[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DEC 27, 2006
No. 06-11671 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 01-00567-CV-2-FTM-29-DNF
LESLIE DAEDA, for herself individually,
ALISHA DAEDA, minor, by and through
her natural mother and guardian, Leslie Daeda,
Plaintiffs-Appellants,
versus
SCHOOL DISTRICT OF LEE COUNTY,
LEE COUNTY SCHOOL BOARD,
DEPARTMENT OF CHILDREN AND FAMILIES,
acting for and as an agency and department of
and for State of Florida, d/k/a DCF,
JOANNE LOEBER, as employees, agents and/or
representatives of DCF,
DAN MCCLEAN, as employees, agents and/or
representatives of DCF,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(December 27, 2006)
Before WILSON, PRYOR and HILL, Circuit Judges.
PER CURIAM:
The only issue in this appeal is whether or not the district court abused its
discretion when, on February 3, 2006, it denied appellants Leslie Daeda and Alisha
Daeda’s (collectively Daeda) amended motion for relief from judgment based upon
newly discovered clear and convincing evidence of fraud on the bases that Daeda’s
motion was untimely filed and failed to demonstrate entitlement to relief. The
facts of the underlying case are not at issue and will not be repeated here.1 A
limited review of the procedural history of the case is, however, appropriate.
On June 30, 2003, the district court entered summary judgment in favor of
appellees School District of Lee County, Department of Children and Families of
Lee County, Joanne Loeber and Dan McLean (School) and against Daeda. Daeda
filed a timely notice of appeal. It was ultimately dismissed for lack of prosecution
on September 10, 2003.
1
The amended complaint was filed under 42 U.S. C. § 1983 alleging sexual assault of a
minor by a substitute teacher.
2
On June 30, 2004, Daeda filed her first motion from relief from judgment
and motion to permit discovery requesting that the summary judgment order in
favor of School be vacated on the grounds of newly discovered evidence of fraud.
The district court denied the motion for relief from judgment on the basis that it
failed to meet meet the requirements of Fed.R.Civ.P 60(b).
On December 29, 2005, some thirty months after the entry of final summary
judgment, and eighteen months after denial of her original motion for relief, Daeda
filed a second, amended motion for relief. The arguments and evidence presented
in the amended motion were virtually identical to those raised in the original
motion. On February 3, 2006, the district court denied the amended motion for
relief on the grounds that it was untimely filed pursuant to Fed.R.Civ.P. 59 and 60.
It also found that Daeda had failed to meet the requirements necessary to warrant
the granting of extraordinary relief. That February 3, 2006, order is the limited
subject of this appeal.
Although captioned an “amended” motion, the court found that it had
decided the original motion in September, 2004, therefore there was nothing before
the court to be amended. Upon review of the record, we agree.
The district court characterized the amended motion as a Fed.R.Civ.P. 59
motion to alter or amend the judgment but denied it as untimely. Rule 59(e)
3
requires the motion to be filed “no later than 10 days after entry of the judgment.”
Fed.R.Civ.P. 59(e). Here, the motion was filed approximately thirty months after
entry of the judgment.
The district court found that even had the motion been timely filed within
the 10 day period, the matters asserted could not be properly considered because
they were an attempt to “relitigate old matters, raise argument or present evidence
that could have been raised prior to the entry of the judgment.” See Michael Linet,
Inc. v. Village of Wellington, Fla., 408 F.3d 757, 763 (11 th Cir. 2005). We agree.
If, however, a motion is filed after the ten day period, limited exceptions
exist. Fed.R.Civ.P. 60(b). Daeda claims that exceptions appear because summary
judgment was granted based upon misrepresentations so egregious as to amount to
a fraud upon the court. Under Rule 60(b), a court may relieve a party from final
judgment based upon mistake, inadvertence, surprise, excusable neglect, newly
discovered evidence or fraud, misrepresentation, or other misconduct of an adverse
party. Fed.R.Civ.P. 60(b).
To grant relief based upon newly discovered evidence under Rule 60(b)(2), a
movant must meet a five-part test: (1) the evidence must be newly discovered since
the trial; (2) due diligence on the part of the movant to discover the new evidence
must be shown; (3) the evidence must not be merely cumulative or impeaching; (4)
4
the evidence must be material; and (5) the evidence must be such that a new trial
would probably produce a new result.” See Toole v. Baxter Healthcare Corp., 235
F.3d 1307, 1316 (11 th Cir. 2000).
Upon careful review of the documents submitted, the district court found
that Daeda had not met the burdens required under Rule 60(b). After our separate
and thorough review of the record we conclude that the “newly discovered
evidence” was evidence that was available prior to the entry of the original
summary judgment in favor of School, so no exception is available. In addition,
the motion is untimely as Daeda failed to show exercise of due diligence in filing
the amended motion thirty months after judgment. There is no abuse of discretion
by the district court.
Based upon the foregoing discussion, the judgment of the district court
denying Daeda’s amended motion as untimely and without merit is
AFFIRMED.
5