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-defendantAppellee,

and

STEVEN POIZNER, AS INSURANCE

COMMISSIONER OF THE STATE OF

CALIFORNIA; STATE OF CALIFORNIA,

No. 10-57000 Plaintiffs,

D.C. No. v. 

2:99-cv-02829-

JEAN FRANCOIS HENIN, AHM-CW

Defendant-cross-claimantAppellant,

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
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, 

7128 GARAMENDI v. HENIN
SIERRA NATIONAL INSURANCE 

HOLDINGS, INC.; GEORGIA LEE, as

Receiver for Sierra National

Insurance Holdings, Inc.,

Plaintiffs/counter-defendantsAppellees,

v.

JEAN FRANCOIS HENIN,

Defendant/cross-claimantAppellant,

MAAF VIE SA, a corporation

organized under French law; No. 10-57009

MAAF ASSURANCES, a mutual

D.C. No. insurer organized under French  2:01-cv-01339- law; FRANCOIS PINAULT; JEANCLAUDE 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-claimThird-party Plaintiffs, 

GARAMENDI v. HENIN 7129
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

7130 GARAMENDI v. HENIN
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 California 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 content 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. 

GARAMENDI v. HENIN 7133
We affirm. The operative, substantive terms of the corrected 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 portfolio. 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 purchased 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.

7134 GARAMENDI v. HENIN
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 rehabilitation 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 portfolio.

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 barriers to foreign entities, like Altus, from issuing insurance 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 several related cases. See id. at 996 n.3. Specifically, the conspiracy 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 prohibited “entities controlled by foreign governments, like

Credit Lyonnais and Altus, from obtaining certificates of

authority from the Department of Insurance to conduct business in California.” Id.

The claims involved in this appeal are asserted against

Jean-François Hénin (1) by Sierra National Insurance Holdings, Inc., and its receiver, Georgia Lee (collectively, “Sierra”) 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 fedGARAMENDI v. HENIN 7135
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 competitive bidding process. Both complaints allege that Altus

employed a front for their control over ELIC’s insurance business, via secret agreements referred to as “contrats de portage.” Both complaints allege specific misrepresentations

relating to Altus’ relationship with the front. Both complaints

allege that Altus knew that California and federal law prohibited it from owning or controlling, directly or indirectly, a life

insurance company. Both complaints allege that Hénin “actively 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 “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 own the [ELIC] highyield 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 damages 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 insurance business. 

The Commissioner’s prayer for relief, by contrast,

requested not only compensatory and punitive damages, but

also restitution for unjust enrichment. The Commissioner

7136 GARAMENDI v. HENIN
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 additional 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 judgment wherein he quantified his damages against Hénin and

certain other defaulting defendants. Relying on a contemporaGARAMENDI v. HENIN 7137
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 specifically requested joint and several liability as to certain defendants, 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 damages 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 settlements with other defendants, and it submitted expert

1The district court made a separate and different finding of restitutionary damages against the other defaulting defendants, expressly stating that

those defendants were jointly and severally liable among themselves. 

2On 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. 

7138 GARAMENDI v. HENIN
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 consisting 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 Commissioner.” 

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 Commissioner, 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 judg3Less than a week later, the district court entered a separate default

judgment for Sierra against the other defaulting defendants, expressly stating 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))). 

GARAMENDI v. HENIN 7139
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, alternatively, under Rule 60(b)(6) so as to “supply the details the

French court found wanting and to make it clear that the Judgments 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 relevant 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 pertaining 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

7140 GARAMENDI v. HENIN
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 insurance business.”

The damages portion is different in each corrected judgment. In the corrected judgment pertaining to the Commissioner, the district court reiterated the amounts calculated by

the Commissioner’s expert and referred to that expert’s submissions. 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 district court had determined that Sierra was entitled to compenGARAMENDI v. HENIN 7141
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 damages 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 district 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).

7142 GARAMENDI v. HENIN
DISCUSSION

A. Federal Rule of Civil Procedure Rule 60(a)

[1] Federal Rule of Civil Procedure 60(a), titled “Corrections Based on Clerical Mistakes; Oversights and Omissions,”

states:

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. 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 contrasting 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 correct 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

5Federal 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.” 

GARAMENDI v. HENIN 7143
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 modification 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 written 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 judgment 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 interest]”).

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.

7144 GARAMENDI v. HENIN
. . . .

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 canceled 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 purposes 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 confirmed 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 successfully enforced it to the extent of the sum certain. Id. The losing party obtained a judgment of satisfaction in his home state

and then sought to discharge the original judgment at the issuGARAMENDI v. HENIN 7145
ing court, but that court refused, issuing a supplemental judgment 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 Federal 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

6The 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 providing that “errors therein (in judgments) arising from oversight or omission 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)). 

7146 GARAMENDI v. HENIN
to correct an original order requiring a husband to provide

maintenance payments to his wife and children. The correction limited those payments to periods when the wife and children 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 contemporaneous 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 Practice § 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 alterations 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)).

GARAMENDI v. HENIN 7147
[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 corrected judgments that those judgments “change[ ] no substantive 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 statements 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 Commissioner’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 Commissioner. Both complaints also allege 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 own the [ELIC] high-yield bond portfolio

and/or [ELIC] insurance business.” 

[5] The references to Hénin’s criminal plea and his continued evasions are the only new material in the liability portions

7148 GARAMENDI v. HENIN
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 significance 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 information does not require reversal when, as here, those facts do

not affect the reasoning of the original or corrected judgments. 

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 judgments reiterate the same theory of damages identified in the

original rulings—compensation in Sierra’s case and restitution in the Commissioner’s case. It is clear from the original

rulings that none of the damages attributed to Hénin was punitive 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 judgments 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 liability, but Hénin is the only defendant named and discussed in

that judgment, so such specification was unnecessary.

GARAMENDI v. HENIN 7149
[6] The only new information in the damages portions of

the corrected judgments is the district court’s further explanation 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 district 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 original 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 substantive 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 judgments 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 ‘disposition 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)). 

7150 GARAMENDI v. HENIN
[9] Having failed to challenge the original default judgments, Hénin now argues that the damages awarded in the

default judgments were incorrect or not supported by the evidence, 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 individual, 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.8See Cal. Civ. Proc. Code § 877 (organized

8Hénin 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 settling defendants were not negligent.”); Vesey, 626 F.2d at 632-33 (“Thus

[the settling defendants’] subsequent exoneration of negligence in the liability 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. 

GARAMENDI v. HENIN 7151
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 relevant 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 tortfeasor releases all other joint tortfeasors absent an express reservation 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 pursuant 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

7152 GARAMENDI v. HENIN
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 originally 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,

9The 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 pursued 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, notwithstanding the potential incongruity of verdicts. Id. at 1512 (“[The trial

court] shall also consider the motion . . . to introduce evidence as to damages if it ultimately finds a default.”). 

GARAMENDI v. HENIN 7153
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 someone else. The district court did not abuse its discretion in failing to stay entry of the corrected default judgments. 

AFFIRMED.

7154 GARAMENDI v. HENIN