’s use of Rule 606
6
The court in Jackson did not cite subsection (a) in particular, but the
cited portion of the opinion clearly relies on Rule 60(a) or some analogous
predecessor. Compare Jackson, 276 F.2d at 503 (quoting Rule 60 as pro-
viding that “errors therein (in judgments) arising from oversight or omis-
sion may be corrected by the court at any time”), with Fed. R. Civ. P.
60(a) (“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.” (emphasis added)).
GARAMENDI v. HENIN 7147
to correct an original order requiring a husband to provide
maintenance payments to his wife and children. The correc-
tion limited those payments to periods when the wife and chil-
dren were in a particular area, consistent with the original
intent of the court. Id. at 502-03.7
[3] In sum, then, Rule 60(a) allows a court to clarify a
judgment in order to correct a “failure to memorialize part of
its decision,” to reflect the “necessary implications” of the
original order, to “ensure that the court’s purpose is fully
implemented,” or to “permit enforcement.” We now hold that
Rule 60(a) allows for clarification and explanation, consistent
with the intent of the original judgment, even in the absence
of ambiguity, if necessary for enforcement. We emphasize
that this broad rule does not allow a court to make corrections
that, under the guise of mere clarification, “reflect a new and
subsequent intent because it perceives its original judgment to
be incorrect. Rather, the interpretation must reflect the con-
temporaneous intent of the district court as evidenced by the
record.” Burton v. Johnson, 975 F.2d 690, 694 (10th Cir.
1992) (citation omitted); see also 12 Moore’s Federal Prac-
tice § 60.11[2][b].
7
See also Rivera v. PNS Stores, Inc., 647 F.3d 188, 194-95 (5th Cir.
2011) (“Rule 60(a) authorizes a district court to modify a judgment so that
the judgment reflects the ‘ “necessary implications of the court’s decision
. . . .” ’ ” (emphasis added) (quoting United States v. Kellogg (In re W.
Tex. Mktg. Corp.), 12 F.3d 497, 504 (5th Cir. 1994) (quoting Robi, 918
F.2d at 1445))), cert. denied, 132 S. Ct. 174 (2012); Pruzinsky v. Gianetti
(In re Walter), 282 F.3d 434, 441 (6th Cir. 2002) (“[A] court properly acts
under Rule 60(a) when it is necessary to correct mistakes or oversights
that cause the judgment to fail to reflect what was intended at the time of
trial.” (emphasis added) (internal quotation marks omitted)); Weeks v.
Jones, 100 F.3d 124, 128 (11th Cir. 1996) (per curiam) (“While the district
court may correct clerical errors to reflect what was intended at the time
of ruling, errors that affect substantial rights of the parties are beyond the
scope of rule 60(a).” (emphasis added) (internal quotation marks and alter-
ations omitted)); Burton v. Johnson, 975 F.2d 690, 694 (10th Cir. 1992)
(“[A] district court may also invoke Rule 60(a) to resolve an ambiguity in
its original order to more clearly reflect its contemporaneous intent and
ensure that the court’s purpose is fully implemented.” (emphasis added)).
7148 GARAMENDI v. HENIN
[4] Thus, in assessing whether the amendments in this case
were permissible under Rule 60(a), we must turn to the record
and ensure that the clarifications did not change the operative,
substantive terms of the original judgment. We are convinced
that the district court’s corrected judgments did not deviate
from the intent of its original judgments, so the court acted
within its Rule 60(a) authority. The operative, substantive
terms of the corrected judgments are identical to those in the
original judgments. The district court made clear in its cor-
rected judgments that those judgments “change[ ] no substan-
tive provision” of the original judgments, nor do they “reflect
any change in the reasoning” that led the district court to enter
those judgments. Moreover, those judgments “incorporate[ ]
only facts and evidence before the [district court] at the time”
of the original judgments. The record supports these state-
ments and contains nothing suggesting that the corrected
judgments are in any way inconsistent with the original intent
of the court.
