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CERTAIN UNDERWRITERS OF LLOYD'S v. ST. JOE MINERAL

June 23, 1995

CERTAIN UNDERWRITERS OF LLOYD'S, LONDON, AND OTHER COMPANIES, subscribing to the insurance policies represented by Certificates No. CN55985/81, CN55986/81, HT9504, HT9505, HU9503, HU9504, HU9505, HW9503, HW9504, HW9505, C58/3963, C58/3972, UJL0169, UKL0640, Plaintiffs, against ST. JOE MINERALS CORPORATION, RENCO GROUP, INC., DOE RUN RESOURCES CORPORATION, and D.R. ACQUISITION CORP., Defendants.

Thomas J. McAvoy, Chief U.S. District Judge


The opinion of the court was delivered by: THOMAS J. MCAVOY

I. BACKGROUND

 Defendants previously brought a motion to dismiss this action on several grounds. On December 23, 1994, the court heard arguments on the motion and rendered an oral decision in which it dismissed the complaint without prejudice pursuant to Fed.R.Civ.P. 12(b)(6) because the case alleged was not currently a justiciable and ripe controversy upon which judgment could be rendered. This decision was summarized in an order dated February 25, 1995 after which judgment was entered by the Clerk of Court.

 Plaintiffs now seek reconsideration of this decision and seek to vacate the February 25, 1995 order pursuant to Fed.R.Civ.P. 59(b) and 60(b).

 II. ANALYSIS

 A. Standard for Reconsideration

 As both parties agree, a court is justified in reconsidering its previous ruling if: (1) there is an intervening change in the controlling law; (2) new evidence not previously available comes to light; or (3) it becomes necessary to remedy a clear error of law or to prevent obvious injustice. Larsen v. Ortega, 816 F. Supp. 97, 114 (D. Conn. 1992). In regard to the second possibility, newly discovered evidence presented in support of a motion for reconsideration must be of the type which, with due diligence, could not have been discovered by the appellants prior to entry of the judgment. Music Research, Inc. v. Vanguard Recording Soc'y, Inc., 547 F.2d 192, 196 (2d Cir. 1976); United States ex rel. Lynch v. Sandahl, 793 F. Supp. 787, 796 (N.D. Ill. 1992).

 "With regard to the third ground, the Court cautions that any litigant considering bringing a motion to reconsider based upon that ground should evaluate whether what may seem to be a clear error of law is in fact simply a point of disagreement between the Court and the litigant." Atkins v. Marathon LeTourneau Co., 130 F.R.D. 625, 626 (S.D. Miss. 1990). The motion for reconsideration is not a device "intended to give an unhappy litigant one additional chance to sway the judge." Durkin v. Taylor, 444 F. Supp. 879, 889 (E.D. Va. 1977). It is in light of this standard that the court decides whether to reconsider its February 25, 1995 order.

 B. Additional Policy Information

 Plaintiffs now seek to have the court examine additional policy evidence which they claim was inadvertently omitted from the papers they submitted in response to the original dismissal motion. They claim that incomplete copies of two of the excess liability policies in question were inadvertently attached as exhibits to the complaint, leading to a factual misunderstanding of the limits of those policies, which they believe resulted in an erroneous decision on the dismissal motion. Plaintiffs contend that the omitted portions of these policies set forth the underlying schedule of insurance showing that the policies provide coverage to St. Joe Minerals after the company has paid $ 25,000 of self-insured retention rather than after higher limits of insurance coverage have been exhausted. *fn1"

 Putting the substantive legal argument aside, the court must examine whether this can truly be considered "new evidence." The parties and the court agree that this additional information does not meet the requirements for "new evidence" as just outlined. However, plaintiffs insist that the court must consider this information now because they believe their omission resulted in a mistaken finding of fact which in turn led to an erroneous decision to dismiss this action.

 Plaintiffs rely, inter alia, on Continental Casualty Co. v. American Fidelity & Casualty Co., 186 F. Supp. 173, 180 (S.D. Ill. 1959) in which the court reconsidered its prior decision because it had overlooked certain policy provisions material to the issue in question. However, in that case, the court had previously been provided with the information and had made its decision without considering it, unlike this case in which plaintiffs did not provide the information until the reconsideration stage.

 Here, there is no reason why plaintiffs could not have provided the information at an earlier stage. Even if plaintiffs did not keep full copies of the policies they issued, St. Joe Minerals produced copies of their insurance policies in November 1993 in the California state court action. This case was not filed until August 24, 1994. Regardless of plaintiffs' argument, seeking to have this additional information considered at this time is to ask the court to consider evidence that should have been previously available to ...


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