Rose Glynne v. WilMed Healthcare ( 2012 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ROSE L. GLYNNE, MD, 
Plaintiff-Appellee,
v.
WILMED HEALTHCARE, d/b/a Wilson
Medical Center,
Defendant-Appellant,
and
WILSON OB / GYN, PA; RICHARD E.  No. 11-1859
HUDSON, Jointly and Severally;
DANIEL P. MICHALAK, MD; ARTHUR
H. HANSON; EDWARD S. BREZINA,
MD; DENNIS S. KUK, MD; SUZANNE
R. STARKEY, MD; WENDELL J. ZEE,
MD; JAMES R. BUSCH, MD;
JONATHAN G. DEWALD, MD,
Defendants.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Malcolm J. Howard, Senior District Judge.
(5:08-cv-00602-H)
Argued: September 20, 2012
Decided: October 18, 2012
Before MOTZ, AGEE, and THACKER, Circuit Judges.
2 GLYNNE v. WILMED HEALTHCARE
Vacated by published opinion. Judge Thacker wrote the opin-
ion, in which Judge Motz and Judge Agee joined.
COUNSEL
ARGUED: John Edward Pueschel, WOMBLE CARLYLE
SANDRIDGE & RICE, PLLC, Winston-Salem, North Caro-
lina, for Appellant. C. William Hinnant, Jr., MEDICOLEGAL
CONSULTANTS, LLC, Anderson, South Carolina, for
Appellee. ON BRIEF: James R. Morgan, Jr., WOMBLE
CARLYLE SANDRIDGE & RICE, PLLC, Winston-Salem,
North Carolina, for Appellant. Elizabeth McKinney, MCKIN-
NEY LAW FIRM, PLLC, Wilson, North Carolina, for Appel-
lee.
OPINION
THACKER, Circuit Judge:
Wilson Medical Center ("WMC") appeals an amended
order and judgment entered August 8, 2011, nunc pro tunc
March 1, 2011. WMC argues that the district court improperly
used the nunc pro tunc device to extend the period during
which appellee Rose Glynne, M.D., could refile her dismissed
state law claims in state court. Because the district court’s
purported nunc pro tunc entry supplied an order that in fact
was not previously made, we must vacate the amended order
and judgment.
I.
Dr. Glynne is a board-certified obstetrician/gynecologist
who held privileges at WMC from October 1997 to Novem-
ber 2007 to practice obstetrics and gynecological surgery. On
December 10, 2008, Glynne filed the complaint in the district
GLYNNE v. WILMED HEALTHCARE 3
court against WMC; her former medical practice, Wilson
Ob/Gyn, PA; the president of WMC; and eight individual
physicians, alleging various violations of federal and North
Carolina law. Among other things, Glynne claimed that the
defendants used the medical peer review process in bad faith
in order to force her to leave the hospital. During discovery,
and prior to the filing of motions for summary judgment,
Glynne voluntarily dismissed with prejudice all her federal
claims and all defendants except WMC in a series of separate
stipulations of dismissal. As a result, only her state law claims
remained. For these state law claims, the limitations periods
expired while Glynne was litigating her suit in the district
court.
Because the federal claims had been dismissed and diver-
sity jurisdiction was lacking, the district court declined to
exercise supplemental jurisdiction over the remaining state
law claims under 28 U.S.C. § 1367(c). On March 1, 2011, the
district court entered an order (the "March Order") and
accompanying judgment that dismissed the federal suit. J.A.
81, 84. The March Order concluded: "Therefore, this matter
is DISMISSED without prejudice to allow plaintiff the oppor-
tunity to refile her state-law claims in the Superior Court of
North Carolina, if desired." Id. at 82-83. Glynne did not
appeal the March Order.
Even though the limitations periods for Glynne’s state law
claims had expired while she maintained her suit in federal
court, 28 U.S.C. § 1367(d) provides that the period of limita-
tion for any supplemental claim "shall be tolled while the
claim is pending and for a period of 30 days after it is dis-
missed unless State law provides for a longer tolling period."
