1 The Honorable Karen E. Schreier, United States District Judge for the District of South Dakota. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 07-1864

___________ Richard M. Jones, *
* Plaintiff - Appellee, * * Appeal from the United States v. * District Court for the District * of South Dakota. Todd V. Swanson, *
* Defendant - Appellant. *

___________ Submitted: December 13, 2007 Filed: January 16, 2008

___________ Before BYE, ARNOLD, and MELLOY, Circuit Judges.

___________ BYE, Circuit Judge. Todd V. Swanson appeals the district court's 1 order dismissing his motion to vacate brought under Rule 60(b) of the Fede ral Rules of Civil Procedure. Swanson also appeals the district court's orders denying motions to conduct post-judgment discovery and to designate the real party in interest. We affirm.-2- I

Richard M. Jones sued Swanson under S outh Dakota's alienation of affection law, claiming Swanson's romantic involveme nt with Jones's wife, Donna, caused the couple's marriage to fail. A jury found in favor of Richard and awarded compensatory and punitive damages totaling $950,000. The district court entered judgment in favor of Richard on February 19, 2002. Swans on appealed and we affirmed on condition Richard accept a remitted verdict of $400,000 ($150,000 in compensatory and $250,000 in punitive damages). Richard accepte d the reduced verdict and the district court entered an amended judgment on November 21, 2003.

In September 2004, Donna contacted Swan son asking to meet. The two met on October 9, 2004, and at the m eeting Swanson explained he di d not intend to revive the romance. Nonetheless, Donna told hi m about child custody difficulties she was having with Richard and his new wife, and alluded to another issue she wanted to discuss. On October 14, 2004, Donna called Swanson and told him her trial testimony had not been entirely truthful. Specifically, Donna said she was under considerable stress during the trial and to keep from losing her children and marriage, testified she had feelings for Richard when the affair with Swanson began. In truth, according to Donna, by the time the affair be gan, her relationship with Richard was tenuous and the affair did not cause the marriage to fail.

After Donna's admission, Swanson agreedto meet with her in person. On October 26, 2004, Swanson and Donna met to further discuss her trial testimony. Donna reiterated her ear lier admission, stating she had b een untruthful at trial and had lied to protect herself. On two occasi ons during the conversa tion, Donna asked to speak with Swanson's attorneys and offered to help. Swanson surreptitiously recorded the conversation.-3- In the roughly two and one half year s since the verdic t, Swanson had successfully avoided attempts to collect on the $400,000 judgment, and, in the fall of 2004, Richard, who was experiencing financial difficulties, filed for bankruptcy protection. Before filing bankruptcy, Richard assigned his interest in the judgment to his lawyers. The law firm, in turn, later assigned the judgment to the bankruptcy trustee. Coincidentally, as these even ts were unfolding, Richard became convinced Donna had lied at trial and wrote a letter to the district court stating his belief and asking the court to dismiss the judgment against Swanson.

On November 19, 2004, Swanson filed a motion to vacate the judgment under Rule 60(b), citing Donna's false trial te stimony. Swanson argued Donna's admission constituted newly discovered evidence and warranted relief from judgment under Rule 60(b)(2). Alternatively, Swanson argued the perjury of a non-party witness warranted relief under Rule 60(b)(6)'s catch-all provision. In the same motion, Swanson moved for an opportunity to conduct post-judgment discovery to further explore the merits of the motion to vacate. Upon learning the judgment had been assigned to Richard's attorneys, Swanson filed a separate motion seeking a declaration of the real party in interest.

