Benacquisto, et al v. American Express Fin, et al

Filing 496

ORDER denying 485 Motion to Reconsider (Written Opinion). Signed by Senior Judge David S. Doty on 3/12/2013. (PJM) CC: All Counsel on NEF on 3/12/2013 (MMP).

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 00-1980(DSD/JMM)
Lesa Benacquisto, Daniel
Benacquisto, Richard Thoresen,
Elizabeth Thoresen, Arnold
Mork, Isabella Mork, Ronald
Melchert and Susan Melchert, on
behalf of themselves and all
others similarly situated,
Plaintiffs,
ORDER

v.
American Express Financial
Corporation, American Express
Financial Advisors, American
Centurion Life Assurance
Company, American Enterprise
Life Insurance Company,
American Partners Life
Insurance Company, IDS Life
Insurance Company and IDS Life
Insurance Company of New York,
Defendants.

This matter is before the court upon the response by Richard
and Lois Schipper to the court’s December 21, 2012, order to show
cause as to why they should not be held in contempt of court and
the motion to reconsider by the Schippers.

Based on a review of

the file, record and proceedings herein, and for the following
reasons, the court finds that the Schippers should not be held in
contempt of court and denies the motion to reconsider.

BACKGROUND
The background of this action is fully set out in prior
orders, and the court recites only those facts necessary for the
disposition of the instant motions.

On February 24, 2012, the

Schippers filed an arbitration claim with the Financial Industry
Regulatory

Authority

(FINRA

Action),

alleging

fraud,

gross

negligence, unsuitability, churning, failure to supervise, breach
of fiduciary duty and breach of contract.
ECF No. 459.

Sheely Aff. Ex. 2, at 4,

In response, on August 23, 2012, Ameriprise filed a

motion to enforce the settlement agreement, arguing that the
court’s Final Order of Judgment in this case (Benacquisto Action)
barred the claims asserted by the Schippers in the FINRA Action.
On November 14, 2012, the court granted the motion.

See ECF No.

473.
On December 10, 2012, Ameriprise filed a motion for an order
to show cause as to why the Schippers should not be held in
contempt of

court,

arguing

that

the

Schippers

had

failed

to

withdraw their claims in the FINRA Action. Thereafter, on December
14, 2012, the Schippers filed a letter requesting permission to
file a motion to reconsider the November 14, 2012, order.

In

support, the Schippers argued that Ameriprise withheld material
information regarding its filing of a uniform submission agreement
in the FINRA Action.

On December 21, 2012, the court granted both

requests and issued a briefing schedule.

2

See ECF No. 484.

After

reviewing the submissions, the court determines that oral argument
is unnecessary.

See Fed. R. Civ. P. 78(b).

DISCUSSION
I.

Contempt of Court
“A party seeking civil contempt bears the initial burden of

proving,

by

clear

and

convincing

contemnors violated a court order.”

evidence,

that

the

alleged

Chi. Truck Drivers v. Bhd.

Labor Leasing, 207 F.3d 500, 505 (8th Cir.2000) (citation omitted).
In support of its motion, Ameriprise argued that the Schippers did
not dismiss the FINRA Action after the court’s November 14, 2012,
order.

The FINRA Action, however, encompassed more claims than

those barred by the Benacquisto Action.

See Walton Aff. Ex. A, at

1 (“These barred claims make up the bulk of the Statement of
Claim.”).

In other words, the November 14, 2012, order barred the

Schippers’ claims that related to their annuity and life insurance
policies, but not the claims relating to their mutual funds.
id.

See

As a result, the court’s prior order does not require the

Schippers to dismiss all claims currently pending in the FINRA
Action.

Moreover, the court notes that when Ameriprise filed its

order to show cause, the appeal window for the court’s November 14,
2012, order had not yet closed.

Therefore, the court determines

that the Schippers shall not be held in contempt of court.

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II.

Motion to Reconsider
A motion to reconsider should not be employed to relitigate

old issues but rather to “afford an opportunity for relief in
extraordinary circumstances.”

Dale & Selby Superette & Deli v.

U.S. Dep’t of Agric., 838 F. Supp. 1346, 1348 (D. Minn. 1993).
Indeed, “[c]ircumstances which warrant reconsideration include a
change in controlling authority or a decision which is clearly
erroneous or would work a manifest injustice.”

In re Potash

Antitrust Litig., No. 3-93-197, 1994 WL 2255, at *1 (D. Minn. Jan.
4, 1994).

In the present action, the court granted the Schippers’

request for reconsideration upon learning that Ameriprise submitted
a

uniform

submission

agreement

to

FINRA

four

days

after

representing to this court that it had not yet submitted a uniform
submission agreement.

See ECF No. 481, at 2.

The court relied on,

among other facts, this assertion in its November 14, 2012, order
when it concluded that Ameriprise was not estopped from seeking an
order enjoining the Schippers from asserting certain claims before
FINRA.

See ECF No. 473, at 4.

Specifically, the Schippers argue

that “at the time the Court wrote and issued its [November 14,
2012,] Order, Ameriprise had already executed and filed its Uniform
Submission

Agreement

and

did

consent

Resp’ts Mem. Supp. Recons. 4.

to

FINRA

arbitration.”

In relevant part, Ameriprise’s

uniform submission agreement states:
The undersigned parties hereby state that to
the extent that any claim, counterclaim and/or
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third-party claim purports to raise claims
that are barred by Paragraph 14 of the May 15,
2001 Order[] entered by the United States
District Court for the District of Minnesota
in Benacquisto v. American Express Financial
Corp., Civil No. 00-1980 (DSD/JMM) ... such
claims,
counterclaims
and/or
third-party
claims remain within the jurisdiction of the
United States District Court for the District
of Minnesota ... and are not submitted to
arbitration under this Submission Agreement.
Def.’s Mem. Opp’n Recons. 3.

In other words, Ameriprise did not

consent to submit to FINRA the claims barred by the Benacquisto
Action.

Therefore, the motion to reconsider is denied.1

CONCLUSION
Accordingly, based on the above, IT IS HEREBY ORDERED that:
1.

Respondents’ motion for reconsideration [ECF No. 485] is

denied; and
2.
Dated:

Respondents shall not be held in contempt of court.
March 12, 2013
s/David S. Doty
David S. Doty, Judge
United States District Court

1

To the extent that the Schippers argue that their claims
were not released by the settlement agreement in the Benacquisto
Action or that they did not receive adequate notice, the court
addressed these arguments in its November 14, 2012, order.
A
motion to reconsider cannot be used to relitigate old issues, and
the court need not address these arguments. See Dale & Selby
Superette & Deli, 838 F. Supp. at 1348.
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