CourtListener opinion 10158142

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UNITED STATES DISTRICT COURT 
 NORTHERN DISTRICT OF INDIANA 
 FORT WAYNE DIVISION 

JIMELLA HARRIS, 

 Plaintiff, 

 v. CAUSE NO.: 1:18-CV-284-TLS 

CENTRAL STATES PENSION FUND, 

 Defendant. 

 OPINION AND ORDER 
 This matter is before the Court on the pro se Plaintiff's, Jimella Harris, Motion Pursuant 
to Federal Rule of Civil Procedure 59(a)(2), (b) and (e) [ECF No. 36] and Motion Pursuant to 
Federal Rule of Civil Procedure 60(a) and (b)(6) [ECF No. 37]. In these motions, the Plaintiff 
seeks reconsideration of the Court's April 15, 2019 Opinion and Order [ECF No. 31] granting 
the Defendant's Motion to Dismiss. For the foregoing reasons, the Court DENIES the Plaintiff's 
Motions. 

 BACKGROUND 
 The Plaintiff, proceeding pro se, filed a Complaint on September 11, 2018 [ECF No. 1], 
asserting a breach of fiduciary duty by the Defendant Central States Pension Fund under 29 
U.S.C. § 1104(a). Pl.'s Compl. ¶ 11. The following facts, taken from the Plaintiff's Complaint 
and the exhibits attached to the Complaint, were set forth in the Court's April 15, 2019 Order. 
The Plaintiff was married to a participant in the Defendant's pension plan from August 25, 1995, 
to August 27, 2003. Id. ¶ 5. After the Plaintiff became aware that her ex-husband retired from his 
employment with the Defendant, she contacted the Defendant on August 23, 2004, to state that 
she was entitled to her ex-husband's pension. Id. ¶ 8, Ex. 8A. The Plaintiff asserted that her 
divorce decree from the Allen County Superior Court entitled her to her ex-husband's pension. 
Id. Exs. 3, 8A. The Plaintiff requested a lump sum payment of the money owed and verification 
of her beneficiary status. Id. Ex. 8A. 
 On September 14, 2004, the Defendant informed the Plaintiff by letter that she was not 
entitled to benefits. Id. ¶ 8, Ex. 9A. In the letter, the Defendant stated that the Plaintiff's divorce 
decree was not a Qualified Domestic Relations Order (QDRO) and a QDRO was needed because 
her ex-husband's pension was an ERISA regulated plan. Id. Ex. 9A. The Defendant further 

explained that the Plaintiff would not be an alternate payee entitled to pension benefits until the 
Defendant received a QDRO. Id. The Defendant also set forth in the letter the requirements for a 
QDRO. Id. 
 The Plaintiff alleges that she endured a back-and-forth with the Defendant regarding a 
QDRO. Id. ¶ 9. The Plaintiff submitted a May 2008 order from the state court that the Defendant 
recognized as a "domestic relations order"; however, the Plaintiff did not submit the May 2008 
order as a QDRO. Id. 
 In a June 10, 2008 letter, the Defendant addressed two proposed domestic relations orders 
that had been provided by the Plaintiff and indicated that either one would be deemed 
"Qualified" upon receipt of a certified copy. Id. ¶ 18, Ex. 9F at 1. The Defendant also informed 

the Plaintiff that it would establish an escrow account for up to 18 months to determine whether 
the parties were able to submit an order that the Defendant considered a QDRO. Id. Ex. 9F at 2. 
On September 18, 2008, the Defendant informed the Plaintiff's ex-husband by letter that it would 
release the escrowed amounts because the Order of Judgment required that he pay the Plaintiff 
directly from the benefit he receives from the Defendant. Id. Ex. 9G. The Defendant received a 
signed and notarized statement from both the Plaintiff and her ex-husband that requested the 
release of the escrowed amounts. Id. Ex. 9H. 
 The Plaintiff's ex-husband died in November 2008, id. Ex. 15C at 3, and the Plaintiff 
appealed the denial of benefits in 2009, id. Ex. 9M. On June 17, 2009, the Defendant advised the 
Plaintiff that she was not eligible to receive any pension benefit and that the proposed QDROs 
were defective. Id. Ex. 9M. The Defendant determined that the Plaintiff was not eligible for a 
surviving spouse benefit because she was not married to her ex-husband at the time of his death. 
Id. Since she had not submitted a QDRO assigning her surviving spouse rights and the Plaintiff's 
Decree of Dissolution of Marriage did not constitute a QDRO, the Plaintiff was not eligible for a 

