Maria Karla Terraza v. Safeway Inc. et al

Filing 248

ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION AND DENYING DEFENDANT AON HEWITT INVESTMENT CONSULTING INC.'S MOTION IN LIMINE NUMBER TWO by Judge Jon S. Tigar denying 213 Motion in Limine; denying 236 Motion to Reconsider the Court's Order. (wsnS, COURT STAFF) (Filed on 5/1/2019)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MARIA KARLA TERRAZA, Plaintiff, 8 9 10 United States District Court Northern District of California 11 v. SAFEWAY INC., et al., Defendants. Case No. 16-cv-03994-JST ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION AND DENYING DEFENDANT AON HEWITT INVESTMENT CONSULTING INC.’S MOTION IN LIMINE NUMBER TWO Re: ECF Nos. 213, 236 12 13 Two matters remain for decision before the trial of this matter begins on May 7, 2019. 14 First, at the final pretrial conference, the Court took under submission defendant Aon Hewitt 15 Investment Consulting, Inc.’s (“Aon”) Motion in Limine Number Two. ECF Nos. 213 (motion), 16 244 (pretrial conference transcript) at 37. Second, after the pretrial conference, plaintiff Maria 17 Terraza filed a motion for reconsideration of that portion of the Court’s summary judgment order 18 barring Plaintiff from proceeding with her breach of fiduciary duty claims against Aon regarding 19 the Interest Income Fund and Chesapeake Core Growth Fund. ECF No. 236. For the reasons set 20 forth below, the Court DENIES both motions. 21 Aon’s Motion in Limine Number Two (ECF No. 213) 22 In Aon’s Motion in Limine Number Two, it asks the Court to “preclud[e] evidence and 23 argument by Plaintiff that Aon (1) breached any duty it may or may not have owed the Plan with 24 respect to Plan administration, including recordkeeping and participant disclosures, (2) breached 25 its duty of loyalty, or (3) failed to comply with Plan documents.” ECF No. 213 at 2. The core of 26 Aon’s motion is a request that Aon not be charged with a breach of its fiduciary duty because of 27 any failure to advise with respect to the reasonableness of recordkeeping fees incurred by the 28 Safeway 401(k) Plan (“Plan”). Id. at 2 n.1. Aon notes that its consulting agreement with 1 defendant Safeway, Inc., does not include any provision for the monitoring of, or advice 2 concerning, recordkeeping fees. Id. at 3; ECF No. 216-4 (Master Consulting Agreement). 3 Plaintiff acknowledges that Aon had no contractual duty to monitor the reasonableness of 4 the Plan’s recordkeeping fees. And Plaintiff’s counsel conceded at the pretrial conference that “it 5 is not the case that if you’re a fiduciary for one purpose, you’re a fiduciary for all purposes.” ECF 6 No. 244 at 21. Nonetheless, the Court will deny the motion. Because recordkeeping fees were a 7 component of the costs associated with the assets offered to the Plan (and considered by Aon), the 8 Court cannot exclude the possibility that such fees had an effect on the returns realized by the 9 Plan. If they had no effect, then the Court will rule in Aon’s favor on this issue at trial. But the 10 matter cannot be resolved in limine. Accordingly, this motion is denied. United States District Court Northern District of California 11 Plaintiff’s Motion for Reconsideration (ECF No. 236) 12 Terraza asks the Court to reconsider its prior ruling granting summary judgment to Aon 13 regarding the Plan’s holdings in the Interest Income Fund and the Chesapeake Core Growth Fund. 14 ECF No. 236. In the alternative, Terraza asks the Court to allow her to amend the SAC to add 15 claims concerning these funds. Id. A party bringing a motion for reconsideration must demonstrate diligence and at least one 16 17 of the following: 18 1. That at the time of the motion for leave, a material difference in fact or law exists from that which was presented to the Court before entry of the interlocutory order for which reconsideration is sought. The party also must show that in the exercise of reasonable diligence the party applying for reconsideration did not know such fact or law at the time of the interlocutory order; or 19 20 21 22 2. The emergence of new material facts or a change of law occurring after the time of such order; or 23 3. A manifest failure by the Court to consider material facts or dispositive legal arguments which were presented to the Court before such interlocutory order. 