LUCIANO v. TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA - COLLEGE RETIREMENT EQUITIES FUND (TIAA-CREF) et al

Filing 66

MEMORANDUM OPINION filed. Signed by Judge Michael A. Shipp on 9/9/2016. (mmh)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

LORRAINE H. LUCIANO, on behalf of
herself and all others similarly situated,
Plaintiff,

v.

Civil Action No. 15-6726 (MAS) (DEA)
MEMORANDUM OPINION

TEACHERS INSURANCE AND
ANNUITY ASSOCIATION OF AMERICA
- COLLEGE RETIREMENT EQUITIES
FUND (TIAA-CREF), et al.,
Defendants.

SHIPP, District Judge

This matter comes before the Court on Plaintiff Lorraine H. Luciano's ("Plaintiff') motion
for partial reconsideration, pursuant to Local Civil Rule 7.l(i), of the Court's July 29, 2016
Memorandum Opinion and Order (the "Opinion") (ECF Nos. 59, 60) dismissing with prejudice
Counts Four, Five, and Six of Plaintiffs First Amended Complaint and compelling arbitration.
(ECF No. 61.) Intervenor Defendant Lucille Rosso and Defendants Educational Testing Service,
Educational Testing Service Employee Benefits Administration Committee, and Teachers
Insurance and Annuity Association of America - College Retirement Equities Fund, Teachers
Insurance and Annuity Association of America, and College Retirement Equities Fund
(collectively, "Defendants") filed opposition to the motion. (ECF Nos. 62-64.) The Court has
carefully considered the parties' submissions and decides the matter without oral argument
pursuant to Local Civil Rule 78.1.

Reconsideration under Local Civil Rule 7 .1 is an extraordinary remedy that is rarely
granted. Interfaith Cmty. Org. v. Honeywell Int'!, Inc., 215 F. Supp. 2d 482, 507 (D.N.J. 2002).
A motion for reconsideration may be based on one of three separate grounds: (1) an intervening
change in controlling law; (2) new evidence not previously available; or (3) to correct a clear error
of law or to prevent manifest injustice. See id. A motion for reconsideration is not an opportunity
to raise new matters or arguments that could have been raised before the original decision was
made. See Bowers v. NCAA, 130 F. Supp. 2d 610, 612-13 (D.N.J. 2001). Nor is a motion for
reconsideration an opportunity to ask the Court to rethink what it has already thought through. See

Interfaith Cmty. Org., 215 F. Supp. 2d at 507. "Rather, the rule permits a reconsideration only
when 'dispositive factual matters or controlling decisions of law' were presented to the court but
were overlooked." Id. (quoting Resorts Int'! v. Greate Bay Hotel and Casino, 830 F. Supp. 826,
831 (D.N.J. 1992)).
Plaintiff moves for reconsideration arguing that the Court's stated basis for dismissal with
prejudice of Counts Four, Five, and Six "constitutes a clear error oflaw because it [l] misconstrues
the extent of the procedural protections afforded by the Employee Retirement Income Security Act
of 1974 ... , [2] ignores and/or misapplies the relevant statutes, and [3] fails to accord appropriate
deference to the regulations of the Secretary of Labor and the Secretary's interpretation of those
regulations." (Pl.'s Moving Br. 1, ECF No. 61-1.) Specifically, Plaintiff argues that the Court
committed a clear error of law by adopting the reasoning of the dissent in Bond v. Twin City

Carpenters & Joiners Pension Fund, 307 F .3d 704 (8th Cir. 2002), because the "dissent rests on a
clear error of law, namely, a misinterpretation of the extent of the procedural protections afforded
by ERISA and [29 C.F.R. § 2560.503-1 (the "Regulation")]." (Id. at 3.)

2

In the prior motions decided by this Court's Opinion, Plaintiff argued "that the 401(a)
Plan's arbitration provision is unenforceable as a matter oflaw because its cost-splitting provision
unduly inhibits and hampers the initiation and processing of claims for benefits in violation of
[ERISA,] 29 U.S.C. § 1133(2) and [the Regulation,] 29 C.F.R. § 2560.503-1." (Op., July 29, 2016,
7, ECF No. 59.) Specifically, Plaintiff argued that Defendants and the Bond dissent ignored the
regulations and the Secretary's interpretation of them. (ECF No. 40.) In addressing the parties'
arguments regarding the language in § 1133(2) and 29 C.F.R. § 2560.503-1, the Court, after
reviewing both the majority and the dissent's reasoning in Bond, stated that it "agree[d] with the
dissent's reasoning." (Op., July 29, 2016, 11.) In doing so, the Court adopted the reasoning of the
Bond dissent, which acknowledged the appropriate deference to be given to the regulations and
the Secretary's interpretation of the regulations. After providing the appropriate deference, the
Bond dissent held that any interpretation of the regulations that found a cost sharing requirement
for arbitration before filing suit as a violation of ERISA was "entirely unreasonable." Bond, 307
F.3d at 708.
Pursuant to Local Civil Rule 7 .1 (i), a motion for reconsideration must "set[] forth concisely
the matter or controlling decisions which the party believes the Judge ... has overlooked." Local
Civ. R. 7.l(i). Generally, a motion for reconsideration will only be granted "when 'dispositive
factual matters or controlling decisions of law' were brought to the court's attention but not
considered." P. Schoenfeld Asset Mgmt. LLC v. Cendant Corp., 161 F. Supp. 2d 349, 353 (D.N.J.
2001) (quoting Pelham v. United States, 661 F. Supp. 1063, 1065 (D.N.J. 1987)). Here, Plaintiff
is merely asking this Court to rethink what it has already thought through. Plaintiff has failed to

3

proffer any change in law, unconsidered evidence, or persuasive argument that the Court has
committed a clear error of law that requires correction. 1
Accordingly, Plaintiffs motion for partial reconsideration is denied. An order consistent
with this Memorandum Opinion will be entered.

Dated: September f-1016

The only new argument presented by Plaintiff on the motion sub judice, based on
subsection (g) of 29 C.F.R. § 2560.503-1, is that "if: (1) civil litigation is part of a Plan's 'review
procedures'; and (2) 'review procedures' are part of 'claims procedures'; then (3) 'claims
procedures' must include steps after the appeal to the named fiduciary." (Pl.'s Moving Br. 14.)
Based on this interpretation, Plaintiff argues that "[w ]hen the Regulation is read as a whole, it is
clear that the ' [o ]bligation to establish and maintain reasonable claim procedures' does not end
once a claimant has appealed an adverse benefit determination to a named fiduciary," and thus,
"the Regulation's prohibition on 'any provision or practice that requires payment of a fee or costs
as a condition to making a claim or to appealing an adverse benefit determination' must apply to
appeals to an arbitrator." (Id. (quoting 29 C.F.R. § 2560.503-1).)
First, a motion for reconsideration is not an opportunity to raise new matters or arguments
that could have been raised before the original decision was made. Plaintiff could have made this
argument in support of her position in the prior motions but chose not to do so. Even if the Court
considered this argument, Plaintiffs reasoning would mean that the prohibition on "any provision
or practice that requires payment of a fee or costs" would apply not only to arbitration but also to
the filing of a civil complaint. This interpretation leads to an untenable result that ends with the
conclusion that the federal courts are in conflict with ERISA by requiring any party to pay a filing
fee.
4