                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                July 16, 2013

                                                            Elisabeth A. Shumaker
                                                                Clerk of Court
STATE OF OKLAHOMA, ex rel.,
JOHN DOAK, Insurance Commissioner,
as receiver for Imperial Casualty and
Indemnity Company,

             Plaintiff-Appellant,

v.                                                  No. 12-6179
                                             (D.C. No. 5:11-CV-00863-C)
ACRISURE BUSINESS                                   (W.D. Okla.)
OUTSOURCING SERVICES, LLC;
ACRISURE, LLC; CAMPBELL
MANAGEMENT GROUP, INC.,

             Defendants-Appellees,

and

PATRICK MONTGOMERY;
EMPLOYMENT TRADITIONS, INC.;
PEOPLE ESSENTIALS, INC.; E.T. 2,
INC.; E.T. 4, INC.; E.T. 6, INC.; E.T. 10,
INC.; CFC I/ET, INC.; CFC II/ET, INC.;
MONTGOMERY, INC.,

           Defendants.
________________________________

STATE OF OKLAHOMA, ex rel.,
JOHN DOAK, Insurance Commissioner,
as receiver for Park Avenue Property and
Casualty Insurance Company,

             Plaintiff-Appellant,

v.                                                  No. 12-6180
                                             (D.C. No. 5:11-CV-00864-C)
ACRISURE BUSINESS                                   (W.D. Okla.)
OUTSOURCING SERVICES, LLC;
ACRISURE, LLC; CAMPBELL
MANAGEMENT GROUP, INC.,

             Defendants-Appellees,

and

PATRICK MONTGOMERY;
EMPLOYMENT TRADITIONS, INC.;
PEOPLE ESSENTIALS, INC.; E.T. 2,
INC.; E.T. 4, INC.; E.T. 6, INC.; E.T. 10,
INC.; CFC I/ET, INC.; CFC II/ET, INC.;
MONTGOMERY, INC.,

             Defendants.


                            ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, McKAY and O’BRIEN, Circuit Judges.


      Plaintiff, the State of Oklahoma, on behalf of John Doak, its Insurance

Commissioner and the receiver for Imperial Casualty and Indemnity Company and

Park Avenue Property and Casualty Insurance Company (collectively the Insurers),

appeals from the district court’s orders granting summary judgment in favor of

defendants Acrisure Business Outsourcing Services, LLC (Acrisure Services),
*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.


                                         -2-
Acrisure, LLC (Acrisure), and Campbell Management Group, Inc. (Campbell)

(collectively the ABOS defendants). Mr. Doak also appeals the orders that denied his

motions to: (1) amend the scheduling order and reconsider that order; (2) conduct

additional discovery to respond on summary judgment; and (3) remand the case to

state court under the Burford abstention doctrine. Exercising jurisdiction under

28 U.S.C. § 1291, we affirm the orders.

                                 I. BACKGROUND

      Employment Traditions, Inc. (Traditions), a professional employer

organization, provided employee services to its customers in return for a fee.

Patrick Montgomery was the president and sole shareholder of Traditions. As part of

its services, Traditions purchased high-deductible worker’s compensation insurance

from the Insurers for the benefit of its customers’ employees. Under the

high-deductible policies the Insurers covered catastrophic losses and Traditions was

self-insured for minor injuries. The Insurers were responsible for administering all of

the benefits for worker’s compensation claims, including the payment of claims for

non-catastrophic injuries. In addition to paying premiums and administrative

expenses, Traditions was obligated to reimburse the Insurers for all of the

non-insured claims paid by the Insurers to its customers’ employees. Beginning in

2005, Traditions fell behind in its payments to the Insurers.

      In late 2008, Traditions began negotiations to sell some of its assets to

Campbell, a Michigan corporation that operated a commercial insurance agency.


                                          -3-
Campbell conducted the due diligence for the transaction. The parties eventually

agreed on a deal that covered 126 customer accounts, or 51.6% of Traditions’ assets.

