United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 05-1598

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United States of America, * 

* 

Plaintiff - Appellee, * 

* 

v. * Appeal from the United States 

* District Court for the 

Metropolitan St. Louis Sewer District, * Eastern District of Missouri.

* 

Defendant - Appellee, * 

*

v. *

*

Mallinckrodt, Inc., * 

*

Intervenor - Appellant. *

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Submitted: November 16, 2005

Filed: March 6, 2006

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Before SMITH, HEANEY, and BENTON, Circuit Judges.

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SMITH, Circuit Judge.

Mallinckrodt, Inc. intervened in a Comprehensive Environmental Response,

Compensation and Liability Act ("CERCLA") contribution action between the

Metropolitan St. Louis Sewer District ("MSD") and the Environmental Protection

Agency ("EPA"). Mallinckrodt opposed the entry of a Consent Decree between the
1

The Honorable E. Richard Webber, United States District Judge for the Eastern

District of Missouri.

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parties. Over Mallinckrodt's objections, the district court1

 entered the Consent Decree.

Thereafter, Mallinckrodt filed motions for reconsideration based on newly discovered

evidence pursuant to Federal Rules of Civil Procedure 59(e) and 60(b)(3). The district

court denied these motions. For the reasons stated below, we affirm.

I. Background

CERCLA grants the Executive Branch substantial authority and broad

discretion to provide for the cleanup of hazardous-substance sites. The government,

however, does not bear the complete cost of site cleanup. CERCLA provides that

monies spent by federal and state governments to clean up hazardous substances will,

whenever possible, be recovered from responsible parties, including owners and

operators of facilities where hazardous substances are disposed. 

The United States spent $9,237,244.30 cleaning up the contamination of

hazardous substances at the Great Lakes Container Corporation Superfund Site ("the

Site") in St. Louis, Missouri. From 1952 to 1986, a facility that reconditioned used

steel drums operated on the Site. During this period, the Site became contaminated

with various hazardous substances. The larger portion of this Site consists of a 10-

acre, roughly rectangular, parcel on which the drum reclamation facility was located.

Mallinckrodt operated a drum recycling plant there between 1970 and 1976. Prior to

that time, Mallinckrodt's corporate predecessor ran the plant. The remainder of the

Site, just west of the former facility, is a one-acre parcel that was owned by the St.

Louis Metropolitan Bridge Terminal Railway Company until MSD bought the

property for expansion of its secondary treatment facilities. However, MSD never

built additional facilities, and its property remained vacant. 
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In early 2001, the EPA invited MSD and Mallinckrodt to negotiate a settlement

on the clean up costs. The EPA initially assigned a share of approximately 4% of the

total cost to MSD for clean up of the Site. The EPA concluded that MSD was most

likely a "passive landowner" that neither participated in nor profited from the

contamination of its property by hazardous substances, even though approximately

26% of the contaminated soil that was removed from the Site, by volume, came from

the one-acre tract owned by MSD. After extensive negotiations, MSD and the EPA

negotiated a Consent Decree, which required MSD to reimburse the United States

$230,000 in response costs. This reduced MSD's share of the clean up costs to about

2.52% of the total. 

EPA and MSD filed this Consent Decree with the district court, and a thirty-day

public comment period ensued. During this period, the United States received

comments from Mallinckrodt, a defendant in a companion CERCLA case involving

the same Site, arguing that the amount to be paid by MSD was too small and that

Mallinckrodt and other potentially responsible parties ("PRPs") would be unfairly

saddled with the remainder of the costs. Since CERCLA provides for joint and several

liability for all PRPs, any reduction in MSD's liability could increase Mallinckrodt's.

Mallinckrodt formally intervened in the district court case between MSD and the EPA

and filed its opposition to the United States' motion to enter the Consent Decree. After

considering the parties' briefing and argument, the district court entered the Consent

Decree. 

After entry of the Consent Decree, Mallinckrodt timely filed a Fed. R. Civ. P.

59(e) motion to alter or amend the judgment, alleging the discovery of new evidence.

Mallinckrodt claimed that an expert report prepared in its companion CERCLA case,

which interpreted aerial photographs of the Site, established that MSD actively
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Mallinckrodt's expert report, prepared by Wayne Grip, suggests that: (1) MSD

was responsible for the majority of the buried drums on the Site; (2) MSD was also

responsible for uncovering and then re-burying some of those drums; and (3) MSD

was directly responsible for depositing toxic sludge ash on the property and on a piece

of property directly to the south. 

