Administrative Committee of the Northrop Grumman Savings Plan v. Lankford

Filing 65

ORDER by Judge Philip A. Brimmer on 4/24/15. ORDERED: The Estate of Terry T. Lankford's Motion for Summary Judgment and Request for Court to Release Funds Held in the Court Registry [Docket No. 43] is GRANTED. ORDERED: Administrative Committee of the Northrop Grumman Savings Plan is dismissed from this action. ORDERED: The Estate of Terry T. Lankford and Kenneth Foy Lankford are hereby realigned in this action such that the Estate of Terry T. Lankford is now the plaintiff and Kenneth Foy Lankford is now the defendant. ORDERED: Administrative Committee of the Northrop Grumman Savings Plan is discharged from any liability concerning the death benefit proceeds due or payable from the Administrative Committee of the Northrop Grumman Sa vings Plan under Terry T. Lankford's Northrop Grumman Savings Plan Account. ORDERED: Judgment is entered in favor of the Estate of Terry T. Lankford and against Kenneth F. Lankford. ORDERED: On or before May 15, 2015, Administrative Committee o f the Northrop Grumman Savings Plan shall file a motion for attorney's fees. The Estate of Terry T. Lankford shall file a response no later than June 5, 2015. Administrative Committee of the Northrop Grumman Savings Plan's reply, if any, shall be filed on or before June 12, 2015. ORDERED: Within fourteen days of this order, Administrative Committee of the Northrop Grumman Savings Plan shall file a bill of costs with the Clerk of the Court. ORDERED After resolution of Administrative Committee of the Northrop Grumman Savings Plan's motion for attorney's fees and Bill of Costs, the Clerk of the Court shall disburse all funds currently held in the Court registry, including all interest accrued, less the registry fee asse ssment, as follows: 50% to the estate of Clara M. Trout, and 50% to Richard W. Trout. ORDERED: The Estate of Terry T. Lankford shall file contact information, including street addresses, for Richard W. Trout and the estate of Clara M. Trout under Level 1 Restriction. ORDERED: This case is closed.(kpreu)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 14-cv-00536-PAB-MJW
ADMINISTRATIVE COMMITTEE OF THE NORTHROP GRUMMAN SAVINGS PLAN,
Plaintiff,
v.
KENNETH FOY LANKFORD and
THE ESTATE OF TERRY T. LANKFORD,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on the Motion for Summary Judgment and
Request for Court to Release Funds Held in the Court Registry [Docket No. 43] filed by
defendant The Estate of Terry T. Lankford (the “Estate”). The Court has jurisdiction
pursuant to 29 U.S.C. § 1132(e)(1). No party has responded to the Estate’s motion,
and plaintiff Administrative Committee of the Northrop Grumman Savings Plan (“the
Plan”) takes no position on the motion. Docket No. 43 at 1.
I. BACKGROUND
This case concerns the disbursement of funds from the retirement account (the
“account”) of Terry T. Lankford (“Ms. Lankford”). Ms. Lankford named her husband,
defendant Kenneth Lankford, as the primary beneficiary of the account. Docket No. 431 at 3. In addition, Ms. Lankford named three secondary beneficiaries, Clara Trout
(25%), Richard Trout (25%) and Timothy Lankford (50%). Id. On October 9, 2014,
Timothy Lankford disclaimed his 50% interest in the account. Docket No. 43 at 2, ¶ 5;

