The opinion of the court was delivered by: Honorable J. Garvan Murtha United States District Judge
Norman Walker moves the Court for reconsideration of its September 19, 2011 ruling granting Defendants' Motion for Summary Judgment resulting in dismissal of Walker's claims. (Doc. 139.) Defendants Teachers Insurance and Annuity Association of America-College Retirement and Equities Fund, College Retirement and Equities Fund, TIAA-CREF Individual & Institutional Services, LLC, TIAA-CREF Investment Management, LLC, Teachers Advisors, Inc., and Teachers' Insurance and Annuity Association of America (collectively, "Defendants" or "TIAA-CREF") oppose the motion. (Doc. 154.)
This proposed class action alleges Defendants engaged in prohibited transactions and wrongfully used customer funds in violation of their fiduciary duties by keeping these funds invested for purposes other than the customers' benefit after a transfer or redemption request and subsequently compensating some, but not all, customers for delayed payment. (Doc. 148 ¶¶ 1, 39-54). The proposed class seeks compensatory damages and equitable relief, including disgorgement. Id. at 13-14.
In August 2009, Norman Walker commenced this proposed class action against Teachers Insurance and Annuity Association of America-College Retirement and Equities Fund (TIAACREF). (Doc. 1.) Walker, an Associate Professor of Business Administration at St. Michael's College ("St. Michael's"), was an account owner of a TIAA-CREF retirement account from 1995-2007, during the period the St. Michael's retirement plan placed retirement assets of plan participants with TIAA-CREF. Id. at 2. In 2006, St. Michael's, as administrator of the plan, directed TIAA-CREF to transfer plan participants' retirement accounts to another mutual fund platform. TIAA-CREF refused, claiming the College had no authority to direct it to transfer the accounts because they were subject to individual contracts between TIAA-CREF and the participants. The plan obtained individual signatures of over seven hundred College employees to authorize the transfer. Id. at 3. According to Walker, the accounts were to be transferred on May 1, 2007. Walker alleged TIAA-CREF did not "cut a check" for his account until at least May 7, 2007, and the check represented the value of Walker's account as of May 1 though the account value had increased by several thousand dollars in the interim. Id. at 4. Walker alleged TIAA-CREF continued to invest his funds between May 1 and May 7 and retained all investment profits.
Walker filed a First Amended Complaint in January 2011. (Doc. 63.) Following the Court's allowance of Christine Bauer-Ramazani's intervention as a named plaintiff in August, the Court ordered a Consolidated Second Amended Complaint be filed. See Docs. 101, 104. That complaint, filed September 2, 2011, added claims on behalf of Bauer-Ramazani, an instructor in the Applied Linguistics Department at St. Michael's, and an account owner of a TIAA-CREF retirement account from 1986-2007. (Doc. 104 at 3.) Bauer-Ramazani alleged the "TIAA-CREF check cut on May 21, 2007, represented only the value of her account as of May 1, 2007," though the value of her plan assets increased by more than $2,000 between May 1 and May 21. Id. at 5.
At a September 19, 2011 status conference and hearing on other pending motions, the Court, inter alia, denied Walker's motion for class certification (Doc. 55), granted summary judgment (Doc. 61) in favor of Defendants on Walker's claims, denied as moot Walker's Rule 56(d) motion for denial of summary judgment (Doc. 69), and ordered Bauer-Ramazani to file a motion for class certification. Walker's claims were dismissed because Defendants demonstrated he received what the prospectus governing his accounts required: payment within seven days from the business day chosen for his transfer to take effect. See Doc. 61-4 at 51, 62.
Bauer-Ramazani filed an amended motion for class certification on September 27, 2011. (Doc. 110). In mid-November, Defendants opposed the motion, showing they received Bauer-Ramazani's transfer paperwork on May 17, so she fell outside the class she purported to represent of account holders whose transfers were not made by TIAA-CREF within seven days of receiving a request and the necessary paperwork. (Doc. 125 at 3-4.) Instead of replying, on December 2, 2011, Bauer-Ramazani filed a "Notice of Withdrawal of Class Certification Motion" (Doc. 127) and a motion to file a third amended complaint (Doc. 128). Defendants filed a motion for summary judgment a week later. (Doc. 131.) Bauer-Ramazani then filed a motion to "adjourn consideration" of the summary judgment motion pending a decision on the motion to amend. (Doc. 134.)*fn1 On May 25, 2012, the Court granted the motion to amend the complaint, denied the motion for summary judgment, and denied as moot the motion to adjourn consideration of the summary judgment motion. (Doc. 146.) The summary judgment motion was denied without prejudice to renew with regard to the third amended complaint; the Court noted, however, that Walker and Bauer-Ramazani are not similarly situated. (Doc. 146 at 5.)
The Third Amended Complaint was filed June 8, 2012. (Doc. 148.) The complaint names Norman Walker as a plaintiff and putative class representative despite the Court's explicit instruction it was to be filed without Walker as a plaintiff as his claims had been dismissed. (Doc. 146 at 5.) The operative complaint alleges Defendants engaged in prohibited transactions, wrongfully used customer funds in violation of their fiduciary duty of loyalty by keeping these funds invested for purposes other than the customers' benefit after a transfer or redemption request, and wrongfully compensating certain customers for delayed payments in violation of their fiduciary duty of impartiality. (Doc. 148 ¶¶ 1, 39-54). The proposed class seeks compensatory damages and equitable relief, including disgorgement. Id. at 13-14.
In support of his motion, Walker argues the Court should grant reconsideration of its summary judgment ruling under Federal Rule of Civil Procedure 54(b)*fn2 because evidence obtained since the Court's ruling indicates the ruling was based on an incorrect factual premise. (Doc. 139-1 at 1.) The Court's ruling was made in September 2011. Walker's motion for reconsideration was filed in May 2012. The Court's local rules require a reconsideration motion, other than one governed by Federal Rules of Civil Procedure 59 or 60, to be filed within fourteen days of the date of the order. D. Vt. L.R. 7(c). Walker states he did not discover the new evidence until January 2012, well after the summary judgment ruling and fourteen day limit. Walker does not, however, explain why he waited over four months from his discovery of the evidence to file his reconsideration motion. Given that this case was originally filed three years ago last month, the Court is puzzled by Walker's lack of diligence with regard to this matter.
Defendants argue against granting reconsideration because the motion is untimely and in the alternative, if the motion is granted, argue the "new" evidence does not affect ...