YOSHIO OTO, Executor of the Estate of Noboru Oto v. Metropolitan Life Insurance Company

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-3112
YOSHIO OTO, Executor of the
Estate of Noboru Oto,
Plaintiff-Appellee,
v.
METROPOLITAN LIFE INSURANCE
COMPANY,
Defendant/Third-Party Plaintiff,
v.
ASHBY BEVERLEY,
Third-Party Defendant/Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 6666--Suzanne B. Conlon, Judge.
Argued June 1, 2000--Decided August 11, 2000
Before Bauer, Easterbrook and Manion, Circuit Judges.
Bauer, Circuit Judge. Suzanne Oto’s father and
husband both claim the proceeds from her life
insurance policy. The District Court ruled that
the change of beneficiary form purporting to
change the beneficiary from the father to the
husband was a forgery and granted summary
judgment for Noboru Oto, the father. Ashby
Beverley, the husband, appeals. We affirm the
District Court.
I. BACKGROUND
On November 1, 1989, Noboru Oto purchased a
$250,000 life insurance policy on the life of his
daughter, Suzanne M. Oto ("Suzanne"), from
Metropolitan Life Insurance Company. Oto was a 79
year-old-widower. Suzanne was unmarried and
worked as her father’s bookkeeper. Oto was the
policy’s owner and primary beneficiary and paid
all of the policy’s premiums until Suzanne’s
death on March 22, 1998.
Unbeknownst to Oto, on February 19, 1997, a

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change of beneficiary form was executed. Although
it bore his signature, Oto did not sign it./1
The form, sent to MetLife, changed ownership of
the policy from Oto to Suzanne. It also changed
the beneficiary from Oto to Ashby Beverley,
Suzanne’s then-boyfriend.
Suzanne and Beverley subsequently married.
Although the record does not tell us when they
were married, it was only five days before her
death from breast cancer that Suzanne notified
MetLife that she had married and her name was now
Suzanne Beverley.
After Suzanne’s death, both Oto and Beverley
made claims to MetLife for the proceeds of the
policy. Relying solely on the 1997 change of
beneficiary form, MetLife refused payment to Oto.
Oto sent MetLife an affidavit denying that he
signed the change of beneficiary form and denying
that he authorized any change in the ownership or
beneficiary of the policy. However, MetLife still
refused to pay him. He then brought this action
against MetLife, seeking a declaration that the
signature on the change of beneficiary form was
a forgery and for the recovery of the proceeds of
the policy. MetLife brought a third party action
against Beverley and later deposited a check for
the amount of the proceeds with the court,
leaving Oto and Beverley to fight over the money.
At the same time that Oto was litigating this
case he was also locked in conflict in state
court with Beverley. The dispute was over the
ownership of Oto’s house. Beverley claimed that
Oto signed a quit claim deed which gave the house
to Suzanne and that the house passed to him upon
Suzanne’s death. Oto denied ever having signed
the deed and claimed that the signature was a
forgery./2
During the pendency of the state court case,
Oto gave a deposition and was questioned
regarding the signature on the change of
beneficiary form in this case. He denied signing
it. He also denied authorizing any change in the
ownership or the beneficiary of the policy.
Before his deposition could be taken in this
case, Oto died and his brother was substituted as
plaintiff./3 Relying on the affidavit, the
previous deposition testimony and the opinion of
a handwriting expert, Oto moved for summary
judgment. His motion was granted by the District
Court. Beverley brought two motions for
reconsideration, but both were denied. He appeals
to us, claiming nine errors, ranging from errors
committed by the District Court in considering
some of Oto’s evidence and errors in failing to
consider some of his evidence, to claims that

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material issues of fact exist and that the
District Court was simply wrong for entering
judgment against him and in denying his motions
for reconsideration. We must determine whether
there exists any genuine issue of material fact
and whether Oto is entitled to judgment as a
matter of law. We believe that there is not and
that he is.
II. DISCUSSION
We review the District Court’s grant of summary
judgment under the familiar de novo standard,
drawing all reasonable inferences in favor of the
non-movant. Vakharia v. Swedish Covenant
Hospital, 190 F.3d 799, 805 (7th Cir. 1999);
Johnson v. Zema Systems Corp., 170 F.3d 734, 742
(7th Cir. 1999). In order to overcome summary
judgment, Beverley must show specific facts
sufficient to raise a genuine issue for trial.
See Fed.R.Civ.Pro. 56(c); Vakharia, 170 F.3d at
805. "A genuine issue for trial exists only when
a reasonable jury could find for the party
opposing the motion based on the record as a
whole." Roger v. Yellow Freight System, Inc., 21
F.3d 146, 149 (7th Cir. 1994).
A. Evidentiary Issues
Oto relies on three pieces of evidence to
establish that his signature was forged on the
change of beneficiary form: an affidavit in which
he states that he neither authorized a change in
the beneficiary of the policy nor signed the
form, a deposition in which he testifies he did
not sign any documents transferring ownership of
the policy to his daughter or beneficiary status
to Beverley, and the opinion of a handwriting
expert that the signature on the change of
beneficiary form is a forgery. Beverley
challenges each of these. Those evidentiary
challenges require only a brief discussion.
Beverley argues that the District Court should
not have considered Oto’s affidavit in ruling
upon the motion for summary judgment because the
affidavit is inadmissible hearsay. Oto’s
affidavit stated in pertinent part:
--I have since become aware that a Standard
Change of Beneficiary Form was submitted to
MetLife which attempts to change the ownership of
the policy to Suzanne Oto and the beneficiary to
Ashby Beverley. I have now been furnished with a
copy of that document by MetLife which
purportedly has my signature on it. A copy of
that which I was furnished is attached to this
affidavit as Exhibit "I."