see also Docket No. 43-1 at 9-11. Clara Trout passed away on October 17, 2014, and
Carla Trout was named executor of her estate. Docket No. 43 at 3, ¶ 8.
Ms. Lankford died in November 2013 from gunshot wounds. Docket No. 43-1 at
1. Her death was ruled a homicide. Id. On November 10, 2013, Kenneth Lankford
was arrested and charged with Ms. Lankford’s murder. Docket No. 43 at 3, ¶ 9; see
also Docket No. 43-1 at 15. On February 26, 2014, the Plan initiated this action by
filing a complaint in interpleader. See Docket No. 1. The Plan claimed that, on
November 22, 2013, it received a fax from a law firm representing Ms. Lankford’s
family. Docket No. 1 at 3, ¶ 14. The fax requested that no distributions be made from
the Plan “given her murder by her husband and concerns about possible duress in
selecting the beneficiaries” and contended that, because Kenneth Lankf ord had been
charged with Ms. Lankford’s murder, he lacked a valid and enforceable beneficiary
interest in the account’s proceeds. Id. ¶¶ 14-15. In light of the conflicting claims to the
account’s proceeds, the Plan requested leave to deposit the balance of the account,
together with interest accrued, to the Clerk of the Court. Id. at 4. On August 11, 2014,
the Plan deposited the account funds into the Court Registry. Docket No. 43 at 3, ¶ 12.
Kenneth Lankford did not answer or otherwise respond to the complaint, and the Clerk
of the Court entered default as to Kenneth Lankford on December 16, 2014. Docket
No. 42.
On August 21, 2014, Kenneth Lankford pled guilty to Ms. Lankford’s murder and
was sentenced to life imprisonment without parole. Docket No. 43 at 3, ¶ 10; see also
Docket No. 43-1 at 21-22. On December 19, 2014, Magistrate Frances Renae Johnson

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of the District Court for the County of El Paso, Colorado granted Carla Trout’s “Motion
for Determination that Kenneth Foy Lankford Committed a Felonious Killing and May
Not Received Statutory Benefits, Distribution of Estate Assets, or Other Property
Pursuant to C[olo]. R[ev]. S[tat]. 15-11-803” in a probate action regarding Ms.
Lankford’s estate. Docket No. 43-1 at 23.
II. STANDARD OF REVIEW
Summary judgment is warranted under Federal Rule of Civil Procedure 56 when
the “movant shows that 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. P. 56(a); see Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A disputed f act is “material” if
under the relevant substantive law it is essential to proper disposition of the claim.
Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only disputes
over material facts can create a genuine issue for trial and preclude summary
judgment. Faustin v. City & Cnty. of Denver, 423 F.3d 1192, 1198 (10th Cir. 2005). An
issue is “genuine” if the evidence is such that it might lead a reasonable jury to return a
verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir.
1997).
However, “[w]hen, as in this case, the moving party does not bear the ultimate
burden of persuasion at trial, it may satisfy its burden at the summary judgment stage
by identifying a lack of evidence for the nonmovant on an essential element of the
nonmovant's claim.” Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th
Cir. 2001) (quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998))

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(internal quotation marks omitted). “Once the moving party meets this burden, the
burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a
material matter.” Concrete Works of Colo., Inc. v. City & Cnty. of Denver, 36 F.3d 1513,
1518 (10th Cir. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
By failing to file a response to defendants’ summary judgment motion, the Plan
“waive[d] the right to respond or to controvert the facts asserted in the summary
judgment motion.” Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002). However,
the Court is nonetheless required to “make the specific determinations required by
[Rule 56 and] properly grants summary judgment pursuant to Rule 56 only if the motion
demonstrates no genuine issue of material fact exists and the movant is entitled to
judgment as a matter of law.” Id. at 1196.
III. ANALYSIS
A. Appropriateness of Interpleader
“Interpleader is a form of joinder open to one who does not know to which of
several claimants it is liable.” Amoco Prod. Co. v. Aspen Group, 59 F. Supp. 2d 1112,
1114 (D. Colo. 1999) (citation omitted). “An interpleader action typically proceeds in
two stages. During the first stage, the court determines whether the stakeholder has
properly invoked interpleader, including whether the court has jurisdiction over the suit,
whether the stakeholder is actually threatened with double or multiple liability, and
whether any equitable concerns prevent the use of interpleader. . . . During the second
stage, the court determines the respective rights of the claimants to the fund or property
at stake via normal litigation processes, including pleading, discovery, motions, and

