United States v. Metropolitan St. Louis Sewer District v. Mallinckrodt, Inc., Intervenor-AppellantUnited States v. Metropolitan St. Louis Sewer District v. Mallinckrodt, Inc., Intervenor-Appellant
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 parties. Over Mallinckrodt’s objections, the district court
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entered the Consent Decree. Thereafter, Mallinckrodt filed motions for reconsideration based on newly discovered evidence pursuant to
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
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 lai’ger portion of this Site consists of a 10-acre, roughly rectangular, parcel on which the drum reclamation facility was located. Mallinekrodt 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 fpr expansion of its secondary treatment facilities. However, MSD never built additional facilities, and its property remained vacant.
In early 2001, the EPA invited MSD and Mallinekrodt 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 Mallinekrodt, 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 Mallinekrodt 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 Mallinck-rodt’s. Mallinekrodt 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, Mal-linckrodt timely filed a
After the district court denied its
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.
A.
A district court has broad discretion in determining whether to grant or deny a motion to alter or amend judgment pursuant to
Mallinckrodt argues that the district court should have granted its motion for a new trial pursuant to
Third, Mallinckrodt suggests that this evidence is material, not cumulative, because it is the only evidence on the topic qf 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
The appellees respond by stating that Mallinckrodt has failed to show any of the four elements necessary to prevail under
We agree with the appellees. After reviewing the opinion of the district court, we find no abuse of discretion in denying Mallinckrodt’s
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 Mallinekrodt’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
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
B. Rule 60(b)(3) Motion 4
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,
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 ádding to the contamination. In 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
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 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 Mal-lickrodt 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,
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 ap-pellees. Therefore, the district court did not abuse its discretion in denying Mal-linckrodt’s Rule 60(b)(3) motion.
III. Conclusion
For the reasons stated above, the district court’s rulings on Mallinckrodt’s post-judgment motions are affirmed.
Notes
. The Honorable E. Richard Webber, United States District Judge for the Eastern District of Missouri.
. 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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. 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 ...”