North Carolina Business Litigation Report
Fourth Circuit Gives a Latin Lesson On Nunc Pro Tunc Orders
You've undoubtedly had a Judge announce that she was entering an order "nunc pro tunc." In case you didn't have your Latin-English dictionary with you at the time, that literally means "now for then."
A nunc pro tunc order is a way for a Judge to correct an order previously made which was improperly entered or expressed.
The Fourth elucidated the boundaries of "this rarely used device" last week in Glynne v. Wilmed Healthcare. Op. 6. It reversed a nunc pro tunc ruling by Judge Malcolm Howard of the Eastern District of North Carolina.
The purpose of the reversed order was to extend the statute of limitations for the Plaintiff to refile state law claims. The limitations period as to those claims had expired during the pendency of a federal court lawsuit.
A federal statute (28 U.S.C. sec 1367(d)) provides that the limitations period on any supplemental claim "shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period." The North Carolina Court of Appeals ruled in Huang v. Ziko, 511 S.E.2d 305, 308 (N.C. App. 1999) that North Carolina has no applicable "grace period" longer than the 30 days meted out by Section 1367(d).
Plaintiff let the 30 days expire and missed refiling her state law claims by six days. She asked Judge Howard to revise his Order dismissing her state law claims, and to give her 40 days to refile her claims in state court. Judge Howard complied, entering an Order nunc pro tunc giving the Plaintiff 60 days from the date of the original Order to refile her claims.
If you are thinking that Judge Howard didn't have the power to extend the 30 day grace period of Section 1367(d), the Fourth Circuit didn't weigh in on that question. It said instead that he had "unquestionably erred" by entering the Amended Order, and held:
Because the doctrine of nunc pro tunc may only be employed to correct mistakes or omissions in the record sothat the record properly reflects the events that actually took place, the district court’s attempt to modify its earlier order for the first time under the guise of nunc pro tunc was error.
The use of nunc pro tunc orders in driving under the influence cases in Wake County has led to indictments and the resignation of a district court judge,
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