In the case of Brimhall v. Brewster (PDF) the Court of Appeals charts the murky waters of 41(E) motions, nunc pro tunc orders, service by publication, and default judgments. More of the former two than the latter. Basically, a plaintiff files suit, doesn’t get service, doesn’t respond to a 41(E) motion, has a 41(E) dismissal entered, has it set aside by a nunc pro tunc order, serves by publication, and enters a default judgment.
The Court of Appeals says you can’t do that. Unless a 41(E) order says otherwise, a dismissal is with prejudice. You can’t use nunc pro tunc orders except under limited circumstances and this isn’t one of them. The dismissal stands, and the defendant skates.
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