attorney Michael E. Douglas Attorney at Law
  Personal Injury Attorney
  St. Paul Workers Compensation Lawyer work comp attorney
 > About Me
   :: My Commitment
   :: Our Community
 > Legal Practice Areas
  twin cities comsumer lawPersonal Injury
   :: Traffic Accidents
   :: Medical Malpractice
   :: Social Security Disability
   :: Premises Liability
   :: Wrongful Death
   :: Dog Bite
   :: Back/Spinal/Neck Injuries
   :: Whiplash
   :: Defective Medical Devices
   :: Defective Drugs
  Minnesota Personal InjuryWorkers Compensation
  St. Paul personal injuryConsumer Law
   :: Debt Collection
   :: Repossessions
   :: Foreclosures
   :: Loan, Credit, Banking
   :: Arbitration Agreements
   :: Deception and Fraud
   :: Auto Fraud / Lemon Law
   :: Warranties
   :: Predatory Lending
 > Contact Us
   :: Contact Us

Law Offices of Michael E. Douglas
P.O. Box 251551
Woodbury, Minnesota 55125-6551

 Saint Paul Lawyer


Jones v. Swanson: CIVIL PROCEEDURE - 60(b)(2) time limit for motion to amend; no abuse finding untimely under (b)(6)

1The Honorable Karen E. Schreier, United States District Judge for the District
of South Dakota.
United States Court of Appeals
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'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.
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 0,000. 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 0,000 (0,000 in compensatory and
0,000 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.
In the roughly two and one half years since the verdict, Swanson had
successfully avoided attempts to collect on the 0,000 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
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.
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.
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
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).
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
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.
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 0,000. 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.
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-
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.
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.
The judgment of the district court is affirmed.


  What day were you injured?

  / /

  What caused your injuries?
Traffic/Bicycle Accident
Work-Related Injury
Wrongful Death
Dog Bite
Slip and Fall

  How have your injuries affected

  your life?


  What kinds of medical care
  professionals have you seen?


  What has your treatment cost?


  Is Insurance Involved?
My insurance may cover

Someone else's insurance
        may cover this.

I already filed a claim.
I rejected a settlement

I accepted a settlement

  Were there any witnesses?
Bystanders Witnessed This.
Police Responded and Filed
        a Police Report

Police Responded but Did
        Not File a Police Report



          By visiting this page or clicking the
  "submit" button above, you agree
  that you have read and accept this   "disclaimer".
Copyright © Michael E. Douglas, Attorney at Law, Saint Paul MN. All Rights Reserved.
Minnesota Law Firm representing Personal Injury, Car / Auto Accident, Workers Compensation, Medical Malpractice, Social Security Disability claims.
Dedicated to Injured Workers, Victims of Negligence, Car Accidents, Victims of Fraud, and those in need of legal assistance.