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trial.” U.S. v. High Tech. Prods., Inc., 497 F.3d 637, 641 (6th Cir. 2007) (citation
omitted).
Neither party has formally requested that the Court perform its first stage
analysis. Although typically the party who files a complaint in interpleader requests
such relief by filing a formal motion, “[t]here is no set procedure for conducting the first
stage of interpleader.” 7 Charles Wright, Arthur Miller & Mary Kane, Fed. Practice &
Procedure § 1714 (3d ed. 2001). Accordingly, the Court construes the Estate’s motion
for summary judgment as including a motion that the Court find that the Plan properly
invoked interpleader.
The Court first finds that it has jurisdiction over this action, as the Plan initiated
this action in its role as fiduciary to determine the proper disbursement of the proceeds
of the account. See Metro. Life Ins. Co. v. Price, 501 F.3d 271, 277 (3d Cir. 2007)
(holding that the court had federal question subject matter jurisdiction over interpleader
action brought by ERISA plan fiduciary to “ensur[e] that funds are disbursed to the
proper beneficiary”) (citation omitted).
Next, the Court finds that the Plan was “actually threatened with double or
multiple liability.” High Tech. Prods., Inc., 497 F.3d at 641; see also Indianapolis Colts
v. Mayor and City Council of Baltimore, 733 F.2d 484, 486 (7th Cir. 1984) (noting that a
complaint in interpleader requires the court to decide “whether the stakeholder
legitimately fears multiple vexation directed against a single fund”) (citation omitted).
The Plan alleged, and the Estate admitted,1 that it received a fax from a law firm

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Docket No. 31 at 2, ¶ 14.
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representing Ms. Lankford’s family that informed the Plan that Kenneth Lankford had
been charged with Ms. Lankford’s murder and that asked the Plan not to make any
disbursements from the account. Docket No. 1 at 3, ¶¶ 14-15. At the tim e the Plan
initiated this action, Kenneth Lankford had not yet been convicted and sentenced.
Compare Docket No. 1 (complaint dated February 26, 2014), with Docket No. 43-1 at
21-22 (sentence order dated August 21, 2014). Thus, the Plan reasonably feared
exposure to claims from multiple parties whose interests were adverse to one another.
The Plan, therefore, properly invoked interpleader.
B. The Estate’s Motion
The Court, having reviewed the Estate’s uncontested motion and supporting
documents, finds that it is undisputed that Kenneth Lankf ord has forfeited his interest in
the account. Colo. Rev. Stat. § 15-11-803(3)(a) provides that a felonious killing of a
decedent revokes any “disposition or appointment of property made by the decedent to
the killer in a governing instrument.” A felonious killing is conclusively established after
“all right to appeal has been waived or exhausted following the entry of a judgment of
conviction establishing criminal accountability for the felonious killing of the decedent[.]”
Id. § 15-11-803(7)(a). The District Court for the County of El Paso, Colorado
recognized that Kenneth Lankford’s felonious killing of Ms. Lankford forfeited any
interest he had in any of the assets of Ms. Lankford’s estate. Docket No. 43-1 at 23.

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The Court takes judicial notice of this order2 and concludes that Kenneth Lankf ord’s
interest in the account has been extinguished.
The Court further finds that it is undisputed that Timothy Lankford disclaimed his
50% interest as a secondary beneficiary in the account. Docket No. 43 at 2, ¶ 5; see
also Docket No. 43-1 at 9-11. In Colorado “[a] person m ay disclaim, in whole or in part,
any interest in or power over property[.]” Colo. Rev. Stat. § 15-11-1205(1). “To be
effective, a disclaimer shall be in writing or other record, declare the disclaimer,
describe the interest or power disclaimed, be signed by the person making the
disclaimer, and be delivered or filed . . . in the manner provided for in section 15-111212.” Id. § 15-11-1205(3). 3 The Court finds that Timothy Lankford’s disclaimer
satisfies all of the requirements of § 15-11-1205(3). The disclaimer is in writing, signed
by Timothy Lankford, declares the disclaimer, describes Timothy Lankford’s interest as
secondary beneficiary in 50% of the account, and was delivered to the personal
representative of Ms. Lankford’s estate. See Docket No. 43-1 at 9-11.
Because Kenneth Lankford has forfeited his interest in the account and Timothy
Lankford has disclaimed his 50% interest as a secondary beneficiary, the estate of
Clara M. Trout and Richard W. Trout each own a 50% interest in the proceeds of the

