Symetra Life Insurance Company et al v. Rapid Settlements LTD
MEMORANDUM AND ORDER entered DENYING 357 MOTION to Alter Judgment; DENYING MOTION to Amend 354 Final Judgment, DENYING 355 MOTION to Alter Judgment. (Signed by Judge Lee H Rosenthal) Parties notified.(leddins, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
SYMETRA LIFE INSURANCE CO., et al.,
NATIONAL ASSOCIATION OF
RAPID SETTLEMENTS, LTD.,
CIVIL ACTION NO. H-05-3167
MEMORANDUM AND ORDER
Each side has asked this court to alter different parts of the final judgment that awarded some
of the attorneys’ fees incurred by the prevailing party, Symetra Life Insurance Co. and Symetra
Assigned Benefits Service Co. (together, “Symetra”) in litigating against Rapid Settlements, Ltd.
(“Rapid”). The final judgment and the summary judgment ruling on which was it was based denied
Symetra fees and costs incurred in this federal lawsuit, awarded fees and costs incurred in the Gross
state-court litigation, and awarded fees and costs incurred in responding to Rapid’s conduct that led
to the court’s 2007 contempt finding. (Docket Entry No. 352, at 1). Symetra asks this court to alter
the judgment to award the fees and costs it incurred in this federal lawsuit. (Docket Entry No. 355).
Rapid agrees with the ruling denying Symetra fees in this federal lawsuit but asks this court to alter
the judgment to deny Symetra the fees and costs it incurred in the Gross state-court litigation and
to deny any court costs in this federal litigation. (Docket Entries No. 357, 359).1 Each party
Rapid’s original and corrected motions included requests for an extension of time to submit
additional briefing on issues raised by cases discussed in this court’s Memorandum and Order. (Docket Entry
No. 357, at 1; Docket Entry No. 359, at 1–2). On January 21, 2013, this court granted Rapid leave to file a
supplemental brief not longer than 5 pages by January 24, 2013. (Docket Entry No. 360). On May 7, 2013,
defense counsel emailed the court’s case manager to clarify that the issues that were the subject of the
extension request had been addressed through the corrected motion.
responded to the other’s motion. (Docket Entry No. 361 (Rapid’s response); Docket Entry No. 362
Based on a careful review of the motions and responses, the prior rulings, the record on
which they were based, and the relevant law, the court concludes that the facts and law support the
results reached. Both motions to alter or amend are denied. The reasons are explained in detail
Symetra’s Motions for an Award of Fees and Costs
The factual background been extensively discussed in this court’s previous rulings. A brief
summary is enough here. In September 2005, Symetra filed this federal suit against Rapid seeking
an injunction barring Rapid from using arbitration to obtain rights to payments from structuredsettlement funds Symetra administered. In January 2007, this court enjoined Rapid from using
arbitration to effect“transfers” of structured-settlement future-payment rights. The term “transfers”
is defined by Structured Settlement Protection Acts (“SSPAs”) in place in 47 states. Those states
include Washington, where Symetra is based, and Texas. In June 2007, this court found Rapid in
contempt for garnishing a Symetra payee’s payments in violation of the injunction. (Docket Entry
In October 2011, this court granted in part and denied in part Symetra’s motion for summary
judgment on Rapid’s liability. (Docket Entry No. 299). The court issued an amended summary
judgment opinion and a declaratory judgment in favor of Symetra and the National Association of
Settlement Purchasers on May 1, 2012. (Docket Entries No. 321, 323). On May 15, the parties
confirmed that the only remaining issue was Symetra’s damages. The damages Symetra sought
were its attorneys’ fees and costs incurred in responding to Rapid’s litigation activities and the fees
and costs associated with the conduct leading to this court’s finding Rapid in contempt. (Docket
Entry No. 324).
