Gencorp, Inc. v. Olin Corp.

• Decision Date: 12 February 2007
• Docket Number: No. 05-4439.,05-4439.
• Citation: 477 F.3d 368
• Parties: GENCORP, INC., Plaintiff-Appellant, v. OLIN CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

477 F.3d 368

GENCORP, INC., Plaintiff-Appellant, v. OLIN CORPORATION, Defendant-Appellee.

No. 05-4439.

United States Court of Appeals, Sixth Circuit.

Argued: December 6, 2006.

Decided and Filed: February 12, 2007.

ARGUED: Michael L. Hardy, Thompson Hine, Cleveland, Ohio, for Appellant.

Peter Buscemi, Morgan, Lewis & Bockius, Washington, D.C., for Appellee. ON BRIEF: Michael L. Hardy, Brian A. Troyer, Anthony J. Rospert, Thompson Hine, Cleveland, Ohio, for Appellant. Peter Buscemi, Ralph N. Albright, Jr., Thomas J. O'Brien, Wade B. Wilson, Morgan, Lewis & Bockius, Washington, D.C., for Appellee.

Before SUTTON and GRIFFIN, Circuit Judges; COHN, District Judge.^*

OPINION

SUTTON, Circuit Judge.

After a protracted trial and an unsuccessful appeal to this court, GenCorp filed a Rule 60(b)(6) motion asking the district court to set aside a judgment in favor of Olin Corporation on the basis of Cooper Industries v. Aviall Services, Inc., 543 U.S. 157, 125 S.Ct. 577, 160 L.Ed.2d 548 (2005). GenCorp also asked the district court to stay execution of the judgment. The district court denied both motions. We affirm.

I.

In the 1960s, GenCorp and Olin built a chemical-processing plant in Ohio and stored the hazardous waste generated by the plant at two different sites. Although the agreement between the companies originally contemplated placing the plant under GenCorp's sole control, Olin ultimately retained ownership of the plant. In 1985, the Environmental Protection Agency (EPA) notified Olin that it was a "potentially responsible party" under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) for the clean-up of "Big D," one of the two disposal sites. After negotiations failed, the EPA issued two unilateral administrative orders under CERCLA § 106, 42 U.S.C. § 9606—one for each site. The orders established "remedial design and remedial action" plans for the sites and required Olin to comply with them. JA 167. The government also brought a civil action against Olin under CERCLA § 107, 42 U.S.C. § 9607, seeking "reimbursement of the response costs which it ha[d] incurred in conducting a response action" at Big D. JA 281. In addition, the complaint asked for a declaratory judgment that Olin would "be liable for all future costs incurred by the United States . . . in conjunction with the response activities at the Big D Campground Site." JA 286.

This action began in 1993 when GenCorp requested a declaratory judgment disclaiming any CERCLA liability for the clean-up costs of the sites. Olin counterclaimed, seeking contribution for its response costs under CERCLA § 1 13(f), 42 U.S.C. § 9613(f), and arguing that GenCorp should be jointly and severally liable for the response costs under CERCLA § 107(a), id. § 9607(a). In 1995, GenCorp agreed to dismiss its declaratory judgment action, after which the parties litigated Olin's counterclaims. GenCorp also amended its response to Olin's counterclaim, adding the claim that Olin had breached its contract to insure the plant.

The district court eventually dismissed Olin's claim for joint and several liability under § 107, reasoning that as a potentially responsible party Olin's recourse lay in the contribution provision of CERCLA § 113(f). See Centerior Serv. Co. v. Acme Scrap Iron & Metal Corp., 153 F.3d 344, 356 (6th Cir.1998). The district court then held a bench trial and ruled for Olin on its contribution claim on May 9, 2002. The district court concluded that GenCorp was responsible for 30% of the clean-up costs of Big D and 40% of the costs for the other site, leading to a judgment against GenCorp (and in favor of Olin) for $19 million in contribution costs and $9.7 million in prejudgment interest.

GenCorp asked the court to reconsider its decision based on "the plain language of § 113(f)(1)," arguing that a potentially responsible party like Olin could seek contribution only "during or following any civil action" under CERCLA § 106 or § 107. JA 257; 42 U.S.C. § 9613(f)(1). Claiming that Olin had not been subject to such a civil action, GenCorp argued that "[t]he express language of the statute bars Olin's contribution claim." JA 257. GenCorp acknowledged that the Sixth Circuit had not confronted the issue before and that district courts had taken conflicting positions on it. GenCorp also noted that the Sixth Circuit case most on point—Centerior—"did not undertake to define the scope and limits of the contribution action itself," JA 259, and that the Fifth Circuit had recently issued a decision favoring GenCorp's interpretation of section 113(f)(1), see Aviall Servs., Inc. v. Cooper Indus., 263 F.3d 134, 137 (5th Cir.2001). The district court rejected GenCorp's motion. It noted that the Fifth Circuit had since vacated and reversed the panel decision, see Aviall Servs., Inc. v. Cooper Indus., Inc., 312 F.3d 677 (5th Cir.2002) (en banc), and reasoned that the final sentence of section 113(f)(1) assured that potentially responsible parties could proceed with contribution claims even in the absence of a civil action. See 42 U.S.C. § 9613(f)(1).

