United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 11, 2005
Charles R. Fulbruge III
Clerk
No. 04-10626
Summary Calendar
ADAM R. MILLER,
Plaintiff-Appellant,
versus
AMERICAN INTERNATIONAL GROUP, INC., THE INSURANCE COMPANY OF THE
STATE OF PENNSYLVANIA; AIG CLAIMS SERVICES, INC.; TEXAS WORKERS
COMPENSATION COMMISSION,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:02-CV-553
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Before REAVLEY, JOLLY and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
Adam R. Miller appeals from the district court’s Second
Amended Final Judgment, which the district court issued following
its grant of a FED. R. CIV. P. 60(a) motion to correct a clerical
mistake filed by defendants American International Group, Inc.
(“AIG”), the Insurance Company of the State of Pennsylvania
(“ICSOP”), and AIG Claims Services, Inc. (“AIG Claims”).
Consistent with the order issued upon its grant of the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 04-10626
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defendants’ Rule 60(a) motion, the district court’s Second
Amended Final Judgment dismissed, with prejudice, all of Miller’s
claims against AIG.
Miller argues that the district court’s grant of the Rule
60(a) motion was erroneous because it precludes him from pursuing
state law claims against AIG and affects his substantial rights.
He contends that the defendants should have pursued an appeal
from the district court’s original final judgment rather than
seek relief under Rule 60(a). Miller requests the issuance of a
writ of mandamus, and he also asks that the defendants be
assessed the sum of $1500, plus interest, to cover the costs
associated with the appeal. See id. at 11.
Rule 60(a) is to be applied where “the record makes apparent
that the court intended one thing but by merely clerical mistake
or oversight did another. Such a mistake must not be one of
judgment or even of misidentification, but merely of recitation,
of the sort that a clerk or amanuensis might commit, mechanical
in nature....” Harcon Barge Co., Inc. v. D & G Boat Rentals,
Inc., 784 F.2d 665, 668 (1984)(en banc).
The district court’s original final judgment reveals
ambiguity as to whether Miller’s claims against AIG were
dismissed with prejudice or without prejudice. “Clerical
mistakes may . . . involve ‘ambiguity’ in a judgment or order.”
In re Amer. Precision Vibrator Co., 863 F.2d 423, 430 n.9 (5th
Cir. 1989) (internal quotation omitted). Our review of the order
No. 04-10626
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that accompanied the original final judgment indicates that all
of Miller’s claims against AIG were dismissed, with prejudice,
based on the district court’s determination that AIG was not a
proper party defendant. We therefore conclude that the district
court did not err in granting the FED. R. CIV. P. 60(a) motion to
correct a clerical mistake in its previous judgment. See Harcon
Barge, 784 F.2d at 668; Stovall v. Illinois Central Gulf R.R.
Co., 722 F.2d 190, 191 (5th Cir. 1984). Accordingly, the
judgment of the district court is AFFIRMED, and Miller’s requests
for mandamus relief and for the costs associated with the appeal
are denied.
Miller’s unopposed motion for leave to file an-out-of-time
reply brief is GRANTED. See FED. R. APP. P. 26(b). The
defendants’ motion for sanctions for filing a frivolous appeal is
DENIED. See FED. R. APP. P. 38.