24 25 26 Civ. L.R. 7-9(b).1 Terraza’s motion demonstrates none of these. 27 28 Reconsideration is also appropriate if “if the district court . . . committed clear error or the initial decision was manifestly unjust.” Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 2 1 1 Terraza makes two arguments in support of reconsideration. First, she argues that her 2 second amended complaint (“SAC”) adequately put Aon on notice that the Interest Income Fund 3 and Chesapeake Core Growth Fund were two bases for Plaintiff’s breach of fiduciary duty claims. 4 The Court previously rejected this argument in its order granting Aon’s motion for summary 5 judgment. ECF No. 224 at 4-5. “Reconsideration [is not] to be used to ask the Court to rethink 6 what it has already thought.” Gray v. Golden Gate Nat’l Recreational Area, 866 F. Supp. 2d 7 1129, 1132 (N.D. Cal. 2011) (citations omitted). 8 9 Second, she argues that even if these claims were not adequately pled in the SAC, Aon was on notice that the Interest Income Fund and Chesapeake Core Growth Fund were at issue because they produced discovery as to those funds and defended the issues related to those funds on the 11 United States District Court Northern District of California 10 merits, and Aon would not be prejudiced by Terraza’s challenging those funds at trial. ECF No. 12 236 at 6-8. Because Terraza did not make this argument in opposition to the motion for summary 13 judgment, the Court declines to consider it here. A motion for reconsideration “may not be used 14 to present new arguments or evidence that could have been raised earlier.” Adidas Am., Inc. v. 15 Payless Shoesource, Inc., 540 F. Supp. 2d 1176, 1180 (D. Or. 2008) (citing Fuller v. M.G. 16 Jewelry, 950 F.2d 1437, 1442 (9th Cir. 1991)). 17 18 19 20 21 In the alternative, Terraza asks for leave to amend the SAC to add claims concerning these funds pursuant to Rule 15(b)(2) of the Federal Rules of Civil Procedure. That rule provides: When an issue not raised by the pleadings is tried by the parties’ express or implied consent, it must be treated in all respects as if raised in the pleadings. A party may move – at any time, even after judgment – to amend the pleadings to conform them to the evidence and to raise an unpleaded issue. 22 Fed. R. Civ. P. 15(b)(2). Here, there has been no express consent, because Aon actively opposes 23 the amendment. Nor is there implied consent. When a party has objected to the introduction of 24 evidence on a new issue, as Aon has here, “the opposing party cannot . . . seek to amend the 25 pleadings to conform to the evidence on the ground that the party impliedly consented to the trial 26 of that issue.” 6A Arthur R. Miller, Mary Kay Kane & A. Benjamin Spencer, Federal Practice & 27 28 1255, 1263 (9th Cir. 1993). That standard is not satisfied here. 3 1 Procedure § 1493 (3d ed. 1998); see also Eller v. Trans Union, LLC, 739 F.3d 467, 480 (10th Cir. 2 2013) (implied consent “plainly” not shown when defendant “consistently objected to [plaintiff’s] 3 attempts to discuss” disputed issue at trial); Fanning v. Potter, 614 F.3d 845, 851 (8th Cir. 2010) 4 (implied consent not shown when defendant addressed plaintiff’s claim “only to argue that she had 5 withdrawn that claim by failing to plead it, and to request that if the district court permitted her to 6 amend her complaint to include this claim, then the [defendant] should be allowed to submit 7 supplemental briefing”). Thus, Rule 15(b)(2) does not apply. 8 Plaintiff’s motion for reconsideration is denied. 9 IT IS SO ORDERED. 10 United States District Court Northern District of California 11 12 Dated: May 1, 2019 ______________________________________ JON S. TIGAR United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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