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Norman Walker, Christine Bauer-Ramazani, and Carolyn B. Duffy, On v. Teachers Insurance and Annuity Association of America-College

December 17, 2012

NORMAN WALKER, CHRISTINE BAUER-RAMAZANI, AND CAROLYN B. DUFFY, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA-COLLEGE RETIREMENT AND EQUITIES FUND, COLLEGE RETIREMENT AND EQUITIES FUND, TIAA-CREF INVESTMENT MANAGEMENT, LLC, TEACHERS ADVISORS, INC., TIAA-CREF INDIVIDUAL & INSTITUTIONAL SERVICES, LLC, AND TEACHERS' INSURANCE AND ANNUITY ASSOCIATION OF AMERICA, DEFENDANTS.



The opinion of the court was delivered by: Honorable J. Garvan Murtha United States District Judge

MEMORANDUM AND ORDER

(Doc. 194)

I. Introduction

Norman Walker moves the Court for entry of final judgment under Federal Rule of Civil Procedure 54(b). (Doc. 194.) Defendants Teachers Insurance and Annuity Association of America-College Retirement and Equities Fund, College Retirement and Equities Fund, TIAACREF 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. 203.)

II. Background

In August 2009, Norman Walker commenced this proposed class action against Teachers Insurance and Annuity Association of America-College Retirement and Equities Fund alleging it wrongfully "kep[t] customer accounts open for days or weeks after receiving instructions to close them, and retain[ed] all investment income earned in the interim for itself." (Doc. 1 at 1.)

Mr. 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 time the St. Michael's retirement plan placed retirement assets of plan participants with TIAA-CREF. Id. at 2.

Mr. Walker's original complaint contained three counts: Count one alleged ERISA violations, Count two alleged common law violations, and Count three alleged consumer fraud. See id. at 7-10. In April 2010, Defendant's motion to dismiss Walker's state law claims -- counts two and three -- was granted. (Doc. 21.) In early September 2011, Mr. Walker filed a Consolidated Second Amended Complaint (Doc. 104) alleging ERISA claims against Defendants for breach of fiduciary duty and engaging in prohibited transactions. Id. ¶¶ 38-48.

At a September 19, 2011 status conference and hearing, 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 ERISA claims, and denied as moot Walker's Rule 56(d) motion for denial of summary judgment (Doc. 69). See Dkt. Entry No. 108. 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.

Since this case was originally filed, other proposed plaintiffs moved to intervene and the current named plaintiffs and class representatives are Christine Bauer-Ramazani and Carolyn Duffy, both of whom are also St. Michael's professors. See Doc. 101, Dkt. Entry No. 202. The Consolidated Fourth Amended Complaint in this proposed class action currently alleges Defendants engaged in prohibited transactions and wrongfully used customer funds in violation of their fiduciary duties of loyalty and impartiality by keeping the 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. 205 ¶¶ 1, 41-55.)

III. Discussion

In a one paragraph motion and memorandum, Mr. Walker states all claims he asserted have been decided against him, there is no just reason for delay, and his claims are separate from the remaining claims because his situation is different factually from Ms. Bauer-Ramazani. (Doc. 194.) Mr. Walker also filed a more thorough reply arguing final judgment should be entered because there is no danger of duplicative review and there is no just reason to delay review of his claims. (Doc. 210.)

"[T]here is a historic federal policy against piecemeal appeals. Thus, in the federal district courts, the entry of a final judgment is generally appropriate only after all claims have been adjudicated." Novick v. AXA Network, LLC, 642 F.3d 304, 310 (2d Cir. 2011) (internal quotations and citations omitted). Rule 54(b), however, provides an exception to the general rule:

When an action presents more than one claim for relief--whether as a claim, counterclaim, cross-claim, or third-party claim--or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if ...


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