The North Carolina Court of Appeals has indicated that the
state has no applicable tolling period longer than the 30-day
period set out in § 1367(d). See Huang v. Ziko, 511 S.E.2d
305, 308 (N.C. App. 1999) ("Because North Carolina has no
applicable ‘grace period’ longer than the thirty-day period set
out in 28 U.S.C.A. § 1367, the statute of limitations was
4 GLYNNE v. WILMED HEALTHCARE
tolled while the federal action was pending and for thirty days
thereafter.").1 Accordingly, under the state appellate court’s
interpretation of § 1367(d), Glynne’s claims had to be filed in
state court no later than 30 days following entry of the district
court order on March 1, 2011. However, she did not file her
state court complaint until April 7, 2011.
On May 13, 2011, WMC moved to dismiss Glynne’s state
court action on the grounds that the statutes of limitation had
expired on all of Glynne’s claims during the pendency of the
federal suit, and that Glynne had failed to file her dismissed
state law claims within the 30-day tolling provision provided
by § 1367(d).2
On May 26, 2011, Glynne filed a motion in the district
court styled as a "Motion for Extension of Time to File Notice
of Appeal or Alternatively for Relief by Way of Amend-
ing/Withdrawing the Court’s Order of March 1, 2011." J.A.
86. In this motion, Glynne asked the district court, for the first
time, to amend the March Order to provide 40 days in which
to file in state court or, alternatively, to allow her an extension
of time to appeal the court’s discretionary decision not to
exercise supplemental jurisdiction over the remaining state
law claims. On June 8, 2011, Glynne amended her motion,
again asking the district court to allow her additional time to
file a notice of appeal of the March Order, or "alternatively
and preferably" for relief pursuant to Rule 60(b), specifically
requesting that the March Order be amended or withdrawn to
allow Glynne 40 days from entry of the March Order to file
in state court. Id. at 115-116. Appellant wrote in opposition
to the motion.
1
Relying on N.C. Gen. Stat. § 1A-1 Rule 41(b), Glynne vehemently
contends that this is not a proper interpretation of North Carolina law; we
need not and do not resolve that question here.
2
According to appellant, the state court took WMC’s motion under
advisement and has since stayed the lawsuit pending the resolution of this
appeal. Br. of Appellant at 9 n.2.
GLYNNE v. WILMED HEALTHCARE 5
On August 4, 2011, the district court, without hearing argu-
ment or issuing any specific ruling on Glynne’s motion,
entered an amended order (the "Amended Order") and judg-
ment. The Amended Order was the same in all respects to the
March Order except that the district court added language
stating that Glynne would be allowed 60 days to file her
claims in state court. The district court wrote: "Therefore, this
matter is DISMISSED without prejudice to allow plaintiff the
opportunity to refile her state-law claims in the Superior
Court of North Carolina, within 60 days, if desired." J.A. 204-
205 (emphasis added). Although issued on August 4, 2011,
the Amended Order and judgment were entered nunc pro
tunc, thus asserting that they were effective as of the date of
the March Order, on March 1, 2011. On August 8, 2011,
WMC appealed the Amended Order and judgment.
II.
As an initial matter, Glynne asserts that because the district
court’s Amended Order was entered in response to her motion
for relief under Rule of Civil Procedure 60(b), we should
review for abuse of discretion. See Aikens v. Ingram, 652 F.3d
496, 501 (4th Cir. 2011). We decline to adopt this view given
that nothing in the record indicates that the district court spe-
cifically acted on Glynne’s motion. Even if we construed the
order below as granting Glynne’s Rule 60(b) motion, and that
an abuse of discretion standard thus applied, we would still
review de novo the application of nunc pro tunc as a question
of law. See American Bankers Ins. Group, Inc. v. Long, 453
F.3d 623, 629 (4th Cir. 2006) (the district court necessarily
abuses its discretion when it commits an error of law).
III.
A.
