CA1: FRCP 59 v. 60 and joint and severally liable defendants

B&M Donuts, Inc. v. Honey Dew Associates, No. 06-2100 (6/13/07).  This case seems pretty simple.  Like many business disputes the plaintiff commenced their action against more than two defendants.  Problem is that they messed up on the jury instructions (so the First finds), and the jury returned a verdict in favor of one of them, but awarded only a small amount of damages, with a verdict form that listed only one of the defendants.  More than ten days later the plaintiffs moved to amend the judgment to made another defendant jointly and severally liable.  Sure, they asked under FRCP 60(a) (error), the defendants say it should have been made under 59(e) (amendment of judgment).  The court looks at what the plaintiffs want, and quotes Wright and Miller by saying “"the intention to include a particular provision in the judgment was clear, but the judge neglected to include the provision." 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure, § 2854 (2d ed. 1995).  So, it was properly brought under 60(a).  The problem is the record doesn’t show how the judge had such an intention, and it seems that the plaintiffs said things that could be construed to have asked the judge to do precisely what he did.

Nevertheless, the contract between the parties still provided for attorneys fees.  The judge added on fees that were far less then requested, because the plaintiffs did not get as much as they wanted.  Without much discussion, that is affirmed.  These awards of small amounts of fees are started to disturb me, but I will save that for another day.