Initially, the district court found the Rule 60(b) motion timely and scheduled an evidentiary hearing. In the same order, it denied the motion to conduct postjudgment discovery. Upon reconsideration, the district court concluded the Rule 60(b)(2) motion was untimely because it had not been made within one year of the date the district court first entered judgm ent in favor of Rich ard. The court also concluded the Rule 60(b)(6) motion was untimely because it had not been made within a reasonable time after en try of the first judgment. Finally, the court denied the motion for declaration of the real party ininterest as moot, concluding the judgment had been assigned to Richard's bankruptcy estate.-4- On appeal, Swanson argues the districtcourt erred in concluding the one-year limitations period for filing a motion under Ru le 60(b)(2) commenced on the date the original judgment was entered (February 19, 2002), instead of the date the judgment remitting the damage award was entered (November 21, 2003). Swanson also argues the district court abused its discretion in concluding the motion to vacate under Rule 60(b)(6) was not filed within a reasonabl e time. Finally, Swanson contends the district court erred in refusing to designatethe real party in in terest and abused its discretion when it refused to allow post-judgment discovery.

II

A Rule 60(b) motion serves to relieve a party from a final judgment, order, or proceeding for:

(1) mistake, inadvertence, surprise, or excusable neglect; (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); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduc t of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon wh ich it is based ha s been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.

Fed. R. Civ. P. 60(b).

"The motion shall be made within a r easonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken." F. R. Civ. P. 60(c). The rule "provides for extraordinary relief which may be granted only upon an ade quate showing of exceptional circumstances." United-5- States v. Young , 806 F.2d 805, 806 (8th Cir. 1986) (per curiam). The district court has wide discretion in ruling on a Rule 60(b) motion, and we will only reverse for a clear abuse of discretion. Sellers v. Mineta , 350 F.3d 706, 715-16 (8th Cir. 2003).

A

Swanson first argues the district c ourt erred when it concluded his Rule 60(b)(2) motion based on newly discovered evidence was untimely.

A motion to vacate under Rule 60(c) mu st be brought no more than one year after entry of the judgment. Fed. R. Civ. P. 60(b). The initial judgment was entered February 19, 2002, and the judgment am ending the damage award was entered November 21, 2003. The district court concluded the one-year limitations period began to run as of the date the initial judgment was entered. Swanson, however, argues the limitations period began to run after the amended judgment was entered. If the district court is correct, the motion was untimely; if Swanson is correct, the motion was timely.

Generally, we review a district court's denial of a Rule 60(b) motion for a clear abuse of discretion. Sellers , 350 F.3d at 715-16. With respect to Swanson's motion under Rule 60(b)(2), however, the district court's denial was based on purely legal grounds, i.e., when the one-year limitations period commenced. Therefore, we review the dismissal de novo. Indiana Lumbermens Mut. Ins. Co. v. Timberland Pallet and Lumber Co., Inc. , 195 F.3d 368, 374 (8th Cir. 1999).

Our court has yet to determine under what circumstances the entry of an amended judgment may restart the one-year limitations period mandated for Rule 60(b)(2) motions. Other courts and commentators, however, "have recognized that-6- a new, one-year period under Rule 60(b) might be triggered if [a] subsequent appellate ruling substantially alters the district c ourt's judgment in a manner that disturbs or revises the previous, plainly settled legal ri ghts and obligations of the parties." The Tool Box, Inc. v. Ogden City Corp. , 419 F.3d 1084, 1089 (10th Cir. 2005) (citing Berwick Grain Co. v. Ill. Dep't of Agric. , 189 F.3d 556, 559-60 (7th Cir. 1999); Simon v. Navon , 116 F.3d 1, 3 (1st Cir. 1997); Tran sit Cas. Co. v. Sec. Trust Co. , 441 F.2d 788, 791 (5th Cir. 1971); 11 Wright & Miller, § 2866, at 390-91)); see also Martha Graham Sch. and Dance Found. v. Martha Graham Ctr. of Contemporary Dance, Inc. , 466 F.3d 97, 100-01 (2d Cir. 2006).