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--I did not sign Exhibit "I."
--I did not sign any Standard Change of
Beneficiary Form.
--I did not authorize any change of ownership,
nor did I authorize a change of beneficiary of
the policy in question.
Beverley claims that this affidavit is
inadmissible hearsay because Oto ("the dead
plaintiff") is unavailable to testify and because
he "never had an opportunity to cross-examine him
about the affidavit." This latter argument is
clearly rebutted by the facts in the record. Oto
was deposed in the state court action and
Beverley’s attorney questioned him about the
signature on the change of beneficiary form:
Q. Okay. Mr. Oto, I am showing you what has been
marked as Defendant’s Exhibit No. 1. This is a
Metropolitan Life standard change of beneficiary
form. And I am going to ask you, is that your
signature on that form dated 2/19/97?
A. No.
Q. Do you know whose signature that is?
A. No.
Q. Have you ever seen this document before?
A. No.
Q. Didn’t you sign a document signing over
ownership of your daughter’s life insurance
policy to her?
A. No.
As this colloquy makes clear, Beverley’s attorney
did have an opportunity, and in fact did,
question Oto on the substance of his affidavit.
His argument in that regard fails.
Beverley’s other argument, that the affidavit
should not have been considered by the District
Court in ruling on the motion for summary
judgment because Oto is now unavailable to
testify, is actually a challenge to the
affidavit’s admissibility at trial. To mix the
two would require us to read a "cross-
examination" requirement into Rule 56 that is not
there. Certainly, the affidavit would not be
admissible at trial unless he were able to cross-
examine Oto as to its contents. A motion for
summary judgment brought under Federal Rule of
Civil Procedure 56, however, has no such
requirement. Rule 56 merely provides for the

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submission of affidavits in support of or
opposition to a motion for summary judgment. As
long as the affidavit meets the requirements of
subsection (e), it can be considered by the
District Court in ruling on the motion, much the
same that answers to interrogatories or
depositions (which may contain inadmissible
material) can be considered by the court. Since
Oto’s affidavit was "in the precise form"
contemplated by Rule 56, was made under oath and
based upon his personal knowledge, we hold that
the District Court did not err in considering its
contents in ruling on the motion for summary
judgment.
As for Beverley’s objection to the District
Court’s reliance on Oto’s deposition testimony
for the same reasons, we simply note that the
deposition qualifies as former testimony of a now
unavailable witness under Federal Rule of
Evidence 804(b)(1). Beverley’s other attack on
the deposition, that it is unreliable because the
copy of the transcript in the record includes as
Exhibit 1 an application for insurance, rather
than the disputed change of beneficiary form, is
equally meritless. It is abundantly clear from
the questioning during the deposition that there
was no misunderstanding as to what document was
being discussed. It was referred to by both name
and date in counsel’s question (see above). This
error in the marking or attachment of this
exhibit does not cause us to overturn the
District Court’s grant of summary judgment for we
do not believe it confused anyone or caused the
District Court to enter an improper judgment.
B. Genuine Issues Of Material Fact
Beverley’s next series of arguments focus on
evidence he believes create a genuine issue of
material fact precluding summary judgment. He
points to portions of Oto’s deposition testimony
in which Oto testified that he did not remember
whether he "ever signed any papers for
Metropolitan Life with respect to [his]
daughter’s life insurance policy" and that he did
not have any "assets." It is not surprising that
Oto, a survivor of the World War II relocation
camps, did not know that the life insurance
policy was an asset. He probably did not have the
financial sophistication to know that the policy
was an asset. Nor did he likely have the business
acumen to recall what papers he signed in
connection with the life insurance policy.
Clearly, there would have been many papers to be
signed in applying for the policy and we do not
believe that he remembered what all of those
papers were. Regardless of what papers were
involved, we believe he would have remembered
authorizing the change of the ownership and

