                                                      [DO NOT PUBLISH]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.




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