In its initial summary judgment motion and supporting materials, (Docket Entries No. 316,
317), Symetra sought the attorneys’ fees and costs it had incurred in state-court cases defending its
contractual rights against Rapid’s efforts to obtain the future-income-stream rights of certain
Symetra annuitants. Rapid had used arbitration to try to transfer to itself the annuitants’ right to
future payments under these Symetra annuities. The annuitants included Robert Ayars, Abigail
Dempsey, Kenneth Gross, Paul Patterson, and Candy Richardson (together, the “Annuitants”).
Symetra relied on the attorney-fee provisions in the Texas and Washington SSPAs. TEX. CIV. PRAC.
& REM. CODE § 141.005(2)(B); WASH. REV. CODE § 19.205.040(2)(b). Symetra argued that at a
minimum, it was entitled to recover the attorneys’ fees and costs it incurred in defending its
contractual rights as to Gross, citing the Texas “litigation exception” to the usual American Rule that
each party pays its own fees. The litigation exception allows recovery of fees and costs on a
successful tortious-interference claim. See DP Solutions, Inc. v. Rollins, Inc., 353 F.3d 421, 431 (5th
Cir. 2003) (citing Tex. Beef Cattle Co. v. Green, 883 S.W.2d 415, 430 (Tex. App.—Beaumont
1994), rev’d on other grounds, 921 S.W.2d 203 (Tex. 1996)). In addition, Symetra sought to
recover the fees it incurred bringing the motion that resulted in this court finding Rapid in contempt
in June 2007. Symetra sought the fees relating to the contempt both as compensation to Symetra
and as a sanction against Rapid.
After responsive briefing and a hearing at which counsel presented oral argument on July
27, 2012, Symetra filed an “Amended Motion for Summary Judgment as to Attorneys’ Fees,”
replacing its original motion. (Docket Entry No. 329; see Docket Entry No. 352, at 15). Symetra
no longer sought to recover the fees and costs it incurred in the state-court cases against Rapid
involving the Annuitants (except for Gross). Instead, Symetra sought to recover the fees and costs
it incurred in this federal litigation. Symetra relied on the Texas and Washington SSPA attorney-fee
provisions to recover the fees and costs it had incurred in obtaining rulings that Rapid was violating
the SSPAs and enjoining Rapid from making future unlawful transfers. Symetra continued to argue
that at a minimum, it was entitled to the fees and costs it incurred in defending its contractual rights
with regard to the Gross annuity based on the Texas litigation exception to the American Rule.
Symetra also continued to seek fees and costs it incurred in relation to the June 2007 contempt
The SSPA attorney-fee provisions state:
[f]ollowing a transfer of structured settlement payment
rights . . . [t]he transferee shall be liable to the structured settlement
obligor and the annuity issuer . . . [f]or . . . reasonable costs and
attorneys’ fees[ ] . . . arising as a consequence of the transferee’s
failure to comply with this chapter.
WASH. REV. CODE § 19.205.040; accord TEX. CIV. PRAC. & REM. CODE ANN. § 141.005. During
oral argument on August 20, 2012, this court asked Symetra how the prefatory phrase “[f]ollowing
a transfer” applied when the fees sought were not incurred in challenging specific annuity futureincome transfers and seeking to undo the transfers after they had occurred.
The fees Symetra
sought were incurred in challenging Rapid’s general approaches to seeking transfers in order to
prevent the future use of such approaches. The fees were not incurred “following a transfer,” to
challenge and undo any specific transfer after it had occurred. Symetra offered a “but-for” argument
to avoid the statutory language allowing fees only for disputes “following a transfer.” But for
Rapid’s efforts to effect transfers through unlawful processes, such as arbitrations that circumvented
the SSPAs, Symetra would not have had to file this federal lawsuit and incur the fees. Symetra
conceded that if this court concluded “that the statute would not apply to unnamed future
arbitrations, . . . then, I don’t know of another way that we would be entitled to the fees.” (Docket
Entry No. 345, at 32).