After rejecting GenCorp's motion for reconsideration, the district court entered a final judgment for Olin on its contribution claim under Civil Rule 54(b). The district court stayed consideration of GenCorp's breach-of-contract claim pending the resolution of a dispute between Olin and its insurers in the District Court for the Southern District of New York.

On appeal, GenCorp did not raise the issue presented in its motion for reconsideration. Our court rejected the issues that GenCorp did present on appeal and ultimately affirmed the judgment with one reservation. GenCorp, Inc. v. Olin Corp., 390 F.3d 433 (6th Cir.2004). We held that the statutory language of CERCLA § 113(g)(2) required a district court to enter a declaratory judgment as to future costs if a claimant succeeds in a contribution suit, but that such a judgment necessarily was limited by Article III's "case or controversy" requirement. Id. at 451. "[U]nable to find sufficient evidence of future response costs," we remanded the case to the district court "for initial consideration of whether a `case or controversy' exists, and if so, for the entry of a declaratory judgment." Id.

After the Sixth Circuit issued its decision on November 22, 2004, GenCorp petitioned for rehearing en banc. At that point, it pressed the "civil action" argument for the first time in the court of appeals, noting that the Supreme Court had granted certiorari to the Fifth Circuit on the question. See Cooper Indus., Inc. v. Aviall Servs., Inc., 540 U.S. 1099, 124 S.Ct. 981, 157 L.Ed.2d 811 (2004). On December 13, 2004, the Supreme Court announced its decision in Cooper Industries, 543 U.S. 157, 125 S.Ct. 577, 160 L.Ed.2d 548, holding that § 113(f)(1) authorized contribution actions only when the claimant had been subject to a "civil action" under sections 106 or 107. Our court thereafter denied GenCorp's petition for rehearing en banc, and the Supreme Court thereafter denied GenCorp's petition for a writ of certiorari, GenCorp, Inc. v. Olin Corp., ___ U.S. ___, 126 S.Ct. 420, 163 L.Ed.2d 320 (2005).

On remand, GenCorp filed a Rule 60(b)(6) motion asking the district court to set aside the judgment based on the Supreme Court's decision in Cooper Industries and filed a Rule 62(h) motion asking the court to stay execution of the underlying judgment against it. The district court denied both motions on November 3, 2005. GenCorp asked this Court to stay execution of the judgment pending appeal, which this Court denied on November 18. On November 21, GenCorp satisfied the judgment, and five days later the district court discharged the supersedeas bond. GenCorp appeals the district court's orders denying its Rule 60(b)(6) and Rule 62(h) motions.

II.

We review the denial of both motions for abuse of discretion. See Browder v. Director, Dep't of Corr., 434 U.S. 257, 263 n. 7, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978); Arban v. West Publ'g Corp., 345 F.3d 390, 408-09 (6th Cir.2003). That standard is met, we have held, when we have a "definite and firm conviction that the trial court committed a clear error of judgment." Blue Diamond Coal Co. v. Trs. of UMWA Combined Benefit Fund, 249 F.3d 519, 524 (6th Cir.2001) (internal quotation marks omitted).

A.

When a district court enters a judgment, the Federal Rules give the losing party several types of recourse: The party may ask the court to amend its findings or make additional findings, see Fed.R.Civ.P. 52(b); it may seek a new trial, see Fed. R.Civ.P. 59(a); it may seek to alter or amend the judgment, see Fed.R.Civ.P. 59(e); and it may file an appeal of right, see Fed.R.App.P. 4(a).

Even after a judgment has become final and even after an appeal has been lost, Civil Rule 60(b) gives losing parties additional, narrow grounds for vacating the judgment:

(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.

Most of the grounds for relief relate to, if not require, new information about the case that could not reasonably have been discovered earlier. See, e.g., Abrahamsen v. Trans-State Exp., Inc., 92 F.3d 425, 428 (6th Cir.1996); United Coin Meter Co., Inc. v. Seaboard Coastline R.R., 705 F.2d 839, 844-46 (6th Cir.1983). And the "public policy favoring finality of judgments" limits the availability of relief under the rule. Waifersong...