surviving spouse benefit. Id. 
 In a December 4, 2017 letter, the Plaintiff requested that the Defendant reopen her 
appeal. Id. Ex. 14. On January 4, 2018, the Defendant informed the Plaintiff that, while her 
appeal had been denied on June 9, 2009, it would review new information provided by the 
Plaintiff. Id. Ex. 15. On February 1, 2018, the Plaintiff submitted an appeal in the administrative 
appeal process, which the Defendant's Benefit Claims Appeals Committee denied on March 21, 
2018. Id. Ex. 15C. The Plaintiff then appealed to the Trustees, and her appeal was denied on May 
8, 2018. Id. Exs. 15D, 15E. 
 In the Complaint filed with this Court, the Plaintiff alleged that "the Defendant breached 
its fiduciary duty to the Plaintiff as a beneficiary to the Defendant's Plan with such beneficiary 

status established by the Plaintiff's and Participant's divorce decree." Id. The Plaintiff alleged 
that there was willful concealment of material information on two fronts: (1) the Defendant 
willfully concealed its possession of the Plaintiff's divorce decree; and (2) the Defendant failed 
to notify the Plaintiff of the pension plan procedures. Id. ¶¶ 13–14, 23(A)–(B). Finally, the 
Plaintiff asked the Court to order the Defendant to pay Plaintiff the $4,000 that had been 
withheld in an escrow fund and later paid to the Plaintiff's ex-husband. Id. ¶ 20. 
 On November 16, 2018, the Defendant filed a Motion to Dismiss [ECF No. 13] pursuant 
to Federal Rule of Civil Procedure 2(b)(6), arguing that the Plaintiff's claims are barred by the 
three-year statute of limitations for fiduciary breaches. The Plaintiff filed a response, the 
Defendant filed a reply, the Plaintiff filed a sur-response, and the Defendant filed an additional 
reply. 
 On November 26, 2018, the Plaintiff filed a Motion for Sanctions [ECF No. 20]. The 
same date, the Plaintiff also filed a Motion for Judgment on Partial Findings [ECF No. 21], 

arguing that the Defendant should pay $4,000 due to loss of funds as a direct result of the 
Defendant's errors. The Defendant filed a response to the Plaintiff's Motion for Judgment on 
Partial Findings, and the Plaintiff filed a reply. 
 On April 15, 2019, this Court issued an Opinion and Order granting the Defendant's 
Motion to Dismiss the Plaintiff's Complaint, denying the Plaintiff's Motion for Sanctions, and 
denying the Plaintiff's Motion for Judgment on Partial Findings [ECF No. 31]. The Court 
dismissed the Plaintiff's Complaint with prejudice pursuant to Fed. R. Civ. P. 12(b)(6), finding 
that her claims were barred by ERISA's statute of limitations for fiduciary breaches set out in 29 
U.S.C. § 1113. 
 In its ruling, the Court noted that the Plaintiff alleged that she had been married to her 

husband from August 25, 1995, to August 27, 2003, and that she alleged entitlement to a portion 
of her ex-husband's pension based upon a Divorce Decree entered in her divorce case in state 
court. Apr. 15, 2019 Op. and Order 1. The Court found that, based on the allegations of the 
Complaint, the Plaintiff had actual notice of the alleged breach of fiduciary duty when she 
received the September 14, 2004 letter informing her that she was not entitled to benefits due to 
the lack of a QDRO. Id. 9. As a result, the Court held that her claims are barred by the statute of 
limitations. Id. The Court rejected the Plaintiff's argument that the statute of limitations should 
be extended based upon alleged willful fraudulent concealment. Id. 
 The Court also considered the Plaintiff's claim that there was a fiduciary breach 
regarding the 90-day period to elect survivor benefits set out in the ERISA plan and the 
Defendant's argument that the 90-day period is irrelevant because it only applies to elections 
made by participants who are married at the time of retirement. Id. 9–10. Relying on the 
Plaintiff's allegation that she and her ex-husband were divorced prior to his retirement, the Court 

found that the 90-day period did not save the Plaintiff's Complaint from being barred by the 
statute of limitations. Id. 10. Finally, as to the Plaintiff's allegation in her Complaint that she is 
entitled to a $4,000 payment, which she had also raised in her Motion for Judgment on Partial 
Findings, the Court found that the statute of limitations for the Plaintiff's claims under ERISA 
had expired. Id. 10–11. 
 Judgment was entered on April 16, 2019 [ECF No. 32], and an Amended Judgment was 
entered on April 17, 2019 [ECF No. 33]. The Plaintiff then filed the instant Motions to 
Reconsider on May 16, 2019 [ECF Nos. 36, 37]. The motions are fully briefed. 