In its November 21, 2012 Memorandum and Opinion, this court reviewed Symetra’s
abandonment in its amended motion of its argument that it was entitled under the Washington and
Texas SSPAs to recover fees incurred in the underlying state-court litigations against Rapid
involving the Annuitants. As Symetra explained, “[b]y this Amended Motion, Symetra revises its
request for fees and does not seek to recover fees incurred in any state court proceeding except fees
incurred in the [Gross] proceeding.” (Docket Entry No. 352, at 16 (quotation omitted)). Symetra’s
theory for recovering fees incurred in the state-court Gross litigation was limited to the Texas
litigation exception to the American Rule for tortious-interference claims. Symetra’s amended
motion sought fees and costs: (1) incurred in this federal litigation, under the Washington and Texas
SSPAs; (2) incurred in the state-court Gross litigation, under the Texas litigation exception to the
American Rule; and (3) incurred in this federal litigation bringing the motion for contempt. This
court ruled that Symetra had not waived its right to seek the fees it incurred in this federal litigation
by asserting, then abandoning, its effort to recover the fees incurred in the state-court proceedings
against Rapid related to the Annuitants other than Gross. (Id. at 17–20). Rapid does not challenge
the ruling finding no waiver in its motion to alter or amend.
This court concluded that under the attorney-fee provisions of the Texas and Washington
SSPAs, Symetra was not entitled to the fees and costs incurred in this federal litigation. In the cases
awarding fees under these Acts, the fees had been incurred in challenging specific transfers of
annuity future-income streams after those transfers had purportedly occurred. (Id. at 25). In this
federal lawsuit, Symetra did not incur fees in challenging or seeking to undo specific transfers.
Rather, Symetra challenged Rapid’s general practices of using arbitration and other procedures to
effect transfers in violation of the SSPAs. Symetra sought declaratory and equitable relief to prevent
Rapid’s ability to effect future similar transfers. This court concluded that because the SSPAs allow
only fees incurred in litigation “following a transfer,” they did not authorize the fees Symetra sought
to recover in this federal litigation.
This court also rejected Symetra’s argument that it was entitled to fees under the SSPAs
because, but for Rapid’s previous unlawful transfers, Symetra would not have had to file the federal
lawsuit seeking an order prohibiting such future transfers. The fee provisions in the SSPAs cover
fees for legal work in a dispute “following a transfer,” not fees for legal work directed to preventing
future transfers. Such work does not take place “following a transfer.” Accepting Symetra’s “butfor” argument would read out the prefatory clause, “[f]ollowing a transfer of structured settlement
payment rights, . . . .” (Id. at 25–28). Symetra decoupled its requested relief from a specific
transfers. (Id. at 27).
This court concluded that Symetra was not entitled to the fees and costs it incurred in this
federal litigation under the Texas and Washington SSPAs.2 Symetra was, however, entitled to the
fees and costs it incurred in the Gross state-court litigation relating to Rapid’s efforts to obtain that
annuitant’s future income stream. Gross was an Indiana citizen and a Symetra annuitant. He
entered into a transfer agreement with Rapid in August 2004. Rapid sought approval of the
proposed transfer in an Indiana state court under the Indiana SSPA. That court rejected the proposed
transfer in December 2004. Gross then entered into another transfer agreement with Rapid in
February 2005. Rapid invoked the arbitration clauses in the August 2004 and February 2005
transfer agreements based on Gross’s alleged breaches of those agreements. Gross canceled the
The court also rejected Symetra’s argument that it was entitled to its fees incurred in this federal
litigation under the litigation exception for tortious interference claims, but that ruling is not the subject of
the present motions.
February 2005 agreement and entered into two other transfer agreements with Rapid in March 2005.
