Branca v. Security Ben. Life Ins. Co.

Decision Date23 May 1986
Docket NumberNo. 83-5514,83-5514
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.
CourtU.S. Court of Appeals — Eleventh Circuit

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).

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, and thus we treat as made under Fed.R.Civ.P. 60(b)(2).

[1, 2] To obtain a new trial based on such a motion, the movant must demonstrate that the evidence was discovered after trial, that due diligence was shown, and that the evidence was neither cumulative nor impeaching but actually material and likely to produce a new result. See Johnson Waste Materials v. Marshall, 611 F.2d 593, 597 (5th Cir.1980). We find strong indication from the record that appellants have satisfied the Rule 60(b)(2) requirements. The availability of this evidence obviously surfaced after completion of the trial. Furthermore, the subsequent indictment of Massera for his role in the insured's disappearance demonstrates that new evidence exists and provides adequate support for the assertion that letters rogatory and further discovery will uncover this new evidence and perhaps lead to additional evidence of the fact and date of the insured's death.

With respect to the question of due diligence, appellants could not rationally be faulted for not seeking the letters rogotary before trial. The insured disappeared in Argentina in 1977, during a period in which thousands of Argentinians were kidnapped by the military junta ruling under martial law. The junta was in power throughout the course of this trial. The trial had already concluded when the junta admitted to widespread killing of innocent people. Prior to that time, the Argentine government refused to give any information about these disappearances. Thus, up to and throughout the trial there was no reason for appella...

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13 cases
  • Robinson v. Tanner, 85-7456
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • September 9, 1986
    ...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 410 (5t......
  • Miller v. Cudahy Co., Civ. A. No. 77-1212.
    • United States
    • U.S. District Court — District of Kansas
    • March 3, 1987
    ...must be such 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, _......
  • McKee v. Sullivan
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • June 22, 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
    • United States
    • Arizona Court of Appeals
    • August 28, 1990
    ...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 Cir.1986).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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