 ANALYSIS 
 The Plaintiff's Motions to Reconsider the Court's April 15, 2019 Opinion and Order are 
identical in all respects except that one is brought under Federal Rules of Civil Procedure 
59(a)(2), (b), and (e) and the other is brought under Federal Rules of Civil Procedure 60(a) and 
(b)(6). In these motions, the Plaintiff argues that the Court misunderstood and misapplied 
material facts and law in relation to the Defendant allegedly failing to timely notify her of the 90-

day period to elect survivor benefits set out in the ERISA plan. 
 A motion to alter or amend judgment under Rule 59(e) may be brought based on "newly 
discovered evidence, an intervening change in the controlling law, [or] manifest error of law." 
Cosgrove v. Bartolotta, 150 F.3d 729, 732 (7th Cir. 1998). However, "[a] motion to alter or 
amend a judgment must be filed no later than 28 days after the entry of the judgment." Fed. R. 
Civ. P. 59(e). The Court cannot extend this deadline. See Fed. R. Civ. P. 6(b)(2). The Plaintiff's 
motion, filed on May 16, 2019, was filed 29 days after the Amended Judgment was entered on 
April 17, 2019, and, thus, the motion is outside the 28-day deadline.1 When a Rule 59(e) motion 
is not timely filed, it "automatically becomes a Rule 60(b) motion." Kiswani v. Phoenix Sec. 
Agency, Inc., 584 F.3d 741, 742–43 (7th Cir. 2009); see also Williams v. Illinois, 737 F.3d 473, 

476 (7th Cir. 2013). Thus, the Court considers both motions as Motions to Reconsider under 
Rule 60(b). 
 Before turning to Rule 60(b), the Court addresses Federal Rule of Civil Procedure 60(a), 
referenced by the Plaintiff. Rule 60(a) allows a court "to correct a clerical mistake or a mistake 
arising from oversight or omission whenever one is found in a judgment, order, or other part of 
the record." Fed. R. Civ. P. 60(a). However, "[t]he past cannot be rewritten; Rule 60(a) allows a 
court to correct records to show what was done, rather than change them to reflect what should 
have been done." Blue Cross & Blue Shield Ass'n v. Am. Express Co., 467 F.3d 634, 637 (7th 
Cir. 2006). In the instant motions, the Plaintiff does not identify a clerical mistake or a mistake 
arising from oversight or omission; rather, the Plaintiff challenges the Court's understanding of 

the facts and application of law. Therefore, Rule 60(a) is not at issue. 
 Federal Rule of Civil Procedure 60(b) allows for relief from a final judgment for the 
following reasons: 
 (1) mistake, inadvertence, surprise, or excusable neglect; 
                                                             
1 The Plaintiff is incorrect that her motion was timely based on the three-day grace period afforded to 
those receiving notice by mail under Federal Rule of Civil Procedure 6(d). Pl.'s Resp. to Def.'s 
Consolidated Resp. to Pl.'s Mots. Pursuant to Fed. R. of Civil Pro. 59(a)(2), (b) and (e) and 60(a) and 
(b)(6) at 1, ECF No. 39; see also Fed. R. Civ. P. 6(d). Rule 6(d)'s grace period does not extend the 
deadline for Rule 59(e) motions because the time to act runs not from the service of a notice but from the 
entry of judgment. Williams v. Illinois, 737 F.3d 473, 475 (7th Cir. 2013). 
 (2) newly discovered evidence that, with reasonable diligence, could not have 
 been discovered in time to move for a new trial under Rule 59(b); 

 (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or 
 misconduct by an opposing party; 

 (4) the judgment is void; 

 (5) the judgment has been satisfied, released, or discharged; it is based on an 
 earlier judgment that has been reversed or vacated; or applying it prospectively is 
 no longer equitable; or 

 (6) any other reason that justifies relief. 

Fed. R. Civ. P. 60(b). A Rule 60(b) motion "must be made within a reasonable time—and for 
reasons (1), (2), and (3) no more than a year after the entry of the judgment." Fed. R. Civ. P. 
60(c)(1). Thus, the Plaintiff's Motions for Reconsideration under Rule 60(b) are timely. 
 "A motion under Rule 60(b) is a collateral attack on the judgment and the grounds for 
setting aside a judgment under this rule must be something that could not have been used to 
obtain a reversal by means of a direct appeal." Kiswani, 584 F.3d at 743 (citing Bell v. Eastman 
Kodak Co., 214 F.3d 798, 801 (7th Cir. 2000)). "A motion brought under Rule 60(b) is limited to 
the grounds specified in Rule 60(b) or extraordinary circumstances." Williams, 737 F.3d at 476. 
 The Plaintiff does not make any argument that would support an analysis of Rules 
60(b)(2)–(5). This leaves Rules 60(b)(1) and 60(b)(6). Rule 60(b)(1) allows relief based on 
"mistake, inadvertence, surprise, or excusable neglect." Fed. R. Civ. P. 60(b)(1). As a motion 
under Rule 60(b) must be brought on grounds "‘that could not have been used to obtain a 
reversal by means of a direct appeal[,]' . . . errors of law and fact generally do not warrant relief 
under Rule 60(b)(1) and certainly do not require such relief." Banks v. Chi. Bd. of Educ., 750 
F.3d 663, 667 (7th Cir. 2014) (quoting Kiswani, 584 F.3d at 743; citing Gleash v. Yuswak, 308 
F.3d 758, 761 (7th Cir. 2002)).2 A motion under Rule 60(b)(6), the "catchall" provision, requires 
the showing of extraordinary circumstances to warrant reopening a final judgement. Pearson v. 
Target Corp., 893 F.3d 980, 984 (7th Cir. 2018); Arrieta v. Battaglia, 461 F.3d 861, 865 (7th 
Cir. 2006) (citing Gonzalez v. Crosby, 545 U.S. 524 (2005)). A court may consider a variety of 
factors to determine extraordinary circumstances, including "the risk of injustice to the parties" 
and "the risk of undermining the public's confidence in the judicial process." Buck v. Davis, 137 
S. Ct. 759, 778 (2017) (quoting Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863–