After an arbitration in Harris County, Texas — with Gross uncounseled and participating by
telephone — the arbitrator issued the award Rapid sought in May 2005, requiring Symetra to
transfer the future income payments to Rapid and requiring Rapid to pay Gross the lump sum
specified in the March 2005 agreements. The arbitrator’s award was to become effective once the
award had been domesticated in an Indiana court. Gross and Rapid filed an agreed final judgment
confirming the arbitration award in a Harris County state court. Symetra moved to vacate that
judgment on the ground that the transfer violated the Texas SSPA. In July 2005, the Texas court
granted Symetra’s motion and vacated the judgment. The First Court of Appeals held that the state
district court lacked the authority to vacate its own judgment but declined to enforce that judgment
Meanwhile, a third party, Kent Niemeier, had obtained a judgment of approximately
$113,000 against Gross in an Indiana state court. In November 2005, Niemeier asked the Indiana
court to garnish Gross’s $150,000 lump-sum payment from Rapid that was scheduled to be paid in
September 2006. In August 2006, Rapid demanded that Symetra comply with the arbitration award
and the final judgment confirming it. Symetra refused based on the Indiana garnishment order and
the order of the Texas First Court of Appeals. Rapid again invoked the arbitration provision in its
transfer agreement with Gross. In late 2006, Rapid obtained an arbitration award (again after an
arbitration in which it was the only party physically present) enforcing the May 2005 arbitration
award and Harris County final judgment.
In Indiana state court, Niemeier moved to hold Symetra in contempt for failing to comply
with the garnishment order. Symetra then moved for a declaratory judgment against Rapid that
Rapid’s use of arbitration to obtain the transfer from Gross violated the Indiana SSPA. The Indiana
court agreed with Symetra and declared Rapid’s underlying transfer agreement invalid.
This court concluded that Symetra was entitled its fees and costs incurred in the Gross statecourt litigation under the Texas litigation exception. The court rejected Rapid’s argument that
Symetra had “voluntarily injected itself” into the Indiana litigation between Gross and Niemeier.
(Docket Entry No. 352, at 33).
The litigation exception is “limited to situations ‘where the natural and proximate
results and consequences of prior wrongful acts had been to involve a plaintiff . . .
in litigation with and against third parties and other parties.’” DP Solutions, 353
F.3d at 431 (alteration in original) (quoting Tex. Beef Cattle, 883 S.W.2d at 430).
Rapid’s actions — its illegal attempts to effect transfers through the arbitration
process — were not just a substantial factor in embroiling Symetra in cases such as
the Gross litigation to defend its contractual rights and prevent Rapid’s abusive
tactics. Rapid’s actions were the only factor that involved Symetra in the litigation.
It was reasonably foreseeable to Rapid that its attempts to effect unlawful transfers
with Symetra annuitants would result in Symetra involving itself in litigation to
protect its legal rights, including bringing tortious-interference-with contract claims
Symetra has clearly established that Rapid’s attempts to effect a transfer of a portion
of Gross’s annuity through the arbitration process caused Symetra to be involved in
the Gross litigation in Indiana. As damages for Symetra’s tortious-interference claim
as it relates to the Gross annuity, Symetra is entitled under the Texas litigation
exception to its necessary and reasonable attorneys’ fees incurred in the Gross
litigation. See id.
(Docket Entry No. 352, at 34). This court also rejected several other Rapid arguments against
awarding Symetra the fees and costs it incurred in the prolonged litigation against Rapid relating to
the Gross annuity, rulings that Rapid does not challenge in its present motion to alter or amend.
Finally, the court ruled that Symetra was entitled to its fees and costs incurred in bringing
the 2007 motion for contempt. The parties do not challenge this ruling in the present motions. To
the contrary, Rapid states that it has paid the $11,095. (Docket Entry No. 359, at 4 n.1).
The Present Motions
Symetra argues that this court erred by denying its motion for an award for the fees and costs
it incurred in this litigation pursuing federal injunctive relief to prohibit Rapid from using arbitration
awards to effect transfers in violation of the SSPAs, seeking to confirm awards obtained through
arbitration for that purpose, and attempting to enforce judgments confirming such awards. (Docket
Entry No. 355, at 6). Symetra argues:
It may be that the Court did not focus on the fact that Symetra’s request for
injunctive relief was based on seven transfers. Or perhaps the Court’s opinion treats
Symetra’s abandonment of it[s] request for attorney’s fees incurred in the state court
proceedings as a waiver of attorney’s fees in this case with respect to the seven
annuitants. There is a difference between fees incurred in prior litigation arising
from Rapid’s conduct and attorney’s fees incurred in this litigation.
