              Case: 13-11988   Date Filed: 11/07/2013   Page: 1 of 5


                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 13-11988
                            Non-Argument Calendar
                          ________________________

                    D.C. Docket No. 1:12-cv-00066-MP-GRJ



MARK C. JACKSON,

                                                              Plaintiff-Appellant,

                                    versus

THE HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY,

                                                             Defendant-Appellee.

                          ________________________

                  Appeal from the United States District Court
                      for the Northern District of Florida
                        ________________________

                               (November 7, 2013)

Before MARCUS, MARTIN and FAY, Circuit Judges.

PER CURIAM:

      Mark C. Jackson appeals, pro se, the district court’s grant of summary

judgment and denial of a new trial in his breach of contract suit against Hartford
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Life and Accident Insurance Company (Hartford) for failing to pay his claim under

an accidental death policy. Hartford denied his claim because it did not believe

that Jackson’s mother died by accident, independent of all other causes.            On

appeal, Jackson argues that: (1) the district court’s order granting summary

judgment in favor of Hartford violated the “fundamental fairness doctrine,”

deprived him of Due Process, and violated his Seventh Amendment right to a jury

trial; and (2) the district court abused its discretion by denying his motion for a

new trial, which violated his right to a jury trial. After careful review, we affirm.

      We review the district court’s grant of summary judgment de novo. Morales

v. Zenith Ins. Co., 714 F.3d 1220, 1226 (11th Cir. 2013). Evidentiary decisions are

reviewed for abuse of discretion. Corwin v. Walt Disney Co., 475 F.3d 1239, 1249

(11th Cir. 2007). Similarly, we review the denial of a motion for a new trial for

abuse of discretion. Moore v. Appliance Direct, Inc., 708 F.3d 1233, 1237 (11th

Cir. 2013). To the extent that a motion for a new trial may be treated as a motion

to alter or amend the final judgment pursuant to Fed.R.Civ.Proc. 59(e), we also

review for abuse of discretion. Sanderlin v. Seminole Tribe of Fla., 243 F.3d 1282,

1285 (11th Cir. 2001). Pro se pleadings are held to a less stringent standard than

pleadings drafted by an attorney and are liberally construed. Tannenbaum v.

United States, 148 F.3d 1262, 1263 (11th Cir. 1998).




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      First, we are unpersuaded by Jackson’s claim that the district court erred in

granting summary judgment. The district court may grant summary judgment to a

movant if “there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed.R.Civ.Proc. 56(a). We review the

evidence presented at summary judgment and construe the facts in favor of the

non-moving party. Morales, 714 F.3d at 1226. Evidence that is inadmissible at

trial cannot be used to avoid summary judgment. Corwin, 475 F.3d at 1249.

Further, we are not required to take testimony as true if that testimony is not based

on personal knowledge. Id.

      Here, because Jackson has not provided any admissible evidence to carry his

burden to establish that his mother’s death was accidental, see New York Life Ins.

Co. v. Coll, 568 So.2d 1306, 1307 (Fla. Dist. Ct. App. 1990) (holding that, for

provisions covering accidental death, the beneficiary bears the burden to prove that

the death was accidental), there was no a genuine dispute of material fact. For

starters, there was no admissible evidence that the trailer was excessively hot

because, first, evidence that the air conditioner was not functioning was based on

speculation and, second, the information derived from the website, Weather

Source, was based on inadmissible hearsay. Furthermore, because there was no

evidence that his mother suffered from diabetes, the information from the Mayo

Clinic website defining diabetic ketoacidosis was irrelevant. As for Jackson’s


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attempt to suggest his mother had diabetes or over-heated through the assertion

that she had coffee and sugar in her stomach at the time of death was not based on

admissible evidence; the medical examiner testified that it was a mere possibility.

Moreover, the photograph of his mother apparently attempting to lift her shirt is

insufficient on its own to allow a jury to find that his mother died of heat

exhaustion or heat stroke. Thus, Jackson failed to provide any admissible evidence

to create a genuine dispute of any material facts that would entitle him to relief

under the policy.

      As for Jackson’s claim regarding his right to a jury trial, it is well-settled that

the grant of summary judgment does not deprive a party of his Seventh

Amendment right to a jury trial. Zivojinovich v. Barner, 525 F.3d 1059, 1066

(11th Cir. 2008). Therefore, we affirm the district court’s grant of summary

judgment in favor of Hartford.

      Nor are we convinced by Jackson’s argument that the district court abused

its discretion by denying his motion for a new trial. To begin with, the Federal

Rules of Civil Procedure only permit a grant of a new trial if there was a trial in the

first place -- jury or nonjury. See Fed.R.Civ.Proc. 59(a)(1).            Thus, because

Jackson’s motion for a new trial came after the district granted summary judgment,

the requisite trial did not occur, and the district court did not abuse its discretion by

denying the motion.


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      As for the merits of the motion, a litigant “cannot use a Rule 59(e) motion to

relitigate old matters, raise argument or present evidence that could have been

raised prior to the entry of judgment.”         Michael Linet, Inc. v. Village of

Wellington, Fla., 408 F.3d 757, 763 (11th Cir. 2005). Similar to the motion to alter

or amend the judgment in Michael Linet, Jackson’s motion was “essentially a

motion to reconsider the district court’s prior summary judgment order.” Id. His

motion implicated already-presented evidence and arguments. As a result, the

district court did not abuse its discretion by denying his motion.

      AFFIRMED.




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