64 (1988)). Rules 60(b)(1) and 60(b)(6) are mutually exclusive. Pearson, 893 F.3d at 984. 
 In the Motions to Reconsider, the Plaintiff argues that "there remain disputes of material 
facts" and "there are grounds for difference of opinion on questions of law," [ECF No. 36 at 1; 
ECF No. 37 at 1]. In support, the Plaintiff focuses solely on the 90-day period set out in the 
ERISA plan documents for a married participant to change an election made at retirement and 
argues that the date in 2017 that the Plaintiff learned about the 90-day period should trigger the 
statute of limitations. In its April 15, 2019 Opinion and Order, the Court found that the statute of 
limitations began to run when the Plaintiff was notified in September 2004 that she must submit 
a QDRO in order to receive a portion of her ex-husband's pension benefits because the 
September 2004 letter provided her with actual knowledge of the alleged breach of fiduciary 

duty. And, the Court found that the 90-day period for a married participant to change an election 
made at retirement is not at issue in this case because the Plaintiff and her ex-husband (the plan 

2 If there is no concern that a party filing a Rule 60(b) motion is attempting to circumvent the time limit 
for filing an appeal, "a district court may grant relief under Rule 60(b)(1) to correct errors that might also 
be corrected on direct appeal." Banks v. Chi. Bd. of Educ., 750 F.3d 663, 667 (7th Cir. 2014) (citing 
Mendez v. Republic Bank, 725 F.3d 651, 659 (7th Cir. 2013); Bell v. Eastman Kodak Co., 214 F.3d 798, 
800 (7th Cir. 2000)). In this case, however, the Plaintiff's time to appeal had expired when she filed the 
instant Motions to Reconsider. Therefore, the Plaintiff must assert "grounds for relief ‘that could not have 
been used to obtain a reversal by means of a direct appeal.'" Id. (citing Kiswani v. Phoenix Sec. Agency, 
Inc., 584 F.3d 741, 743 (7th Cir. 2009)). 
participant) were not married at the time her ex-husband retired. In her motion for 
reconsideration, the Plaintiff contends that the 90-day period was "new, material information" 
that the Defendant fraudulently and willfully concealed and that she did not learn of until 2017. 
The Plaintiff reasons that the Defendant should have included notice of the 90-day period in the 
September 2004 letter and that the failure to do so tolls the statute of limitations. 
 In other words, the Plaintiff disagrees with the Court's analysis of the 90-day period 
applicable to plan participants who are married at the time of retirement and with the Court's 

finding that the 90-day period is not at issue in this case because the Plaintiff and her ex-husband 
were divorced at the time of his retirement. This challenge to the Court's legal analysis could 
have been brought on a timely direct appeal, and Rule 60(b) is not a vehicle for asserting legal 
error. See Gleash, 308 F.3d at 761 ("[L]legal error is not a proper ground for relief under Rule 
60(b)."). Likewise, the Plaintiff has not identified any exceptional circumstances that warrant 
reopening the judgment under Rule 60(b)(6). Therefore, the Plaintiff has not established any 
basis under Rule 60(b) for the Court to reconsider its April 15, 2019 Opinion and Order 
dismissing the Plaintiff's Complaint. 

 CONCLUSION 
 For the foregoing reasons, the Plaintiff's Motion Pursuant to Federal Rule of Civil 
Procedure 59(a)(2), (b) and (e) [ECF No. 36] and Motion Pursuant to Federal Rule of Civil 
Procedure 60(a) and (b)(6) [ECF No. 37] are DENIED. 
 SO ORDERED on August 5, 2019. 
 s/ Theresa L. Springmann 
 CHIEF JUDGE THERESA L. SPRINGMANN 
 UNITED STATES DISTRICT COURT