As to the liability portions of the corrected judgments, the
relevant facts can be found in Sierra’s and the Commission-
er’s complaints. Those facts were all implicitly part of the
original default judgments. See Geddes v. United Fin. Grp.,
559 F.2d 557, 560 (9th Cir. 1977) (per curiam) (“The general
rule of law is that upon default the factual allegations of the
complaint, except those relating to the amount of damages,
will be taken as true.”). In particular, both complaints allege
that Hénin (along with other individual defendants) “w[as]
aware of the existence of the secret agreements” and that he
“actively participated in the plan” to deceive the Commis-
sioner. Both complaints also allege that Hénin “directly bene-
fited from the acquisition of [ELIC]’s assets through various
means, including but not limited to dividends, bonuses, sala-
ries and ownership of companies that at some time directly or
indirectly owned or own the [ELIC] high-yield bond portfolio
and/or [ELIC] insurance business.”
[5] The references to Hénin’s criminal plea and his contin-
ued evasions are the only new material in the liability portions
GARAMENDI v. HENIN 7149
of the corrected judgments. The reference to the criminal plea
did not affect the reasoning behind the judgments; rather, this
informational item was relegated to a footnote, seemingly
intended just to aid the French court in understanding the sig-
nificance of an Alford plea. Similarly, the reference to
Hénin’s evasions was informational only. The placement of
these facts in the corrected judgments is outside the section
substantiating the court’s original holdings. Nothing in the
corrected judgments’ reasoning suggests that the district court
relied on these additional facts in issuing default judgments
against Hénin. The mere mention of outside-the-record infor-
mation does not require reversal when, as here, those facts do
not affect the reasoning of the original or corrected judg-
ments.
Similarly, the damages portions of the corrected judgments
are supported by the original default judgments and by the
district court’s contemporaneous rulings resolving the two
motions for default judgment. Neither corrected judgment
changes the amount of damages, and both corrected judg-
ments reiterate the same theory of damages identified in the
original rulings—compensation in Sierra’s case and restitu-
tion in the Commissioner’s case. It is clear from the original
rulings that none of the damages attributed to Hénin was puni-
tive in nature, so the corrected judgments’ clarifications do
not modify the original judgments in that regard. Further, it is
clear that the district court always intended to assess damages
against Hénin on an individual, rather than a joint, basis, as
confirmed by a side-by-side comparison of (1) the original
default judgments against Hénin and (2) the separate judg-
ments against the other defaulting defendants. The latter
clearly specify joint and several liability among those named
in the judgments, but the former do not; indeed, as for the
Commissioner, the district court’s ruling on the motion for
default judgment specifically calls for individual liability. The
original judgment for Sierra does not specify individual liabil-
ity, but Hénin is the only defendant named and discussed in
that judgment, so such specification was unnecessary.
7150 GARAMENDI v. HENIN
[6] The only new information in the damages portions of
the corrected judgments is the district court’s further explana-
tion of how it arrived at the compensatory damages figure in
favor of Sierra. But nothing in the record contradicts that
explanation, and the relevant filings tend to support the dis-
trict court’s explanation of the reasoning behind its original
judgment.
[7] Thus, the corrected judgments amount to nothing more
than explanations and clarifications of the district court’s orig-
inal intent, as evidenced by the contemporaneous record. In
fact, it is clear from the record that the district court always
intended and understood that enforcement would occur in
France, so the challenged amendments serve to identify the
“necessary implications” of the original orders, to “ensure that
the court’s purpose is fully implemented,” and to “permit
enforcement.” Therefore, they were authorized under Rule
60(a).
