Robertson v. Sun Life Financial et al

Filing 56

ORDER and REASONS denying 53 Motion to Set a Class Certification Schedule, and 54 Motion to Amend/Correct Complaint. IT IS ORDERED that both Motions are DENIED, as set forth in document. Signed by Judge Sarah S. Vance on 5/25/2018. (sa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LEVI E. ROBERTSON, on behalf of
himself and all other similarly
situated
VERSUS

CIVIL ACTION

NO. 17-2148

SUN LIFE FINANCIAL, ET AL.

SECTION “R” (1)

ORDER AND REASONS
Plaintiff Levi Robertson moves to amend his complaint 1 and to set a
class certification schedule.2 For the following reasons, the Court denies
both motions.
I.

BACKGROUND
This case arises out of allegedly fraudulent withdrawals from

Robertson’s annuity account with Defendant Sun Life Assurance Company
of Canada. 3 On October 9, 2008, Robertson filed suit in state court against
Sun Life, Matthew Pizzolato, and other defendants.4 In his original petition,

R. Doc. 54.
R. Doc. 53.
3
R. Doc. 1-1 at 2-4; R. Doc. 1-6 at 2-5.
4
R. Doc. 1-1 at 2. Defendants Sun Life Financial, Sun Life
Administrators, and Capitol One Bank were dismissed from this litigation
before removal to federal court. See R. Doc. 1 at 2; R. Doc. 1-8 at 4-5;
R. Doc. 1-10 at 4. Defendants Wachovia Bank and Matthew Pizzolato have
never entered an appearance in this case. See R. Doc. 1 at 2.
1

2

Robertson alleged that Pizzolato forged a check for $99,999.99 in
Robertson’s name, and Sun Life negligently permitted a withdrawal in this
amount from Robertson’s annuity account without contacting him to verify
the transaction.5 Robertson’s negligence claims against Sun Life were later
dismissed with prejudice in state court. See Robertson v. Sun Life Fin., 187
So. 3d 473, 475 (La. App. 1 Cir. 2013).
In March 2012, Robertson filed a third amended petition in state court
asserting a breach of contract claim against Sun Life. 6 Robertson alleges that
he entered into a ten-year annuity contract with Sun Life in July 2005, and
that Sun Life breached this contract by failing to secure his investment
through the use of normal industry standards. 7 On February 27, 2017,
Robertson filed a fourth amended petition asserting state and federal
racketeering claims against Sun Life, and requesting that the case proceed as
a class action.8
On March 15, 2017, Sun Life removed this matter to federal court on
the basis of federal question jurisdiction under 28 U.S.C. § 1331 and class
action jurisdiction under 28 U.S.C. § 1332(d).9 On September 22, 2017, the

5
6
7
8
9

R. Doc. 1-1 at 2-3.
R. Doc. 1-4 at 3.
Id. at 3-4.
R. Doc. 1-6; R. Doc. 1-7 at 2.
R. Doc. 1.
2

Court dismissed with prejudice Robertson’s state and federal racketeering
claims as time-barred. 10 On January 22, 2018, the Court denied plaintiff’s
motion to remand to state court. 11 Robertson now moves to amend his
complaint. 12 He also moves to establish a class certification schedule. 13 Sun
Life opposes both motions. 14
II.

DISCUSSION
A.

Leave to Amend

Robertson requests leave to file a fifth amended complaint to include
additional class action allegations.15 The operative class action complaint
currently states that “[t]here are questions of fact and law common to the
class members that include, but are not limited to, the common causes of
action, including state and federal racketeering laws, issues of the liability of
the defendants and the type of damages sustained by the class members.” 16
As the Court noted in its order denying remand, this complaint asserts class
action racketeering claims against Sun Life, and does not identify any other

10
11
12
13
14
15
16

R. Doc. 32.
R. Doc. 48.
R. Doc. 54.
R. Doc. 53.
R. Doc. 55.
R. Doc. 54.
R. Doc. 1-6 at 4.
3

class-wide causes of action. 17 Robertson now states that he wishes to file an
amended complaint to allege class claims that mirror his individual claims. 18
Because his racketeering claims have been dismissed, Robertson’s sole
remaining claim against Sun Life is for breach of contract.
The Court will “freely give leave [to amend] when justice so requires.”
Fed. R. Civ. P. 15(a). The Supreme Court has held that “[i]f the underlying
facts or circumstances relied upon by a plaintiff may be a proper subject of
relief, he ought to be afforded an opportunity to test his claim on the merits.”
Foman v. Davis, 371 U.S. 178, 182 (1962). Leave to amend, however, “is by
no means automatic.” Halbert v. City of Sherman, 33 F.3d 526, 529 (5th Cir.
1994). A party requesting amendment must “set forth with particularity the
grounds for the amendment and the relief sought.” United States, ex rel. Doe
v. Dow Chemical Co., 343 F.3d 325, 331 (5th Cir. 2003) (internal quotation
omitted). The Court considers multiple factors before granting leave to
amend, including “undue delay, bad faith or dilatory motive on the part of
the movant, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of allowance of the
amendment, [and] futility of amendment.” Foman, 371 U.S. at 182.

