Mamberto Real v. Michael Perry

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14496
Non-Argument Calendar
____________________
MAMBERTO REAL,
Plaintiff-Appellant,
versus
MICHAEL PERRY,
Individual capacity,
Defendant-Appellee,
CITY OF FORT MYERS,
Official capacity,
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2 Opinion of the Court 21-14496
Defendant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 2:18-cv-00331-JES-NPM
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Before BRANCH, ANDERSON and DUBINA, Circuit Judges.
PER CURIAM:
Appellant Mamberto Real appeals from the district court’s
order denying his Federal Rule of Civil Procedure 60(b)(2) motion
for a new trial based on newly discovered evidence. Real argues
that his motion for a new trial should have been granted because it
offered newly discovered evidence that he saw a witness for the
defense speak with members of the jury during a break in his trial.
Having read the parties’ briefs and reviewed the record, we affirm
the district court’s order denying Real’s motion for a new trial.
I.
We review a district court’s treatment of a motion for new
trial under a deferential abuse of discretion standard.
Dear v. Q
Club Hotel, LLC, 933 F.3d 1286, 1301 (11th Cir. 2019) (citation
omitted). Thus, to overturn the denial of such a motion, “it is not
enough that a grant of the motion[] might have been permissible
or warranted; rather, the decision to deny the motion[] must have
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21-14496 Opinion of the Court 3
been sufficiently unwarranted as to amount to an abuse of discre-
tion.”
Griffin v. Swim-Tech Corp., 722 F.2d 677, 680 (11th Cir.
1984). We generally disfavor motions for new trial based on newly
discovered evidence.
Dear, 933 F.3d at 1301 (citation omitted).
II.
Rule 60(b)(2) allows a court to grant relief from a final judg-
ment due to newly discovered evidence which, by due diligence,
could not have been discovered in time to move for a new trial
under Rule 59(b). Fed. R. Civ. P. 60(b)(2). Relief pursuant to Rule
60(b) is an extraordinary remedy, and the moving party must meet
strictly the requirements of the rule.
Crapp v. City of Miami Beach,
242 F.3d 1017, 1019-20 (11th Cir. 2001). The moving party must
meet the following five-part test: (1) the evidence must be newly
discovered since the trial; (2) the movant used due diligence to dis-
cover the new evidence; (3) the evidence is not merely cumulative
or impeaching; (4) the evidence is material; and (5) the evidence is
such that a new trial would probably produce a new result.
Toole
v. Baxter Healthcare Corp., 235 F.3d 1307, 1316 (11th Cir. 2000).
III.
The record demonstrates that the district court did not
abuse its discretion in denying Real’s motion because Real’s prof-
fered evidence in the motion was not newly discovered. Thus,
Real did not meet the requirements for the district court to grant
his motion for a new trial. Real’s motion relies on evidence of a
defense witness’s contact with his trial jury. However, this is not
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4 Opinion of the Court 21-14496
newly discovered evidence because the jury rendered a verdict af-
ter Real allegedly saw the witness with the jurors. Real had the
opportunity to raise his concerns at trial but he did not. Thus, his
evidence does not qualify as newly discovered. Moreover, Real has
not demonstrated that the witness’s alleged contact with the jurors,
if brought to the attention of the district court, would have yielded
a different result in the outcome of his trial.
Real cannot satisfy the requirements to show that the district
court should have granted his motion for a new trial; thus, he can-
not show that the district court abused its discretion. Accordingly,
based on the aforementioned reasons, we affirm the district court’s
order denying Real’s motion for a new trial.
AFFIRMED.
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