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Yarbary v. Martin, Pringle, Oliver, Wallace & Bauer, LLP

United States District Court, D. Kansas

April 25, 2014

KRISTOPHER YARBARY, Plaintiff,
v.
MARTIN, PRINGLE, OLIVER, WALLACE & BAUER, L.L.P., et al., Defendants.

MEMORANDUM AND ORDER

CARLOS MURGUIA, District Judge.

Plaintiff Kristopher Yarbary brings this action pro se under the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1132. Plaintiff alleges that defendants violated 18 U.S.C. §§ 1027 and 664 by breaching their fiduciary duties to plaintiff as a rightful beneficiary to his mother's Employment Welfare Benefit Plan ("the Plan"). Plaintiff's mother-Katherine Towles-participated in the Plan through her employment with defendant Martin, Pringle, Oliver, Wallace & Bauer, L.L.P. ("Martin Pringle"). Defendant Martin Pringle administered the Plan and defendant UNUM Group Corporation ("UNUM") managed the Plan. All of the other defendants are "managing and governing authorities or figures" of defendants Martin Pringle and UNUM (collectively and respectively the "Martin Pringle defendants" and the "UNUM defendants").

Until December 28, 2010, plaintiff and his brothers were beneficiaries under the Plan. But on that day, defendant UNUM received a beneficiary designation form from defendant Martin Pringle, which changed the Plan beneficiary from plaintiff and his brothers to defendant William "Red" Towles III-the husband of Katherine Towles. Plaintiff alleges that Katherine Towles did not, in fact, sign the beneficiary designation form.

Plaintiff claims that defendants should not have processed the fraudulent beneficiary designation form. He asks that the court remove defendants as fiduciaries pursuant to 29 U.S.C. § 1111, as well as any other relief the court deems just and fair. The matter is before the court on a number of motions:

1. Plaintiff's Motion to Recuse Magistrate Judge David Waxse and District Judge Carlos Murguia (Doc. 155);
2. Plaintiff's Motion to Reconsider Non-Dispositive Order (Doc. 150);
3. Plaintiff's Motion to Compel Defendants to Answer Complaint (Doc. 147);
4. Plaintiff's Motion to Reconsider Dispositive Order (Doc. 159) Granting MPOWB Defendants and UNUM Defendants Motion to Dismiss (Doc. 166);
5. Defendants Martin, Pringle, Oliver, Wallace & Bauer, L.L.P.'s, Martin Bauer's, David Wooding's, Jeff Spahn, Jr.'s, Michael Jones's, and Richard Thompson's Motion to Dismiss Plaintiff Kristopher Yarbary's Claim for Failure to State a Claim Upon Which Relief Can Be Granted (Doc. 100);
6. The UNUM Defendants' Motion to Dismiss or Strike Plaintiff Yarbary's Fourth Amended Civil Complaint (Doc. 152); and
7. Plaintiff's Motion for Leave to File 5th Amended Complaint (Doc. 157).

The court takes each of the motions in turn.

Plaintiff's Motion to Recuse Magistrate Judge David Waxse and District Judge Carlos Murguia (Doc. 155)

First, the court addresses plaintiff's allegations of bias. Plaintiff asks the undersigned judge to recuse from this case because the undersigned is a graduate of the University of Kansas and his sister has made charitable donations to the university. According to plaintiff, the undersigned shares an interest with defense counsel and his impartiality might be questioned. Plaintiff also requests the recusal of Judge David Waxse, but Judge Waxse is no longer assigned to the case.

28 U.S.C. § 455(a) requires a district judge to "disqualify himself in any proceeding in which his impartiality might reasonably be questioned." The relevant inquiry is "whether a reasonable person, knowing all the relevant facts, would harbor doubts about the judge's impartiality." United States v. Burger, 964 F.2d 1065, 1070 (10th Cir. 1992) (internal quotation marks and citation omitted). The judge's subjective state of mind is immaterial. United States v. Cooley, 1 F.3d 985, 992 (10th Cir. 1993). If there is an appearance of bias, the absence of actual bias is irrelevant. See Bryce v. Episcopal Church in the Diocese of Colo., 289 F.3d 648, 659 (10th Cir. 2002). But recusal is not required based on "unsupported, irrational, or highly tenuous speculation." United States v. Rogers, 831 F.2d 937, 939 (10th Cir. 1987) (citations omitted).