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St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172
(10th Cir. 1979) (“federal courts, in appropriate circumstances, may take notice of
proceedings in other courts, both within and without the federal judicial system, if those
proceedings have a direct relation to matters at issue”) (citations omitted).
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Section 15-11-1212(3) provides that a disclaimer shall either be “delivered to the
personal representative of the decedent’s estate[,]” or, “[i]f no personal representative is
then serving, a disclaimer shall be filed with a court having jurisdiction to appoint a
personal representative.”
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account; they were each named beneficiaries entitled to 25% of the account’s
proceeds, and each is entitled to one half of the 50% interest that Timothy Lankford
disclaimed.
C. Attorney’s Fees
As part of its prayer for relief, the Plan requests an award of reasonable
attorney’s fees and costs associated with initiating this action. Docket No. 1 at 5. In its
answer, the Estate objected to any award of attorney’s fees and costs because the
Plan’s “governing documents do not provide for attorney fees and costs to be deducted
from the Plan account for an interpleader action.” Docket No. 31 at 3. Releasing the
funds held in the Court registry before the resolution of the Plan’s request for attorney’s
fees would be premature. Accordingly, the Court will require that the Plan file a motion
for attorney’s fees on or before May 15, 2015.
IV. CONCLUSION
For the foregoing reasons, it is
ORDERED that The Estate of Terry T. Lankford’s Motion for Summary Judgment
and Request for Court to Release Funds Held in the Court Registry [Docket No. 43] is
GRANTED. It is further
ORDERED that Administrative Committee of the Northrop Grumman Savings
Plan is dismissed from this action. It is further
ORDERED that The Estate of Terry T. Lankford and Kenneth Foy Lankford are
hereby realigned in this action such that the Estate of Terry T. Lankford is now the
plaintiff and Kenneth Foy Lankford is now the defendant. It is further

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ORDERED that Administrative Committee of the Northrop Grumman Savings
Plan is discharged from any liability concerning the death benefit proceeds due or
payable from the Administrative Committee of the Northrop Grumman Savings Plan
under Terry T. Lankford’s Northrop Grumman Savings Plan Account. It is further
ORDERED that judgment is entered in favor of the Estate of Terry T. Lankford
and against Kenneth F. Lankford. It is further
ORDERED that, on or before May 15, 2015, Administrative Committee of the
Northrop Grumman Savings Plan shall file a motion for attorney’s fees. The Estate of
Terry T. Lankford shall file a response no later than June 5, 2015. Adm inistrative
Committee of the Northrop Grumman Savings Plan’s reply, if any, shall be filed on or
before June 12, 2015. It is further
ORDERED that, within fourteen days of this order, Administrative Committee of
the Northrop Grumman Savings Plan shall file a bill of costs with the Clerk of the Court.
It is further
ORDERED that, after resolution of Administrative Committee of the Northrop
Grumman Savings Plan’s motion for attorney’s fees and Bill of Costs, the Clerk of the
Court shall disburse all funds currently held in the Court registry, including all interest
accrued, less the registry fee assessment, as follows: 50% to the estate of Clara M.
Trout, and 50% to Richard W. Trout. It is further
ORDERED that The Estate of Terry T. Lankford shall file contact information,
including street addresses, for Richard W. Trout and the estate of Clara M. Trout under
Level 1 Restriction. It is further
ORDERED that this case is closed.
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DATED April 23, 2015.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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