B. Waiver of the right to challenge setoff, release, and the
nature and amount of liability
[8] Because the corrected judgments contain the same sub-
stantive provisions as the original judgments, Hénin had to
challenge their content at the time of the original judgments
or not at all. Any attempt to appeal the original default judg-
ments would now be untimely: “If the district court properly
acted under Rule 60(a), then the correction did not start a new
appeal time running.” Harman v. Harper, 7 F.3d 1455, 1457
(9th Cir. 1993) (citing cases from the First, Second, Fifth, and
Eighth Circuits); see also Rivera v. PNS Stores, Inc., 647 F.3d
188, 201 n.55 (5th Cir. 2011) (“A district court’s entry of a
corrected judgment under Rule 60(a) is itself an appealable
order, but the scope of the appeal is limited to the court’s ‘dis-
position of the Rule 60(a) motion and [does] not bring up for
review the underlying judgment.’ ” (alteration in original)
(quoting 11 Charles Alan Wright et al., Federal Practice and
Procedure § 2871 (2d ed. 2011)).
GARAMENDI v. HENIN 7151
[9] Having failed to challenge the original default judg-
ments, Hénin now argues that the damages awarded in the
default judgments were incorrect or not supported by the evi-
dence, and he argues that there was an insufficient basis for
holding him individually liable. Those arguments are not
properly before us; the only matter that Hénin has appealed in
a timely manner is whether the district court was authorized,
under Rule 60(a), to correct its judgments as it did.
[10] Hénin also argues that, as long as the district court
was correcting the default judgments, it should have made
modifications to reflect his right to a setoff or release on
account of the settlements with Hénin’s co-defendants. To the
extent that those arguments do not seek review of the original
default judgments, they still fail because his liability is indi-
vidual, not joint, and he has lost the opportunity to challenge
that result. Hénin’s setoff arguments fail because they rest on
a California statute that pertains only to damages arising from
joint tort liability.8 See Cal. Civ. Proc. Code § 877 (organized
8
Hénin argues that, under California Civil Procedure Code section 877,
it is the complaint, rather than the judgment, that controls. In support of
that contention, he relies on McComber v. Wells, 85 Cal. Rptr. 2d 376 (Ct.
App. 1999), and Vesey v. United States, 626 F.2d 627 (9th Cir. 1980). His
reliance is misplaced. McComber and Vesey involved the applicability of
section 877 in cases in which a plaintiff had alleged joint liability in a
complaint, a portion of the jointly liable defendants settled before trial,
and then a jury absolved the settling defendants of all liability and
assessed damages against the remaining defendants for the plaintiff’s
entire loss. McComber, 85 Cal. Rptr. 2d at 378-79; Vesey 626 F.2d at 632-
33. In those cases, it was the complaint that controlled, meaning that the
non-settling (and liable) defendants could claim setoff for the amounts
paid by the settling (and non-liable) defendants even though the two
groups of defendants had not been judged to be jointly liable. McComber,
85 Cal. Rptr. 2d at 378 (“It is irrelevant the jury ultimately found the set-
tling defendants were not negligent.”); Vesey, 626 F.2d at 632-33 (“Thus
[the settling defendants’] subsequent exoneration of negligence in the lia-
bility trial is of no legal significance in the present case.”). That result
makes good sense because it serves the “fundamental goal[ ]” of § 877—
preventing double recovery. McComber, 85 Cal. Rptr. 2d at 378; Vesey
626 F.2d at 633. But those cases have no application to this case, where
the district court apportioned damages individually to Hénin rather than
making him liable, jointly or otherwise, for the total claimed loss.
7152 GARAMENDI v. HENIN
under a chapter titled “Releases from and Contribution
Among Joint Tortfeasors”); see also Hoch v. Allied-Signal,
Inc., 29 Cal. Rptr. 2d 615, 622 (Ct. App. 1994) (“[T]he rele-
vant language of section 877(a) . . . presupposes the existence
of multiple defendants jointly liable for the same damages.”);
Vesey, 626 F.2d at 633 (“[T]he fundamental purpose of § 877
of the California Code is to preclude a double recovery arising
out of the same wrong.”).
[11] Hénin’s argument that he is entitled to a release fails
for the same reason. The parties dispute whether federal or
state rules apply but, in either case, that rule is limited to joint
tortfeasors. See Avery v. United States, 829 F.2d 817, 818-19
(9th Cir. 1987) (discussing “the rule that a release of one tort-
feasor releases all other joint tortfeasors absent an express res-
ervation of rights”); Bee v. Cooper, 17 P.2d 740, 742 (Cal.