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participated in the transportation and disposal of wastes on its part of the Site.2

Mallinckrodt also submitted three documents it obtained from the EPA in support of

this claim. The district court denied Mallinckrodt's motion, stating that the evidence

was not "new."

After the district court denied its Rule 59(e) motion, Mallinckrodt filed a

motion pursuant to Rule 60(b)(3), asking the district court to reconsider. Mallinckrodt

claimed that counsel for MSD and the EPA made fraudulent statements at the hearing

on the Consent Decree. The district court denied Mallinckrodt's Rule 60(b)(3) motion.

Mallinckrodt filed a timely notice of appeal of the district court's entry of the Consent

Decree and its rulings on the post-judgment motions. 

II. Discussion

On appeal, Mallinckrodt contends that the district court granted the Consent

Decree settlement because MSD falsely represented itself as a passive owner, and this

misrepresentation prevented Mallinckrodt from fairly presenting its objections. In

addition, Mallinckrodt suggests that newly discovered evidence establishes that MSD

actually materially contributed to the contamination, and this new evidence is both

material and outcome determinative. Specifically, Mallinckrodt argues that the expert

report submitted after the Consent Decree was entered, prepared by Wayne Grip, an

expert in interpreting aerial photographs, established that MSD was a substantial

contributor to the contamination of the Site. Therefore, Mallinckrodt contends that the

district court abused its discretion in denying its post-judgment motions for relief. We

disagree and affirm.
3

Rule 59(e) and Rule 60(b)(2) are analyzed identically. Rule 59(e) states in

relevant part, "[a]ny motion to alter or amend a judgment shall be filed no later that

10 days after entry of judgment." Rule 60(b)(2) states in relevant part, "[o]n motion

and upon such terms as are just, the court may relieve a party or a party's legal

representative from a final judgment, order, or proceeding for the following reasons:

. . . (2) newly discovered evidence which by due diligence could not have been

discovered in time to move for a new trial under Rule 59(b)."

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A. Rule 59(e) Motion3

A district court has broad discretion in determining whether to grant or deny a

motion to alter or amend judgment pursuant to Rule 59(e), and this court will not

reverse absent a clear abuse of discretion. Innovative Home Health Care v. P.T.-O.T.

Assoc. of the Black Hills, 141 F.3d 1284, 1286 (8th Cir. 1998). It should be noted that

Rule 59(e) motions serve the limited function of correcting "'manifest errors of law

or fact or to present newly discovered evidence.'" Id. (quoting Hagerman v. Yukon

Energy Corp., 839 F.2d 407, 414 (8th Cir. 1988)). "Such motions cannot be used to

introduce new evidence, tender new legal theories, or raise arguments which could

have been offered or raised prior to entry of judgment." Id. To prevail on a Rule 59(e)

motion, the movant must show that (1) the evidence was discovered after trial; (2) the

movant exercised due diligence to discover the evidence before the end of trial; (3) the

evidence is material and not merely cumulative or impeaching; and (4) a new trial

considering the evidence would probably produce a different result. See U.S. Xpress

Enter. Inc. v. J.B. Hunt Transp., Inc., 320 F.3d 809, 815 (8th Cir. 2003) (discussing

factors one must show to prevail under Rule 60(b)(2), which are the same under Rule

59(e)). 

Mallinckrodt argues that the district court should have granted its motion for

a new trial pursuant to Rule 59(e) based on newly discovered evidence, namely, the

newly acquired Grip analysis of MSD's activities on the Site. First, Mallinckrodt states

that it did not discover the evidence that MSD materially contributed to the

contamination of the Site until 11 days after the judgment, when Grip completed his
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expert report. Second, Mallinckrodt avers that it exercised due diligence to discover

the evidence. Mallinckrodt asserts that the focus of the hearing on the Consent Decree

was whether MSD knowingly allowed others to contaminate its property—not

whether MSD itself had materially contributed to the contamination. The district court

found that the documents and photographs underlying the Grip report were in

Mallinckrodt's possession or readily available prior to the Consent Decree.

Mallinckrodt responds by stating that this finding ignores the context in which

Mallinckrodt acted. Mallinckrodt argues that it had no reason to doubt the EPA and

MSD's representations that MSD had not contributed to the contamination.

Consequently, Mallinckrodt claims that it had no reason to look for this evidence. 

