United States District Court, W.D. Oklahoma
AGI CONSULTING L.L.C., by Assaf Al-Assaf as Trustee/Owner/Plan Administrator of an Alleged Non-Integrated Defined Benefit Plan, Plaintiff,
AMERICAN NATIONAL INSURANCE COMPANY, Defendant.
Charles B. Goodwin, United States District Judge.
before the Court is the Motion for a New Trial filed by
Plaintiff AGI Consulting L.L.C., by Assaf Al-Assaf as
Trustee/Owner/Plan Administrator of an Alleged Non-Integrated
Defined Benefit Plan, pursuant to Federal Rules of Civil
Procedure 59(a)(1)(B) and 59(a)(2). See Pl.'s
Mot. (Doc. No. 18). Defendant American National Insurance
Company has responded in opposition (Doc. No. 19), and
Plaintiff has replied (Doc. No. 20).
30, 2018, the Court granted Defendant's Motion to Dismiss
after Plaintiff confessed that its cause of action for fraud
against Defendant was time-barred. See Order of July
30, 2018 (Doc. No. 16) (West, J.). The Court further denied
Plaintiff's request, set forth in its response to
Defendant's Motion to Dismiss, to amend its complaint,
after finding that amendment would be futile because
Plaintiff's proposed claims for rescission, reformation,
and breach of contract would likewise be untimely under Okla.
Stat. tit. 12, § 95. See id. at 12.
has now moved the Court to vacate its Order and Judgment
(Doc. Nos. 16, 17) entered on July 30, 2018, and permit
Plaintiff to file an amended complaint alleging claims for
breach of fiduciary duty against Defendant under the Employee
Retirement Income Security Act, 29 U.S.C. § 1001 et
seq., as amended (“ERISA”). See
Pl.'s Reply ¶ 23 (Plaintiff's “sole
purpose [in filing the Motion for a New Trial is] to amend
its Complaint to [set forth] an ERISA cause of action for
breach of a fiduciary duty”).
support of its motion, Plaintiff has relied on Federal Rules
of Civil Procedure 59(a)(1)(B) and (a)(2). These rules
provide, respectively, that the Court “may . . . grant
a new trial . . . after a nonjury trial, for any reason for
which a rehearing has heretofore been granted in a suit in
equity in federal court” and “may, on motion for
a new trial, open the judgment if one has been entered, take
additional testimony, amend findings of fact and conclusions
of law or make new ones, and direct the entry of a new
judgment.” Fed.R.Civ.P. 59(a)(1)(B), (a)(2).
has been no trial, nonjury or otherwise, in this matter,
however. Neither Rule 59(a)(1)(B) nor Rule 59(a)(2),
therefore, applies as a method for challenging the
Court's Order and Judgment. See Soto v. Bd. of Cty.
Comm'rs of Caddo Cty., No. CIV-16-416-F, 2017 WL
6551295, at *1 (W.D. Okla. Oct. 4, 2017).
instant motion is more properly characterized as a motion to
alter or amend the Court's Order and Judgment under
Federal Rule of Civil Procedure 59(e), which permits relief
in certain “limited circumstances.” Hayes
Family Tr. v. State Farm Fire & Cas. Co., 845 F.3d
997, 1004 (10th Cir. 2017). See Soto, 2017 WL
6551295, at *1 (Fed. R. Civ. P. 59(e) is “appropriate
vehicle to review the court's order and judgment”
after court has granted a motion to dismiss under
Fed.R.Civ.P. 12(b)(6)). Those circumstances include
“(1) an intervening change in the controlling law, (2)
[when] new evidence previously [was] unavailable, and (3) the
need to correct clear error or prevent manifest
Hayes Family Tr., 845 F.3d at 1004 (alterations in
original) (quoting Servants of the Paraclete v.
Does, 204 F.3d 1005, 1012 (10th Cir. 2000)). See
Monge v. RG Petro-Mach. (Grp.) Co., 701 F.3d 598, 611
(10th Cir. 2012) (quoting Webber v. Mefford, 43 F.3d
1340, 1345 (10th Cir. 1994) (“‘purpose of [Fed.
R. Civ. P. 59(e)] motion is to correct manifest errors of
law'”)). While a Rule 59(e) motion “is not
appropriate to revisit issues already addressed or [to]
advance arguments that could have been raised in prior
briefing, ” relief under this rule may be available if
a “court has misapprehended the facts, a party's
position, or the controlling law.” Servants of the
Paraclete, 204 F.3d at 1012 (citation omitted).
has stated, “[b]y way of explanation and not as an
excuse, ” that “when Plaintiff [first] sought to
amend its [c]omplaint, Plaintiff was not clear about the fact
that [r]escission, [r]eformation, and [b]reach of [c]ontract
all presuppose the existence of a contract and therefore
ERISA would apply.” Pl.'s Mot. ¶ 9. Plaintiff
has argued that the Court nevertheless should have understood
that Plaintiff was seeking relief under ERISA in its proposed
amended complaint and not under state law for rescission,
reformation, and breach of contract (as Plaintiff had
argued), and more particularly should have recognized that,
because Defendant was a fiduciary, it was charged with the
duties imposed by 29 U.S.C. § 1104(a) and that Plaintiff
was seeking relief under 29 U.S.C. § 1109 for breach of
has contended that if the Court had done so, it would have
applied 29 U.S.C. § 1113, the statute applicable
“to actions brought to redress a fiduciary's breach
of its obligations to enforce the provisions of ERISA,
” Trs. of Wyo. Laborers Health & Welfare Plan
v. Morgen & Oswood Constr. Co., 850 F.2d 613, 618
n.8 (10th Cir. 1988) (citation omitted), as opposed to Okla.
Stat. tit. 12, § 95, and Plaintiff's proposed claims
would have been deemed timely. See Pl.'s Mot.
¶¶ 6, 8-9, 13.
has conceded, however, that it did not “raise the
application of ERISA” in response to Defendant's
argument that amendment would be futile, (b) acknowledge in
its submissions that it was seeking relief under ERISA, or
(c) cite § 1113. Id. ¶ 8. Plaintiff has
argued that despite “this lack of clarity” in its
pleadings and papers, the Court should now vacate its Order
and Judgment and permit Plaintiff to file an amended
complaint, this time “clearly stat[ing] an ERISA [claim
and] statute of limitations . . . .” Id.
¶¶ 9, 32.
the Court's and the parties' reliance on a state
statute of limitations (and failure to address whether ERISA
had pre-empted Defendant's proposed state law
claims) may be deemed a manifest error of law or
a misapprehension of the controlling law that warrants
revisitation, the Court reconsiders the matter to determine
whether amendment as proposed by Plaintiff would be
U.S.C. § 1113
1113 provides that “[n]o action may be commenced . . .
with respect to a fiduciary's breach of any
responsibility, duty, or obligation, ”
after the earlier of-
(1) six years after (A) the date of the last action which
constituted a part of the breach or violation, or (B) in the
case of an omission the latest date on which the fiduciary