W. et al v. United Behavioral Health et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
CHARLES W. and T.W.,
Plaintiffs,
v.
UNITED BEHAVIORAL HEALTH and the
WELLS FARGO & COMPANY HEALTH
PLAN,
Defendants.
MEMORANDUM DECISION AND
ORDER DENYING DEFENDANTS’
MOTION FOR LEAVE TO FILE
ANSWER NUNC PRO TUNC
Case No. 2:18-cv-000829-TC
Judge Tena Campbell
Before the court is the Defendants’ Cross-Motion for Leave to File Answer Nunc Pro
Tunc. (ECF No. 68.) The Defendants included this request in their response to the Plaintiffs’
Motion to Strike Answer. (ECF No. 61.) For the following reasons, the court finds that such a
request is inappropriate and denies the motion.
BACKGROUND
The original complaint in this action was filed by Plaintiffs Charles W. and T.W. on
October 23, 2018. (ECF No. 2.) Defendants United Behavioral Health (United) and the Wells
Fargo & Company Health Plan (Wells Fargo) waived service and filed a motion to dismiss.
(Waivers of Service, ECF Nos. 5 & 6; Mot. Dismiss, ECF No. 7.) The court granted that motion
in part, denied that motion in part, and stayed the case pending the resolution of a class action in
the Northern District of California. (Order & Mem. Decision, Dec. 18, 2019, ECF No. 35.) The
case then remained stayed for over five years.
On April 1, 2025, the court issued an order requesting a status report. (Order, Apr. 1,
2025, ECF No. 41.) Because the Ninth Circuit had reversed the district court’s class certification
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in the relevant class action, the parties agreed that the stay should be lifted and “a schedule
should be set for briefing of the merits of the remaining cause of action in this case ….” (Status
Report, May 1, 2025, ECF No. 42 at 1.) The parties then set a briefing schedule for dispositive
motions. (Id.) The parties later stipulated to three extensions to that briefing schedule. (See
Stip. Mots. Extension, ECF Nos. 44, 46, 48.)
The parties filed their motions for summary judgment on October 3, 2025. (Pls.’ Mot.
Summ. J., ECF No. 55; Defs.’ Mot. Summ. J., ECF No. 52.) But the court denied those motions
without prejudice because the parties filed two separate administrative records. (Order, Oct. 7,
2025, ECF No. 57.) The court ordered the parties to “meet and confer to determine if they can
agree on the correct record on which the court should rely.” (Id. at 2.) The court then set a
deadline for motions to complete the record or, alternatively, for renewed motions for summary
judgment. (Id.) Because the court granted two extensions, those motions are now due on
December 15, 2025. (Order, Nov. 5, 2025, ECF No. 64.)
While the court has been focused on the administrative record and dispositive motions,
the parties have raised a separate issue. The last sentence of the Plaintiffs’ motion for summary
judgment reads as follows: “[B]ecause Defendants have failed to file a responsive pleading to the
Complaint in this case, the Court may enter a default judgment against the Defendants.” (ECF
No. 55 at 38.) Responding to that sentence, the Defendants filed an answer on October 10, 2025.
(ECF No. 60.)
The Plaintiffs then moved to strike that answer, arguing that there was no excusable
neglect that justified the late filing. (ECF No. 61 at 4.) In their response to the motion, the
Defendants included their cross-motion for leave to file an answer nunc pro tunc that is now
before the court. (ECF No. 68.)
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ANALYSIS
Federal courts may issue nunc pro tunc orders, or “now for then” orders, to “‘reflect the
reality’ of what has already occurred[.]” Roman Cath. Archdiocese of San Juan v. Acevedo
Feliciano, 589 U.S. 57, 65 (2020) (quoting Missouri v. Jenkins, 495, U.S. 33, 49 (1990)). The
court may use a nunc pro tunc order to correct a clerical mistake. See 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.”). But as the Supreme
Court has noted, such orders are not appropriate to change the facts that actually occurred: “Put
colorfully, ‘nunc pro tunc orders are not some Orwellian vehicle for revisionist history—creating
‘fact’ that never occurred in fact.” Acevedo, 589 U.S. at 65 (quoting United States v. Gillespie,
666 F. Supp. 1337, 1339 (N.D. Ill. 1987)). In other words, the court “cannot make the record
what it is not.” Id. (quoting Jenkins, 495 U.S. at 49).
Here, the Defendants filed their answer late, and the court will not change this reality by
designating their answer nunc pro tunc to have been filed at some earlier time. The court will,
however, consider the question that is raised by the Plaintiffs’ motion to strike—namely, whether
there was excusable neglect under Rule 6(d) of the Federal Rules of Civil Procedure that justifies
the Defendants’ late filing.
The court finds it likely that there was excusable neglect. This case had been stayed for
over five years, and even the court was unaware that no answer had yet been filed. The
Defendants responded promptly when they realized their omission and have otherwise defended
the lawsuit by filing a motion to dismiss and a motion for summary judgment.
The Plaintiffs assert that they have been prejudiced because the Defendants raised several
affirmative defenses in their answer only after both parties attempted to file motions for
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summary judgment. But these affirmative defenses do not appear to be appreciably different
from the arguments raised in the Defendants’ motion for summary judgment. And although the
court agrees with the Plaintiffs that the Defendants filed their answer 144 days late, it is also true
that the Plaintiffs failed to move for entry of default or for default judgment under Rule 55 of the
Federal Rules of Civil Procedure during that time—preferring instead to highlight the issue only
when the parties filed their motions for summary judgment. The Plaintiffs can hardly complain
of prejudice when they themselves failed to raise the Defendants’ omission with the court in a
timely manner.
Nevertheless, the court will reserve ruling on the Plaintiffs’ motion to strike until the
Plaintiffs have a chance to file their reply in support of that motion. To avoid further delays, the
Plaintiffs must file their reply within seven days of the date of this order. While the court is not
willing to enter default judgment against the Defendants given these facts, the court will consider
whether a lesser sanction, such as striking any affirmative defenses that were not adequately
raised in the Defendants’ previously filed motion to dismiss and motion for summary judgment,
would be appropriate.
ORDER
For the foregoing reasons, the court ORDERS as follows:
1. 	The Defendants’ Cross Motion for Leave to File Answer Nunc Pro Tunc (ECF
No. 68) is DENIED.
2. 	The Plaintiffs must file any reply in support of their Motion to Strike (ECF
No. 61) within seven days from the date of this order.
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DATED this 24th day of November, 2025.
BY THE COURT:
___________________________________
Tena Campbell
United States District Judge
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