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

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No. 07-1864

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Richard M. Jones, *

*

Plaintiff - Appellee, *

* Appeal from the United States

v. * District Court for the District 

* of South Dakota.

Todd V. Swanson, *

*

Defendant - Appellant. *

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Submitted: December 13, 2007

Filed: January 16, 2008

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Before BYE, ARNOLD, and MELLOY, Circuit Judges.

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BYE, Circuit Judge.

Todd V. Swanson appeals the district court's1

 order dismissing his motion to

vacate brought under Rule 60(b) of the Federal 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. 
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I

Richard M. Jones sued Swanson under South Dakota's alienation of affection

law, claiming Swanson's romantic involvement 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. Swanson 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 accepted the reduced verdict and the district

court entered an amended judgment on November 21, 2003.

In September 2004, Donna contacted Swanson asking to meet. The two met on

October 9, 2004, and at the meeting Swanson explained he did not intend to revive the

romance. Nonetheless, Donna told him 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 began, her relationship with Richard was

tenuous and the affair did not cause the marriage to fail.

 

After Donna's admission, Swanson agreed to meet with her in person. On

October 26, 2004, Swanson and Donna met to further discuss her trial testimony.

Donna reiterated her earlier admission, stating she had been untruthful at trial and had

lied to protect herself. On two occasions during the conversation, Donna asked to

speak with Swanson's attorneys and offered to help. Swanson surreptitiously recorded

the conversation.

 
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In the roughly two and one half years since the verdict, 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 events 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 testimony. 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 judgment in favor of Richard. The court also

concluded the Rule 60(b)(6) motion was untimely because it had not been made

within a reasonable time after entry of the first judgment. Finally, the court denied the

motion for declaration of the real party in interest as moot, concluding the judgment

had been assigned to Richard's bankruptcy estate.

 
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On appeal, Swanson argues the district court erred in concluding the one-year

limitations period for filing a motion under Rule 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 reasonable time. Finally, Swanson contends the

district court erred in refusing to designate the real party in interest 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 misconduct of an adverse party; (4) the

judgment is void; (5) the judgment has been satisfied, released, or

discharged, or a prior judgment upon which it is based has 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 reasonable 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 adequate showing of exceptional circumstances." United
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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 court 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) must 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 amending 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
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a new, one-year period under Rule 60(b) might be triggered if [a] subsequent appellate

ruling substantially alters the district court's judgment in a manner that disturbs or

revises the previous, plainly settled legal rights 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); Transit 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 concluded the plaintiff owned rights to fortyfive of the contested dances and the 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 rights to seven additional dances remained

unresolved and reversed and remanded 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 remaining 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 the November 2002 judgment. Id. The dances affected

by the motions to vacate were routines whose ownership had been covered in the

initial judgment, and were unaffected by the appellate court'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 that established by the [initial]

judgment of the district court" with 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.
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Swanson's Rule 60(b)(2) motion attacks the evidence upon which the jury's

finding of liability was based. The amended judgment, however, left in place the

jury's finding of tort liability and only altered the award of damages. Nonetheless,

Swanson argues the amended judgment altered the rights and obligations of the parties

because it reduced the verdict against him 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 judgment did not relieve Swanson of the

obligation to pay damages based upon a finding he alienated Donna's affections.

Accordingly, the amended judgment in no way altered, disturbed or revised the

previous, plainly settled legal rights and obligations 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 period for bringing the motion began to run

when the February 19, 2002 judgment was entered, making the motion untimely. 

B

Alternatively, Swanson argues his 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 based 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 unreasonable to vacate a judgment based on third-
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party fraud after more than one year "when a similar motion 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 circumstances present because Donna's testimony

was vital to Richard's case, and Richard has assigned away his rights to the judgment.

 

The district court concluded these facts did not amount to special circumstances

or were not relevant to the motion to vacate. We agree. Every deception by a party

or non-party sufficient to justify granting a motion 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 conclude 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 law 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 would not further his pursuit of the motion.

III

The judgment of the district court is affirmed.

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