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beneficiary of the policy. And that was the
import of the question. Oto’s testimony
unequivocally established that he had done
nothing to remove himself as owner or beneficiary
of the policy. We do not believe that either of
these facts championed by Beverley establish a
genuine issue of material fact.
Beverley also attempts to overturn the judgment
in favor of Oto by pointing to the deposition
testimony of Oto’s handwriting expert. Oto’s
expert examined twelve known signatures of Oto,
including the signature on his affidavit and a
signature taken from him during his deposition,
and compared them to the signatures on the change
of beneficiary form and the quit claim deed. She
concluded that the signatures on the disputed
documents were not written by Oto. In short, she
concluded they were forgeries. She prepared a
written report to that effect and gave similar
testimony during her deposition. However, the
transcript that was prepared contained an answer
that said the person who signed the 12 known
signatures "is" the same person who signed the
change of beneficiary form at issue in this case.
The expert corrected her testimony on the errata
sheet and added the word "not," putting her
testimony back in line with her previously
disclosed opinions. Beverley argues that this one
misstatement or typographical error is enough to
preclude summary judgment. We disagree and see it
for what it is, either a misstatement or a
typographical error. All of the expert’s opinions
had been consistent: the change of beneficiary
form and quit claim deed were not signed by Oto.
It would hardly make sense for her to maintain
that opinion in all places except for one
sentence in a multi-page deposition. As such, we
agree with the District Court that the one
statement by the handwriting expert was not
enough to create a genuine issue of material
fact.
C. Motion For Reconsideration
Beverley brought two motions for
reconsideration. The District Court denied both.
To prevail on a motion for reconsideration under
Rule 59, the movant must present either newly
discovered evidence or establish a manifest error
of law or fact. LB Credit Corp. v. Resolution
Trust Corp., 49 F.3d 1263, 1267 (7th Cir. 1995).
A "manifest error" is not demonstrated by the
disappointment of the losing party. It is the
"wholesale disregard, misapplication, or failure
to recognize controlling precedent." Sedrak v.
Callahan, 987 F.Supp. 1063, 1069 (N.D. Ill.
1997). Contrary to this standard, Beverley’s
motions merely took umbrage with the court’s

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ruling and rehashed old arguments. They did not
demonstrate that there was a disregard,
misapplication or failure to recognize
controlling precedent. As such, they were
properly rejected by the District Court.
Beverley, in addition to contending that the
court was wrong to deny his motions, contends
that the District Court abused its discretion in
refusing to consider the "newly discovered"
evidence presented in the form of an affidavit
attached to one of the motions. This "newly
discovered" evidence was an affidavit from an
former Oto employee stating that he was familiar
with Oto’s signature, had reviewed the change of
beneficiary form and believed that signature to
be Oto’s.
A party may not use a motion for
reconsideration to introduce new evidence that
could have been presented earlier. Caisse
Nationale de Credit Agricole v. CBI Industries,
Inc., 90 F.3d 1264, 1269 (7th Cir. 1996). Beverley
tells us that he discovered this witness only by
"sheer coincidence." The District Court rejected
this "new evidence," stating that Beverley made
no showing why, through reasonable diligence, he
could not have located this witness earlier.
We wonder the same thing. The lawsuit was filed
in September, 1998 and Beverley did not locate
this employee until nine months later, more than
two months after discovery closed. He claims it
is because Oto’s death made it impossible to
learn the identities of his employees. We do not
believe that is a valid excuse as he could have
asked Oto for the names of former employees
during Oto’s deposition or he could have
subpoenaed Oto’s business records. Given the ease
with which either of these things could have been
done, it cannot be said that Beverley exercised
due diligence. All of the arguments and facts in
this case were or should have been available to
Beverley prior to the District Court’s original
ruling. Therefore, the District Court did not
abuse its discretion is refusing to receive new
evidence at this late stage.
Beverley’s motions for reconsideration did
little more than rehash old arguments. Rule 59 is
not a vehicle for rearguing previously rejected
motions and, as that is what Beverley attempted
to do, we affirm the District Court’s denial of
those motions./4
III. CONCLUSION
Oto’s motion for summary judgment was properly
granted because there existed no genuine issue of
material fact that the signature on the change of

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beneficiary form was a forgery. All of the
evidence submitted to the District Court bore
this out. Beverley’s contentions that the
evidence relied upon by the District Court was
inadmissible and that questions of fact exist are
not supported by the record. For those reasons,
we affirm the judgment of the District Court.
AFFIRMED.
/1 Suzanne signed the form as a witness, but her
untimely death makes it impossible for her to
tell us who actually signed the change of
beneficiary form.
/2 Cook County Circuit Court Judge Lester Foreman
held, in Case No. 98 CH 1770, that the signature
purporting to be Noboru Oto’s on the quit claim
deed was indeed a forgery.
/3 Our references to "Oto" when discussing the facts
continue to refer to Noboru Oto and not his
brother and executor, Yoshio Oto.
/4 Beverley also presents an argument that the
District Court abused its discretion in striking
his affidavit. We find that no abuse of
discretion occurred.

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