In Martha Graham Sch. , the plaintiff brought suit arguing several copyright protected dance routines had been infringed by the defendant. 466 F.3d at 99. Following a bench trial, the district court c oncluded the plaintiff owned rights to fortyfive of the contested dances and th e defendant owned rights to one. Id. On November 4, 2002, the district court entered judgment implementing its findings. Id. On appeal, the Second Circuit held the ownership ri ghts to seven additi onal dances remained unresolved and reversed and remande d as to those routines. Id. at 100. An amended judgment changing the district court's findings as to those seven dances was entered in October 2004. Before ownership of the re maining seven dances could be resolved, the plaintiff filed Rule 60(b)(2) and (3) motions, based on newly discovered evidence and fraud, seeking to vacate th e November 2002 judgment. Id. The dances affected by the motions to vacate were routines w hose ownership had been covered in the initial judgment, and were unaffected by the appellate c ourt's decision amending the judgment. Id. at 101. Therefore, the court held the amended judgment "made no substantive change in [the parties'] legal position from thatestablished by the [initial] judgment of the district court" w ith respect to those dances. Id. Because the plaintiff's Rule 60(b) motions related only to issues decided by the initial judgment, which were unaffected by the amended judgment, the court of appeals held the limitations period began with entry of the first judgment and did not begin anew with the entry of the amended judgment. Id.-7- Swanson's Rule 60(b)(2) motion attacks the evidence upon which the jury's finding of liability was based. The ame nded judgment, however, left in place the jury's finding of tort liability and only alte red the award of damages. Nonetheless, Swanson argues the amended j udgment altered the rights and obligations of the parties because it reduced the verdict against hi m by $550,000. It is true the amended judgment substantially reduced the amount he owed, but issues of liability and damages are distinct, and the amended j udgment did not relieve Swanson of the obligation to pay damages based upon a fi nding he alienated D onna's affections. Accordingly, the amended judgment in no way altered, distur bed or revised the previous, plainly settled legal rights and ob ligations of the parties with respect to liability. Because Swanson's Rule 60(b )(2) motion only focuses on the issue of liability, we hold the one-year limitations pe riod for bringing the motion began to run when the February 19, 2002 judgment was entered, making the motion untimely.

B

Alternatively, Swanson argues hi s motion to vacate brought under Rule 60(b)(6)'s catch-all provision was filed within a reasonable amount of time after the judgment was entered, i.e., thirty-three months.

A district court has wide discretion in ruling on a Rule 60(b) motion and we will only reverse for a clear abuse of discretion. Sellers , 350 F.3d at 715-16.

We have held a motion to vacate ba sed on fraud by a non-party may be based on Rule 60(b)(6), but must be brought within a reasonable time. Lester v. Empire Fire and Marine Ins. Co. , 653 F.2d 353, 354 (8th Cir. 1981). We have further held, "absent special circumstances," it would be unreas onable to vacate a judgment based on third--8- party fraud after more than one year "when a similar mo tion based on fraud by a party would be barred by Rule 60(b)(3)" if brought after more than one year. Id. Here, Swanson argues there are special circumst ances present because Donna's testimony was vital to Richard's case, and Richard ha s assigned away his rights to the judgment.

The district court concluded these fact s did not amount to special circumstances or were not relevant to the motion to vacat e. We agree. Ev ery deception by a party or non-party sufficient to justify granting a mo tion to vacate is important – if not vital – to the outcome of a case. Therefore, while potentially important, Donna's untruthful testimony is not special or unique. Further, Richard's decision to wash his hands of the judgment, while unusual, has no impact on the merits of Swanson's motion to vacate. Accordingly, we find no basis to c onclude the district court abused its broad authority and affirm its denial of the Rule 60(b)(6) motion.

C

As for the remaining issues on appeal, i.e., designation of the real party in interest, and post-judgment discovery, we affirm the district court. The issue of the real party in interest was mooted by the la w firm's assignment of the judgment to the bankruptcy estate. Further, Swanson cannot overcome the time bar to filing his Rule 60(b) motion and additional discovery woul d not further his pursuit of the motion.

III

The judgment of the district court is affirmed.

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