Case: 14-11970   Date Filed: 01/07/2015   Page: 1 of 5


                                                        [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 14-11970
                       Non-Argument Calendar
                     ________________________

                 D.C. Docket No. 2:13-cv-00059-RWS



RONNIE P. DEWEESE,

                                                          Plaintiff-Appellant,

                                    versus

JP MORGAN CHASE BANK, N.A.,

                                                         Defendant-Appellee,

JOHN DOES 1-5,
STATE FARM BANK, FSB,

                                                        Defendants.

                     ________________________

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

                           (January 7, 2015)
              Case: 14-11970     Date Filed: 01/07/2015    Page: 2 of 5


Before MARCUS, WILLIAM PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:

      Ronnie DeWeese, pro se, appeals the denial of his Federal Rule of Civil

Procedure 59(e) (“Rule 59(e)”) motion to vacate, alter, or amend the judgment in

his lawsuit, commenced in Georgia state court to quiet title to certain real property,

and removed to federal district court, pursuant to 28 U.S.C. § 1332. DeWeese

argues that he presented new evidence which warranted granting the Rule 59(e)

motion, including: (1) a limited power of attorney (“POA”) naming JPMorgan

Chase Bank, N.A. (“JPMorgan”) as attorney-in-fact for the Federal Deposit

Insurance Corporation (“FDIC”) for purposes of executing certain asset transfers,

(2) a settlement agreement between the FDIC and JPMorgan from an unrelated

lawsuit, and (3) a complaint filed against the FDIC by JPMorgan in another

unrelated lawsuit.

      We review the district court’s denial of a motion to alter or amend a

judgment pursuant to Rule 59(e) for abuse of discretion. Arthur v. King, 

, 1343 (11th Cir. 2007). The only grounds for granting a Rule 59 motion are

newly-discovered evidence or manifest errors of law or fact. 

59(e)

motion cannot be used to raise arguments or present evidence that could have been

offered prior to the entry of judgment. 

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      While Rule 59(e) requires a motion to alter or amend a judgment be filed not

later than 28 days after entry of judgment, Rule 60 allows a motion by a party

seeking to be relieved from a final judgment to be made “within a reasonable

time,” but no more than a year after entry of the judgment if seeking relief on the

ground of newly discovered evidence. Fed.R.Civ.P. 59(e) and 60(c). Thus, a Rule

59(e) motion based on new evidence that is filed after the statutory deadline will be

construed as a motion seeking relief from the judgment pursuant to Federal Rule of

Civil Procedure 60(b) (“Rule 60(b)”). Mahone v. Ray, 

, 1177 n.1

(11th Cir. 2003).

      The judgment dismissing this case was entered on November 25, 2013, but

DeWeese did not file his motion for reconsideration until December 26, 2013,

more than 28 days later. Consequently, the motion will be construed as a Rule

60(b)(2) motion for relief from the final judgment on the ground of newly

discovered evidence. See 

n.1.

      We also review the district court’s denial of a Rule 60(b)(2) motion for

abuse of discretion. Willard v. Fairfield S. Co., 

, 821 (11th Cir.

2006). The appellant’s burden on appeal from the denial of a Rule 60(b) motion is

heavy. Cano v. Baker, 

, 1342 (11th Cir. 2006). It is not enough that

a grant of the Rule 60(b) motion might have been permissible or warranted;




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instead, the appellant must show a justification so compelling the district judge was

required to vacate the prior order. 

for the court to grant such a motion, the movant must show that:

(1) the new evidence was discovered after the judgment was entered; (2) he had

exercised due diligence in discovering that evidence; (3) the evidence was not

merely cumulative or impeaching; (4) the evidence was material; and (5) the

evidence was likely to produce a different result. 

      The district court did not abuse its discretion by denying DeWeese’s motion

for reconsideration. DeWeese alleged that his evidence was discovered after the

judgment was entered. However, two of the proffered documents existed prior to

the entry of judgment, and DeWeese failed to explain why he was unable to obtain

these documents earlier. Even assuming DeWeese made diligent efforts to obtain

the evidence prior to the entry of judgment, he failed to show that the evidence was

material or would produce a different result. 

.

       First, DeWeese lacked standing to challenge the validity of the assignment

which transferred his security deed to JPMorgan, because he was neither a party to

the assignment nor an intended third-party beneficiary. See GA. CODE ANN. § 9-2-

20 (a) (providing that “an action on a contract … shall be brought in the name of

the party in whom legal interest in the contract is vested, and against the party who

made it in person or by agent”), (b) (providing that the “beneficiary of a contract


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made between other parties for his benefit may maintain an action against the

promisor on the contract”). Second, in the settlement agreement with the FDIC,

JPMorgan did not disavow ownership of any assets which included DeWeese’s

security deed related to the subject property. Finally, JPMorgan did not take a

position in the separately filed complaint against the FDIC that was inconsistent

with the position it adopted in defending against DeWeese’s lawsuit. Accordingly,

the district court properly denied the motion for reconsideration because DeWeese

failed to show that the new evidence warranted vacating the prior order. See 

.

      Upon review of the record and careful consideration of the parties’ briefs,

we affirm.

      AFFIRMED.




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