1932) (“It is well settled that a release of one of two or more
joint tort-feasors operates as a release of all.”).
C. No abuse of discretion in refusing to stay entry of the
amended or corrected judgments
Finally, Hénin argues that entry of the corrected judgments
should be stayed until completion of the new damages trial
between the Commissioner and Artemis, to be conducted pur-
suant to our remand in the related case, California v. Altus
Fin. S.A., 540 F.3d 992 (9th Cir. 2008). We are not persuaded.
In Neilson v. Chang (In re First T.D. & Investment, Inc.),
253 F.3d 520, 532 (9th Cir. 2001), we recognized the rule that
“where a complaint alleges that defendants are jointly liable
and one of them defaults, judgment should not be entered
against the defaulting defendant until the matter has been
adjudicated with regard to all defendants.” We then extended
the rule beyond jointly liable co-defendants to those that are
“similarly situated,” such that the case against each rests on
the same legal theory; it would be “incongruous and unfair”
to allow a plaintiff to prevail against defaulting defendants on
GARAMENDI v. HENIN 7153
a legal theory rejected by a court with regard to an answering
defendant “in the same action.” Id. Neilson held that the trial
court’s entry of such inconsistent judgments amounted to an
abuse of discretion. Id. at 532-33.
Hénin correctly observes that similar theories underlie both
his liability and that of Artemis in the remanded case. But
Neilson is procedurally distinguishable because the defaulting
defendants in that case pursued a direct appeal of their final
judgments. Id. at 525 (“Defaulting Defendants appealed the
entry of the final default judgments to the district court
. . . .”).9 Moreover, in the cited cases, the entry of default
judgment was inconsistent with or preceded the findings as to
the non-defaulting defendants at the time the cases were origi-
nally decided by the district courts. See Neilson, 253 F.3d at
524-25, 532; Gulf Coast, 740 F.2d at 1502, 1505-06; Frow,
82 U.S. at 553. Here, by contrast, the district court followed
the proper procedure. After Hénin defaulted, the court waited
until completion of trial against the non-defaulting defendants
before fixing damages and entering default judgments against
Hénin. When the district court entered default judgments,
those judgments were fully consistent with the judgments
against the non-defaulting defendants. Hénin failed to appeal
or otherwise timely contest those default judgments. Now,
9
The same can be said for another case on which Hénin relies. See Frow
v. De La Vega, 82 U.S. 552, 553 (1872) (“From this decree the present
appeal was taken.”).
The Eleventh Circuit, by contrast, has applied the “similarly situated”
analysis on appeal of a Rule 60(b) motion to set aside default judgment.
Gulf Coast Fans, Inc. v. Midwest Elecs. Imps., Inc., 740 F.2d 1499, 1507,
1512 (11th Cir. 1984). But in that case, the defaulting defendant had pur-
sued its remedies promptly. It sought relief under Rule 60(b) less than two
weeks after entry of default. Id. at 1506-07. Furthermore, the Eleventh
Circuit’s decision merely allowed reconsideration of the default, and it
clearly allowed the possibility of a renewed finding of default, notwith-
standing the potential incongruity of verdicts. Id. at 1512 (“[The trial
court] shall also consider the motion . . . to introduce evidence as to dam-
ages if it ultimately finds a default.”).
7154 GARAMENDI v. HENIN
years later, after the judgment against the non-defaulting
defendants has been vacated in an appeal that Hénin failed to
join, he argues that the default judgments against him should
be stayed pending completion of the new damages trial
against the non-defaulting defendants.
[12] Hénin’s argument is insufficient to establish an abuse
of discretion. He defaulted, and the amount of damages
against him were fixed under proper procedures years ago; the
judgments fixing those damages need not be reopened now on
account of a successful appeal of another judgment by some-
one else. The district court did not abuse its discretion in fail-
ing to stay entry of the corrected default judgments.
AFFIRMED.