17
18

R. Doc. 48 at 8-9.
R. Doc. 54-1 at 3.
4

These factors weigh heavily against granting leave to amend.
Robertson seeks to add new class action allegations nearly ten years after
filing suit, and six years after first asserting a breach of contract claim in his
third amended petition. 19 Robertson fails to explain this prolonged delay.
See In re Am. Int’l Refinery, Inc., 676 F.3d 455, 467, 467 n.12 (5th Cir. 2012)
(finding that leave to amend was properly denied when the party seeking to
amend had been aware of the grounds for the claim for at least one year).
Moreover, the deadline to file amended pleadings set out in the Court’s
scheduling order was December 4, 2017.20 Robertson has not shown good
cause for failing to meet this deadline. See Fed. R. Civ. P. 16(b)(4).
Further, Robertson has already amended his complaint four times,
and thus had numerous opportunities to assert a breach of contract claim on
a class basis. Permitting Robertson to bring new class claims at this stage of
the litigation will unduly prejudice Sun Life. See Mayeux v. La. Health Serv.
& Indem. Co., 376 F.3d 420, 427 (5th Cir. 2004) (explaining that
amendments that “involve new theories of recovery and impose additional
discovery requirements” are likely to unduly prejudice defendants (internal
quotation omitted)).

19
20

R. Doc. 1-1 at 2; R. Doc. 1-4 at 3.
R. Doc. 45 at 2.
5

The factors discussed above are sufficient to warrant denying leave to
amend. But the Court also finds that amendment would be futile because
Robertson’s proposed amendment fails to support a reasonable inference
that he can satisfy the minimum requirements to maintain a class action
under Federal Rule of Civil Procedure 23(a). See Smith v. Transworld Sys.,
Inc., 953 F.2d 1025, 1033 (6th Cir. 1992); see also John v. Nat’l Sec. Fire &
Cas. Co., 501 F.3d 443, 445, 445 n.4 (5th Cir. 2007). Robertson has not
provided a proposed amended complaint, but his motion lists several
allegations he wishes to make on behalf of the putative class. 21
Robertson’s proposed allegations conclusorily assert that the class
members share “common causes of action,” but he fails to identify any
specific common cause of action. See Fed. R. Civ. P. 23(a)(3) (requiring that
“the claims or defenses of the representative parties [be] typical of the claims
or defenses of the class”); see also E.D. La. Civ. R. 23.1(A) (providing that a
class action complaint must include the “alleged questions of law or fact
claimed to be common to the class”). Neither the fourth amended petition,
nor Robertson’s proposed allegations, specifically allege that Sun Life
entered into contracts with other putative class members. There is thus no

21

R. Doc. 54-1 at 3.
6

basis to infer that other putative class members had contracts with Sun Life
similar to Robertson’s contract, or that Sun Life breached those contracts.
Further, neither Robertson’s complaint, nor his proposed allegations,
indicate that “the class is so numerous that joinder of all members is
impracticable.” See Fed. R. Civ. P. 23(a)(1). Robertson identifies only two
other investors that he alleges are similarly situated to him. 22 Although the
fourth amended petition states that approximately 160 investors suffered
losses because of Matthew Pizzolato’s fraudulent activities, there is no
allegation that these investors had contracts with Sun Life. 23
Because the factors set out in Foman v. Davis strongly counsel against
permitting amendment, the Court denies leave to amend. 371 U.S. at 182.
B.

Class Certification Schedule

Robertson moves to set a class certification schedule. 24 The local rules
of this district require that a plaintiff move for class certification “[w]ithin 91
days after filing of a complaint in a class action or filing of a notice of removal
of the class action from state court, whichever is later, . . . unless this period
is extended upon motion for good cause and order by the court.” E.D. La.
Civ. R. 23.1(B). This matter was removed from state court over one year

22
23
24

R. Doc. 1-6 at 3; see also R. Doc. 53-1 at 2.
R. Doc. 1-6 at 4.
R. Doc. 53.
7

ago. 25

The Court thus construes Robertson’s motion as a motion for

extension of time to move for class certification.
In a previous order, the Court directed that any motion to set a class
certification schedule identify what, if any, class claims remain in the case
following the dismissal of Robertson’s racketeering claims.26 The Court
explained that it would not entertain arguments based on allegations not
contained in the complaint. 27 In his motion, Robertson fails to point to any
specific language in the fourth amended petition identifying class claims
beyond racketeering claims. Robertson instead asserts that his class action
complaint “alleged that all his claims should proceed as a class.” 28 But this
allegation does not appear in the fourth amended petition. As explained
above, the fourth amended petition does not specifically assert a class claim
for breach of contract, and does not contain factual allegations that could
support such a claim.
Because Robertson fails to identify any class claim remaining in this
case, the Court perceives no good cause to extend the class certification
deadline. Moreover, Robertson fails to explain his delay in timely requesting

25
26
27
28

R. Doc. 1.
R. Doc. 52.
Id.
R. Doc. 53-1 at 3.
8

an extension of the deadline to move for class certification. Robertson notes
that Sun Life previously agreed to set a class certification schedule. 29 But the
parties may not extend a deadline imposed by the local rules without
permission of the Court. See, e.g., Harper v. Am. Airlines, Inc., No. 09-318,
2009 WL 4858050, at *3 (N.D. Tex. 2009) (explaining that the deadline to
move for class certification “is one imposed by the Federal Rules and this
Court’s local rules and the parties may not alter it by an undisclosed
agreement”). Accordingly, Robertson’s motion to set a class certification
schedule is denied.
III. CONCLUSION
For the foregoing reasons, the motion for leave to amend is DENIED.
The motion to set a class certification schedule is also DENIED.

25th
New Orleans, Louisiana, this _____ day of May, 2018.

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

29

Id. at 4-5.
9