(Id. at 4). Symetra concedes that this court “correctly observed that Symetra abandoned its claim
for attorney’s fees incurred in prior state court proceedings, except as to N[ie]meier, which arose
out of the Gross transfer.” (Id.) Nevertheless, Symetra argues that it was not barred from seeking
its fees incurred in this case under the SSPA “so long as Symetra challenged specific transfers,”
which Symetra argued it had done because “[t]he fees sought by Symetra in this case arose as a
consequence of Rapid’s failure to comply with the SSPA with respect to seven completed transfers.”
(Id. at 4–5). In the alternative, Symetra argues that this court was wrong in interpreting the SSPAs
to limit fee awards. Symetra argues that the SSPAs should be interpreted broadly to discourage
illegal transfer attempts.
In its motion to alter or amend, Rapid argues that the court erred in awarding Symetra fees
and costs relating to the Gross state-court litigation. Rapid argues that Symetra had not met all the
requirements for the Texas litigation exception and that Symetra had unnecessarily injected itself
into the Gross litigation. Rapid argues that the litigation exception for tortious-interference claims
cannot apply because the Gross arbitration proceeding was Rapid’s first attempt to initiate an
arbitration against a Symetra annuitant. (Docket Entry No. 259, at 2). Rapid also challenges this
court’s conclusion that Rapid’s conduct led to Symetra’s involvement because Niemeier and
Symetra voluntarily participated in trying to have Gross’s lump-sum payment garnished. Rapid also
challenges this court’s final judgment to the extent that it awards Symetra its costs of court because
the support for the taxable costs is insufficient. (Id. at 3–4).
These arguments and their responses are addressed below.
The Rule 59(e) Legal Standard
A Rule 59(e) motion “‘calls into question the correctness of a judgment.’” Templet v.
HydroChem Inc., 367 F.3d 473, 478 (5th Cir. 2004) (quoting In re Transtexas Gas Corp., 303 F.3d
571, 581 (5th Cir. 2002)). “Rule 59(e) permits a court to alter or amend a judgment, but it ‘may not
be used to relitigate old matters, or to raise arguments or present evidence that could have been
raised prior to the entry of judgment.’” Exxon Shipping Co. v. Baker, 554 U.S. 471, 486 n.5 (2008)
(quoting 11 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE
§ 2810.1, at 127–28 (2d ed. 1995)). “[A] motion to alter or amend the judgment
under Rule 59(e) must clearly establish either a manifest error of law or fact or must present newly
discovered evidence and cannot be used to raise arguments which could, and should, have been
made before the judgment issued.” Rosenblatt v. United Way of Greater Hous., 607 F.3d 413, 419
(5th Cir. 2010) (alteration in original) (quoting Rosenzweig v. Azurix Corp., 332 F.3d 854, 864 (5th
Cir. 2003)) (internal quotation marks omitted). “A party seeking reconsideration must show more
than disagreement with the court’s decision and recapitulation of the same cases and arguments
already considered by the court.” Texaco Exploration & Prod., Inc. v. Smackco, Ltd., No. Civ. A.
98–2293, 1999 WL 539548, at *1 (E.D. La. July 26, 1999) (citing Plaskon Elec. Materials, Inc. v.
Allied-Signal, Inc., 904 F. Supp. 644, 669 (N.D. Ohio 1995)); see also Joe v. Minn. Life Ins. Co.,
272 F. Supp. 2d 603, 604 (S.D. Miss. 2003) (“‘Whatever may be the purpose of Rule 59(e), it should
not be supposed that it is intended to give an unhappy litigant one additional chance to sway the
judge.’” (quoting Atkins v. Marathon LeTourneau Co., 130 F.R.D. 625, 626 (S.D. Miss. 1990))).
