Branca v. Security Ben. Life Ins. Co., No. 83-5514

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtPER CURIAM
Citation789 F.2d 1511
PartiesMaria Victoria BRANCA, a minor, and Fernando Javier Branca, a minor, by their parent, natural guardian, and next friend, Ana Maria Branca, Plaintiffs-Appellants, v. SECURITY BENEFIT LIFE INSURANCE COMPANY, a Kansas Corporation, Defendant-Appellee.
Docket NumberNo. 83-5514
Decision Date23 May 1986

Page 1511

789 F.2d 1511
4 Fed.R.Serv.3d 827
Maria Victoria BRANCA, a minor, and Fernando Javier Branca,
a minor, by their parent, natural guardian, and
next friend, Ana Maria Branca,
Plaintiffs-Appellants,
v.
SECURITY BENEFIT LIFE INSURANCE COMPANY, a Kansas
Corporation, Defendant-Appellee.
No. 83-5514.
United States Court of Appeals,
Eleventh Circuit.
May 23, 1986.

Marc Postelnek, Miami Beach, Fla., for plaintiffs-appellants.

William J. Gallwey, III, P.A., Shutts & Bowen, Miami, Fla., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Florida.

ON PETITIONS FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC

(Opinion Oct. 15, 1985, 11th Cir.1985, 773 F.2d 1158).

Page 1512

Before HILL, KRAVITCH and SMITH *, Circuit Judges.

PER CURIAM:

The panel opinion is modified by the following amendments. Section C of the opinion, 773 F.2d 1158, 1164 (11th Cir.1985), is stricken in its entirety and the following is substituted in its place.

The Brancas contend that the trial judge should have granted them a new trial under Fed.R.Civ.P. 60(b)(6). The rule states in relevant part:

(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (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.

The Brancas assert that an Argentine investigation of Fernando's disappearance resulted in the arrest and indictment of Admiral Emilio Massera, a member of the military junta in power when Fernando disappeared. They wish to issue letters rogatory to Massera under Fed.R.Civ.P. 28(b)(3). Our interpretation of the Brancas' argument is that this and other post-trial developments indicate new evidence is available which warrants a new trial. A motion on such grounds is specifically authorized by,...

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13 practice notes
  • Robinson v. Tanner, No. 85-7456
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 9 Septiembre 1986
    ...final order. Branca by Branca v. Security Benefit Life Insurance Co., 773 F.2d 1158, 1165 (11th Cir.1985), modified on other grounds, 789 F.2d 1511 (11th Cir.1986). This rule extends to orders compelling a party to submit to depositions. See Honig v. E.I. DuPont de Nemours & Co., 404 F.2d 4......
  • Miller v. Cudahy Co., Civ. A. No. 77-1212.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • 3 Marzo 1987
    ...that it would probably have produced a different outcome had it been presented initially. Branca v. Security Benefit Life Insurance Co., 789 F.2d 1511 (11th Cir.1986); Equal Employment Opportunity Commission v. Rath Packing Co., 787 F.2d 318, 331 (8th Cir.1986), cert. denied, ___ U.S. ___, ......
  • McKee v. Sullivan, No. 89-8328
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 22 Junio 1990
    ...findings of death are not. Branca by Branca v. Security Benefit Life Insur. Co., 773 F.2d 1158, 1163 (11th Cir.1985), modified by 789 F.2d 1511 (11th Cir.1986). However, a probate court's determination of the issues presented to an agency "is not to be completely ignored or discounted." Aub......
  • State v. Thompson, CA-CR
    • United States
    • Court of Appeals of Arizona
    • 28 Agosto 1990
    ...of a fact material to the case. See Branca v. Sec. Benefit Life Ins. Co., 773 F.2d 1158, 1161 (11th Cir.1985), modified on other grounds, 789 F.2d 1511 (11th 6 Because of our resolution of this case, we do not determine whether the admission of this evidence furthers the purposes of the rul......
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13 cases
  • Robinson v. Tanner, No. 85-7456
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 9 Septiembre 1986
    ...final order. Branca by Branca v. Security Benefit Life Insurance Co., 773 F.2d 1158, 1165 (11th Cir.1985), modified on other grounds, 789 F.2d 1511 (11th Cir.1986). This rule extends to orders compelling a party to submit to depositions. See Honig v. E.I. DuPont de Nemours & Co., 404 F.2d 4......
  • Miller v. Cudahy Co., Civ. A. No. 77-1212.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • 3 Marzo 1987
    ...that it would probably have produced a different outcome had it been presented initially. Branca v. Security Benefit Life Insurance Co., 789 F.2d 1511 (11th Cir.1986); Equal Employment Opportunity Commission v. Rath Packing Co., 787 F.2d 318, 331 (8th Cir.1986), cert. denied, ___ U.S. ___, ......
  • McKee v. Sullivan, No. 89-8328
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 22 Junio 1990
    ...findings of death are not. Branca by Branca v. Security Benefit Life Insur. Co., 773 F.2d 1158, 1163 (11th Cir.1985), modified by 789 F.2d 1511 (11th Cir.1986). However, a probate court's determination of the issues presented to an agency "is not to be completely ignored or discounted." Aub......
  • State v. Thompson, CA-CR
    • United States
    • Court of Appeals of Arizona
    • 28 Agosto 1990
    ...of a fact material to the case. See Branca v. Sec. Benefit Life Ins. Co., 773 F.2d 1158, 1161 (11th Cir.1985), modified on other grounds, 789 F.2d 1511 (11th 6 Because of our resolution of this case, we do not determine whether the admission of this evidence furthers the purposes of the rul......
  • Request a trial to view additional results

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