Third, Mallinckrodt suggests that this evidence is material, not cumulative,

because it is the only evidence on the topic of MSD's contribution to the Site

contamination. For that same reason, Mallinckrodt states that a new trial considering

this new evidence would produce a different result. Under CERCLA, the settlement

is to reflect the relationship of the settlement figure to the proportion of the settling

party's waste. Based on its purported new evidence, Mallinckrodt claims MSD's 2.5%

settlement is unfair and contrary to the aims of CERCLA. It further avers that it has

offered far more than speculation, and for that reason, the district court abused its

discretion in denying its Rule 59(e) motion. 

The appellees respond by stating that Mallinckrodt has failed to show any of the

four elements necessary to prevail under Rule 59(e). First, the Grip report was created,

not discovered, after the district court entered judgment. Second, Mallinckrodt failed

to complete the Grip report in time to present it during the Consent Decree hearing

and thus did not exercise due diligence. Third, the Grip report is highly conclusory,

and at best, cumulative. Lastly, the district court's consideration and rejection of the

Grip report shows that even if the report had been timely presented, it would not have

prevented approval of the Consent Decree.
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We agree with the appellees. After reviewing the opinion of the district court,

we find no abuse of discretion in denying Mallinckrodt's Rule 59(e) motion. In

support of its ruling, the district court stated the following:

This Court finds that Mallinckrodt has presented no new evidence. The

documents relied on by Mallinckrodt and several of the aerial

photographs relied on by Mr. Grip in his report were in Mallinckrodt's

possession or readily available for months prior to this Court entering the

Consent Decree. Arguing a new application of these facts under a new

strategic theory cannot be considered "new evidence." . . . Mr. Grip's

analysis does not raise new facts; instead, it raises only new opinions and

suspicions about the extent to which MSD contributed to the

contamination at the GLCC Site. Because Mallickrodt fails to provide

"new evidence" as required under FRCP 60(b)(2), this Court finds that

Mallinckrodt's motion should be denied. 

This court has consistently held that Rule 59(e) motions cannot be used to introduce

new evidence, tender new legal theories, or raise arguments which could have been

offered or raised prior to the entry of judgment. See Innovative Home Health Care,

141 F.3d at 1286 (8th Cir. 1998); Garner v. Arvin Indus. Inc./Arvin North Am.

Automotive, 77 F.3d 255, 258–59 (8th Cir. 1996). In this case, Mallinckrodt has not

advanced a persuasive explanation for its failure to obtain or produce this "new"

evidence before the Consent Decree hearing. All information used in formulating the

Grip report was available to Mallinckrodt well before the Consent Decree hearing. In

fact, the aerial photographs analyzed by Mr. Grip were obtained through a commercial

vendor, and the documents from the EPA, used by Mallinckrodt, were given to

Mallinckrodt 17 months before the Consent Decree hearing. 

Because this evidence was available to Mallinckrodt, it should have been

presented prior to the entry of judgment. The Grip report is merely a newly created

opinion based on facts known to or accessible by Mallinckrodt at the time of the

Consent Decree hearing and cannot warrant relief under Rule 59(e). Mallinckrodt
4

Rule 60(b)(3) states in relevant part, "[o]n motion and upon such terms as are

just, the court may relieve a party or a party's legal representative from a final

judgment, order, or proceeding for the following reasons: . . . (3) fraud (whether

heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct

of an adverse party . . ."

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controlled the timing of the production and proffer of its own expert's opinion. Thus,

the district court did not abuse its discretion in refusing to consider Mallinckrodt's new

evidence. See Crowell v. Campbell Soup Co., 264 F.3d 756, 764 (8th Cir. 2001)

(holding that the allegedly new evidence appeared to come from public records and

not from any misrepresentation of the appellee, therefore, the district court did not

abuse it discretion in denying the appellant's motion for reconsideration under Rule

59(e)); Liberty Mutual Ins. Co. v. FAG Bearings Corp., 153 F.3d 919, 924 (8th Cir.

1998) (holding that the appellant failed to show that it exercised due diligence to

discover the new evidence and failed to show why such evidence could not have been

discovered earlier).