The parties’ Rule 59(e) motions fall under the category of motions intended to correct a manifest
error of law or fact.
Symetra’s Motion to Alter or Amend the Order Denying Fees and Costs
Incurred in this Litigation
Symetra argues that this court erred in denying its request for attorneys’ fees incurred in this
case because this federal litigation was tied to after-the-fact challenges to specific transfers. Symetra
argues that it sought injunctive relief based on Rapid’s past unlawful transfers, and that the SSPAs
should be broadly construed. Symetra acknowledges that it could have, but did not, seek its fees in
the state-court cases that “followed” and sought to undo the specific transfers that Symetra pointed
to as evidence for the relief it sought in this case of preventing similar future transfers. Except for
the fees relating to the Gross state-court litigation, which are sought under a Texas common-law
rule, not the SSPAs, Symetra has abandoned its earlier claim for an award in this federal lawsuit for
the fees it incurred in the state-court lawsuits. It was and is clear that Symetra has not abandoned
its request for the fees it incurred in this case. The observation in the Memorandum and Opinion
that Symetra abandoned its claim to the state-court-litigation fees does not reflect any
misunderstanding on the court’s part that Symetra was also abandoning its claim to fees for this
federal litigation. Symetra is not.
Symetra argues that the fees it incurred in this federal case were for legal work sufficiently
close to legal work that “follow[ed] a transfer” of annuitants’ structured settlement future-income
streams to allow recovery under the state SSPA fee provisions. This argument essentially reframes
Symetra’s “but-for” argument that this court earlier rejected as a basis to award the fees and costs
incurred in this case. The argument is that but for the specific Annuitants’ transfers cited in
Symetra’s motion for reconsideration, Symetra would not have had to file this federal lawsuit.
Symetra had already pursued state-court litigation following the Annuitants’ transfers. The relief
Symetra sought in the state courts was to invalidate and undo those transfers. Symetra did not seek
fees from the state courts under the state SSPAs for that legal work, which clearly “[f]ollow[ed] a
Symetra sought different relief in this federal case. Symetra is seeking fees for work not
directed to challenging and undoing specific transfers but to prevent Rapid’s use of similar
techniques to obtain future transfers of structured settlement payment rights. Although this federal
litigation in part grew out of, and involved evidence of, specific earlier transfer attempts, this case
did not follow specific transfers. And the basis for this federal lawsuit was not merely Rapid’s use
of arbitration and similar procedures in past transfer agreements involving the Annuitants, but also
Rapid’s clear intent to use such procedures to circumvent SSPA requirements. As discussed in the
Memorandum and Opinion, the cases awarding fees under the SSPAs involve fees incurred directly
following a transfer, to challenge and try to undo that transfer. In reviewing the cases construing
the SSPAs, this court has not found additional or more recent cases that support a broader
construction or different result. The court is not persuaded that it committed a manifest error of law
in concluding that the SSPAs allow recovery of fees for legal work that follows and challenges
specific transfers, not for legal work that seeks to prevent future transfers before they have occurred.
Symetra’s motion to alter or amend is denied.
Rapid’s Argument That Symetra Is Not Entitled to Fees for the Gross Litigation
Rapid seeks to alter or amend this court’s ruling that, under the Texas litigation exception
to the American Rule, Symetra is entitled to fees for the legal work in the state-court litigation
involving Gross. Rapid argues that for the litigation exception to apply, “the natural and proximate
results and consequences of prior wrongful acts [must have] been to involve a plaintiff . . . in
litigation with and against third parties and other parties.” DP Solutions, 353 F.3d at 431 (second
alteration in original) (quoting Tex. Beef Cattle, 883 S.W.2d at 430). Rapid argues that there was
no history of prior wrongful acts when the Gross litigation occurred.