Nunc pro tunc literally means "Now for then." Maksym-
chuk v. Frank, 987 F.2d 1072, 1075 n.2 (4th Cir. 1993) (quot-
6 GLYNNE v. WILMED HEALTHCARE
ing 67 C.J.S. at 1 (1978)). We previously defined the doctrine
as "‘a procedure whereby a determination previously made,
but for some reason improperly entered or expressed, may be
corrected and entered as of the original time when it should
have been, or when there has been an omission to enter it at
all.’" Id. (quoting 67 C.J.S. at 2). The purpose of an order
entered nunc pro tunc is to correct mistakes or omissions in
the record so that the record properly reflects the events that
actually took place. It may not be used to retroactively record
an event that never occurred or have the record reflect a fact
that never existed. See Ex parte Buskirk, 72 F. 14, 20-21 (4th
Cir. 1896); see also Rockingham Cnty. Dep’t of Soc. Servs. v.
Tate, 202 N.C. App. 747, 751-52 689 S.E.2d 913, 916-17
(2010). We explained long ago that
[t]he rule is now well established that nunc pro tunc
orders cannot operate to modify orders theretofore
made or to take the place of orders intended to be
made but omitted. The courts can by such orders
supply omissions in the record of what was actually
done in the cause at a former time when it was under
consideration, and by mistake or neglect not entered
in the clerk’s minutes or the court’s records; but
where the court has omitted to make an order which
it could have made, and in fact intended to make, it
cannot subsequently make the same nunc pro tunc,
so as to make it binding upon the parties to the suit
from the date when it was so intended to have been
entered. . . .
Buskirk, 72 F. at 20-21. The passage of time has not altered
the purpose and limitations of this rarely-used device. See
Maksymchuk, 987 F.2d at 1075 n.2.
Indeed, the narrow confines of the doctrine are widely rec-
ognized. See, e.g., Romero-Rodriguez v. Gonzales, 488 F.3d
672, 677 (5th Cir. 2007) ("Courts . . . have traditionally
applied nunc pro tunc to correct limited types of errors,
GLYNNE v. WILMED HEALTHCARE 7
namely clerical or other record keeping errors."); Cent.
Laborers’ Pension, Welfare & Annuity Funds v. Griffee, 198
F.3d 642, 644 (7th Cir. 1999) ("As we have reminded the dis-
trict courts time and again, the only proper office of a nunc
pro tunc order is to correct a mistake in the records; it cannot
be used to rewrite history."); Recile v. Ward, 496 F.2d 675,
680 (5th Cir. 1974) ("The failure of a court to act, or its incor-
rect action, can never authorize a nunc pro tunc entry. If a
court does not render judgment, or renders one which is
imperfect or improper, it has no power to remedy any of these
errors or omissions by treating them as clerical misprisions."
(internal quotation marks omitted)), modified on other
grounds, 503 F.2d 1374 (1974); Crosby v. Mills, 413 F.2d
1273, 1277 (10th Cir. 1969) ("An order may be entered nunc
pro tunc to make the record speak the truth but it cannot sup-
ply an order which in fact was not previously made."); Mat-
thies v. R.R. Ret. Bd., 341 F.2d 243, 246 (8th Cir. 1965) ("An
entry nunc pro tunc is an entry made now of something which
was previously done, to have effect as of the former date, the
function, object, or purpose of such entry being to make the
record speak the truth . . . . It is not, on the other hand, the
function of such entry by a fiction to antedate the actual per-
formance of an act which never occurred . . . ." (internal quo-
tation marks omitted)).
B.
In view of the limited purpose of nunc pro tunc, the district
court unquestionably erred by entering the Amended Order
and judgment on August 4, 2011, nunc pro tunc March 1,
2011, which purported to extend by 60 days Glynne’s time to
refile her state law claims. Assuming for the sake of argument
that the district court possessed the power to extend the 30-
day tolling period, nothing indicates that the district court had
in fact done so when the issue was previously under consider-
ation. Because the doctrine of nunc pro tunc may only be
employed to correct mistakes or omissions in the record so
that the record properly reflects the events that actually took
8 GLYNNE v. WILMED HEALTHCARE
place, the district court’s attempt to modify its earlier order
for the first time under the guise of nunc pro tunc was error.3
IV.
Based on the foregoing reasons, the amended order and
judgment of August 4, 2011, are
VACATED.
3
The district court did not rely on any of the alternative arguments that
appellant posits; those arguments involve questions of state law that North
Carolina courts can best address.