B. Rule 60(b)(3) Motion4

To prevail on a Rule 60(b)(3) motion, the movant must show, "'with clear and

convincing evidence, that the opposing party engaged in a fraud or misrepresentation

that prevented the movant from fully and fairly presenting its case.'" Harley v. Zoesch,

413 F.3d 866, 870 (8th Cir. 2005) (quoting Atkinson v. Prudential Property Co., Inc.,

43 F.3d 367, 372–73 (8th Cir. 1994)). "It is within the trial court's discretion to

determine whether the Rule 60(b)(3) test has been met, and on review the only inquiry

is whether there has been an abuse of discretion." E.F. Hutton & Co., Inc. v. Berns,

757 F.2d 215, 217 (8th Cir. 1985).

Mallinckrodt states that shortly after the entry of the Consent Decree, it

unearthed evidence not previously available that clearly established that MSD played

a principal role in burying the drums on the Site and adding to the contamination. In
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support of its Rule 60(b)(3) motion, first, Mallinckrodt argues that counsel for both

MSD and the EPA misrepresented MSD's status as a purely passive owner. Based

upon the Grip report, Mallinckrodt asserts that it is clear that the statements made by

MSD and the EPA were erroneous. Although Mallinckrodt does not allege that the

appellees made any intentional misrepresentations, Mallinckrodt urges that Rule

60(b)(3) applies to unintentional misrepresentations, as well as intentional. Thus,

Mallinckrodt contends that the district court erred in finding that it failed to show that

the EPA and MSD intentionally misled the Court. 

Second, Mallinckrodt argues that the EPA's and MSD's misrepresentations

prevented it from fully and fairly presenting its objections to the Consent Decree.

Because no discovery was permitted, Mallinckrodt claims that it was even more

critical that counsel for the EPA and MSD make absolutely certain that MSD had not

materially contributed to the contamination before repeatedly representing such to the

district court. Forced to rely on the EPA's and MSD's assertions, Mallinckrodt

contends that it was prevented from fully and fairly presenting its objections to the

Consent Decree, and, as a result, the district court erred in denying it relief pursuant

to Rule 60(b)(3).

We find no abuse of discretion in the district court's denial of Mallinckrodt's

Rule 60(b)(3) motion. Under Rule 60(b)(3), Mallinckrodt was required to show that

the appellees engaged in fraud or misrepresentation, and that it was prevented from

fully and fairly litigating this case. Mallinckrodt has shown neither. The district court

stated the following in its Rule 60(b)(3) opinion:

Mr. Grip's analysis of the aerial photographs presented in support of this

motion by Mallinckrodt does not raise new facts; instead it raises only

new opinions and suspicions about the extent to which MSD contributed

to the contamination at the Great Lakes Corporation Site. Because

Mallinckrodt is unable to even prove the falsity of the statements made

by the Environmental Protection Agency and the Metropolitan St. Louis
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Sewer District with clear and convincing evidence, much less provide

evidence that the EPA and MSD were intentionally misleading the Court,

Mallinckrodt has not convinced this Court that it was prevented from

fully and fairly presenting its case. This Court holds that Mallickrodt has

not met its burden under FRCP 60(b)(3), and its motion should be

denied. 

We agree. "This is not a case in which the [appellees] withheld information that they

alone possessed. A copy of the [evidence] was in [Mallinckrodt's] possession the

entire time. . . . [it] had a fair opportunity to discover [the evidence] simply by going

through [its] files." Atkinson, 43 F.3d at 373. Mallinckrodt presented no evidence to

support its assertion that the appellees withheld evidence, giving rise to a claim of

fraud or misrepresentation. See Harley, 413 F.3d at 871 (holding that the participant

in this case did not present the kind of clear and convincing evidence of

misrepresentation necessary to prevail on a Rule 60(b)(3) motion). 

Moreover, Mallinckrodt's claim that it relied on the appellees' assertion that

MSD was a "passive landowner" is completely unconvincing. Mallinckrodt intervened

in this case and presented evidence that MSD's allocation of the clean up costs was

disproportionate. Mallinckrodt's expert report would have been relevant in advancing

its position during the Consent Decree hearing and could have been prepared and

presented at that time. As such, the district court did not err in refusing to give

Mallinckrodt a second bite at the apple. Mallinckrodt was given a full and fair

opportunity to litigate this case in the first instance and cannot blame deficiencies in

presenting its case on the appellees. Therefore, the district court did not abuse its

discretion in denying Mallinckrodt's Rule 60(b)(3) motion.

III. Conclusion

For the reasons stated above, the district court's rulings on Mallinckrodt's postjudgment motions are affirmed. 

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