Rapid’s argument that the litigation exception to the American Rule does not apply to the
first instance of unlawful conduct was not raised before this court issued its summary-judgment
ruling. Such delayed arguments are ordinarily not a proper basis for relief under Rule 59(e). See
Exxon Shipping, 554 U.S. at 486 n.5. Putting this problem aside, this argument is not a sufficient
basis to deny Symetra its fees for the Gross state-court litigation.
The Texas litigation exception allows fees incurred in a prior case as damages in a present
case. See, e.g., Baja Energy, Inc. v. Ball, 669 S.W.2d 836, 839 (Tex. App.—Eastland 1984, no writ).
Even if Rapid’s reading of DP Solutions is correct, that would not prevent Symetra from seeking
fees incurred in the Gross litigation as damages in this suit. The litigation exception does not require
a “history of prior wrongful acts,” (Docket Entry No. 359, at 2), as Rapid urges, but rather “wrongful
acts” that are “prior” to the litigation. DP Solutions, 353 F.3d at 431. The record shows that Rapid
took steps related to arbitration and Gross’s settlement before the Gross litigation was filed. Finally,
as Symetra points out, describing Gross as the first time Rapid used arbitration to attempt a transfer
that circumvented and violated an SSPA is contradicted by cases describing Rapid’s pattern of
conduct around the country. See, e.g., Fidelity & Guar. Life Ins. Co. v. Harrod, 2006 WL 1911077,
at *3 (D. Md. May 25, 2006) (“Rapid also claims that it entered into a similar transfer agreement
with Harrod in April of 2004 . . . .”); see also Allstate Settlement Corp. v. Rapid Settlements, Ltd.,
559 F.3d 164, 166 (3d Cir. 2009) (“On March 21, 2005, Rapid Settlements filed a demand for
arbitration against Ward alleging, inter alia, that Ward had received an advance of $9,937.50 toward
the money he was to receive under the second agreement and that he had failed to return the money
after the court denied approval of the transfer.”). The order awarding fees for the Gross litigation
does not appear to be a manifest error of law or fact.
Rapid’s argument that Symetra voluntarily injected itself into the Gross proceedings or the
Niemeier garnishment is also unpersuasive. Rapid’s argument appears to be that because Gross,
Niemeier, and Symetra cooperated in the Gross litigation in Indiana state court, the Texas litigation
exception is not available to Symetra as the “mover, pleader, and author” of the litigation against
Rapid. (Docket Entry No. 359, at 10). This argument fails for the reasons explained in the
Memorandum and Order. Symetra became involved in the Indiana litigation as a direct result of
Rapid’s use of arbitration to circumvent, and therefore violate, the SSPA requirements for
transferring the structured settlement annuity future-income right. The litigation exception does not
require passivity on Symetra’s part. See, e.g., Lesikar v. Rappeport, 33 S.W.3d 282, 306 n.1 (Tex.
App.—Texarkana 2000, pet. denied) (“[A] plaintiff may recover attorneys’ fees as damages where
the defendant’s wrongful conduct forces the plaintiff to prosecute or defend litigation in another
proceeding.” (emphasis added)).
Rapid’s motion to alter or amend is denied.
Rapid’s Argument That Symetra Is Not Entitled to Costs
Rapid argues that Symetra has not properly documented the costs it incurred and that some
of the costs Symetra identified in its summary judgment motion are not taxable under 28 U.S.C.
§ 1920. Rapid also argues that the method Symetra proposed to calculate recoverable costs was not
sufficiently specific. This court’s final judgment stated that Symetra is entitled to recover its costs
of court from Rapid. The final judgment did not fix an amount. Rapid does not challenge the award
itself, but only the amount. Rapid’s challenge to the amount, or to specific cost items, is premature
because costs have not yet been taxed. See FED. R. CIV. P. 54(d)(1) (providing that recoverable costs
are determined by the clerk of court after submission of a bill of costs to the clerk by the prevailing
party). This argument does not present a basis to alter or amend this court’s final judgment.
The parties’ Rule 59(e) motions to alter or amend are denied.
SIGNED on June 25, 2013, at Houston, Texas.
Lee H. Rosenthal
United States District Judge
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