Plaintiff's concerns are unfounded and present no valid basis for recusal. First, a judge need not recuse on the basis of a shared alma mater. See United States v. Adams, No. 1:08-CR-024, 2009 WL 62170, at *2 (M.D. Pa. Jan. 8, 2009) ("[T]he sole basis for defendant's motion is the court and Attorney Tarman's matriculation at a common law school. Inconsequential alumni contacts of this type would not cause a reasonable person to question the court's impartiality."). If merely graduating from the same law school were sufficient to call into question the impartiality of a judge, few cases in this geographic area could be heard by local judges. No reasonable person could question a judge's impartiality based on a common source of a law degree.

Second, the undersigned need not recuse based on the charitable activities of his sister. Even if plaintiff had pointed to the undersigned's own charitable interests, a shared charitable contribution recipient is insufficient to suggest bias. Cf. Lunde v. Helms, 29 F.3d 367, 370 (8th Cir. 1994) (finding no need for a judge to recuse in a case against a judge's alma mater when the judge contributed financially to the school and participated in the school's educational programs). The court denies plaintiff's motion.

Plaintiff's Motion to Reconsider Non-Dispositive Order (Doc. 150)

Plaintiff asks the court to reconsider its order denying his previous motion to strike defendants' motion to dismiss. Plaintiff reiterates his position that defendants may not raise a defense under Rule 12(b)(6) at this point in the case. Instead, plaintiff believes, the Federal Rules of Civil Procedure require defendants to file an answer to the operative complaint.

The decision whether to grant or deny a motion to reconsider is within the court's sound discretion. In re Baseball Bat Antitrust Litig., 75 F.Supp.2d 1189, 1192 (D. Kan. 1999) (citations omitted)). There are three grounds that may justify reconsideration: (1) "an intervening change in controlling law"; (2) "the availability of new evidence"; or (3) "the need to correct clear error or prevent manifest injustice." Shinwari v. Raytheon Aircraft Co., 25 F.Supp.2d 1206, 1208 (D. Kan. 1998) (citations omitted).

"[A] motion for reconsideration is appropriate where the court has misapprehended the facts, a party's position, or the controlling law." Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). It is not, however, a proper place to "revisit issues already addressed or to advance arguments that could have been raised in prior briefing." Coffeyville Res. Ref. & Mktg., LLC v. Liberty Surplus Ins. Corp., 748 F.Supp.2d 1261, 1264 (D. Kan. 2010) (citation omitted). More importantly, a motion for reconsideration "is not a second chance for the losing party to make its strongest case or to dress up arguments that previously failed." Voelkel v. Gen. Motors Corp., 846 F.Supp. 1482, 1483 (D. Kan. 1994) (citation omitted).

Plaintiff contends that reconsideration is necessary to correct clear error or prevent manifest injustice. But in actuality, plaintiff raises the same arguments in his motion that he did the first time- only with lengthier explanation. This is not a proper use of a motion to reconsider.

This case does not present one of clear error or manifest injustice because defendants have properly filed Rule 12(b)(6) motions. Their motions are allowed pre-answer, see Lewis v. Kan. City Area Retail Food Store Emps. Pension Fund, No. 08-2515-JWL, 2009 WL 539897, at *1 (D. Kan. Mar. 4, 2009) ("Defendant was following the proper procedure in filing its Motion for Summary Judgment/Motion to Dismiss prior to filing its answer."), and the filing of such motions tolls the time to answer, see Fed.R.Civ.P. 12(a)(4); Marquez v. Cable One, Inc., 463 F.3d 1118, 1120 (10th Cir. 2006) ("Cable One filed its motion as a Rule 12(b)(6) dismissal motion, however, which clearly does toll the time to answer."). Plaintiff misconstrues Rule 12. Reconsideration is not warranted and the court denies the motion.

Plaintiff's Motion to Compel Defendants to Answer Complaint (Doc. 147)

Plaintiff's motion to compel contains the same arguments outlined in his motion to reconsider (Doc. 150). For the same reasons stated ...


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