To that end, on December 31, 2008, Campbell sold all of its assets, including

Acrisure Services, a Michigan limited liability company, to Acrisure, a Michigan

limited liability company that was formed expressly for the purpose of acquiring

Campbell. Later that same day, Acrisure Services purchased approximately 51% of

Traditions’ accounts for $4.5 million. Acrisure guaranteed the promissory notes used

to fund part of the purchase of Traditions. At or about the time of the transaction,

Traditions’ employees began to tell its customers, vendors, and creditors that its

name would change to Acrisure Services effective January 1, 2009. Following the

closing, Acrisure Services hired 33 of Traditions’ 38 employees, including

Mr. Montgomery.

      Not long after the transaction closed, the Insurers went into liquidation.

Mr. Doak eventually filed two separate state court suits in which he alleged more

than $9 million in damages on behalf of each Insurer for: (1) breach of contract

against Traditions; (2) negligence and breach of fiduciary duty against

Mr. Montgomery; (3) constructive fraudulent transfer against Traditions,

Mr. Montgomery, and the ABOS defendants; (4) successor liability against the




                                         -4-
ABOS defendants; and (5) a corporate-veil-piercing claim against Traditions and

Mr. Montgomery. The defendants removed the cases to federal court.1

                           II. PROCEDURAL ORDERS

A.    The Scheduling Order

      The scheduling order was entered on September 1, 2011. March 1, 2012, was

designated as the deadline for completion of discovery and other matters such as

dispositive motions. In October 2011, Acrisure and Campbell moved for judgment

on the pleadings on the grounds that they were not parties to the purchase agreement

and therefore could not be liable as a matter of law. Mr. Doak filed an unopposed

motion for extension of time to respond. In his response filed on December 2,

Mr. Doak argued for more time to conduct discovery to determine whether Acrisure

and/or Campbell were the alter-egos of Acrisure Services or had received some of

Traditions’ assets. The district court denied the motion for judgment on the

pleadings on January 30, 2012.

      In the meantime, on November 11, 2011, the ABOS defendants served written

discovery, and in early February 2012, they served a notice to depose Mr. Doak.

Although Mr. Doak eventually responded to the requests for admissions, he never
1
       The district court certified its summary judgment orders as final under
Fed. R. Civ. P. 54(b). As part of the certification order, the court acknowledged the
entry of a consent judgment in favor of Mr. Doak on his claims against defendants
Employment Traditions, Inc., People Essentials, Inc., E.T. 2, Inc., E.T. 4, Inc., E.T. 6,
Inc., E.T. 10, Inc., CFC I/ET, Inc., CFC II/ET, Inc., and Montgomery, Inc. The court
also entered a judgment that dismissed Mr. Doak’s remaining claims against
Mr. Montgomery without prejudice pursuant to a stipulation.


                                          -5-
responded to the interrogatories or requests for production of documents nor did he

appear for deposition.

      On February 15, 2012, just two weeks before the discovery deadline, Mr. Doak

moved to amend the scheduling order to extend all of the deadlines by sixty days.

The motion was filed nearly six weeks after Mr. Doak’s expert witness list and

reports were due and the same day that his witness and exhibit lists were due.

      As grounds, Mr. Doak cited the “pendency of Acrisure and Campbell’s

Motion for Judgment on the Pleadings,” Aplt. App. at 162, as well as the

administrative and litigation demands placed on the “small firm retained by

[Mr. Doak] to act as assistant receiver,” id. at 161. According to Mr. Doak, his

lawyers needed additional time to confer with the assistant receiver to not only

respond to the past-due discovery, but to “coordinat[e] with the assistant receiver

regarding the preparation of discovery to Defendants.” Id. at 162. Although he did

not say so Mr. Doak suggested that his counsel intended to serve discovery before the

end of January 2012, but were unable to do so because of the unexpected death on

January 24 of a lawyer’s relative. He stated that he did not move for an extension on

January 24 because opposing counsel led his lawyers to believe that they would agree

to an extension.

      The ABOS defendants objected on the grounds that Mr. Doak “has failed to

cooperate in discovery or comply with the Court’s scheduling Order and the actions

of his counsel indicate [he] does not intend to comply.” Id. at 195. They disavowed


                                         -6-
having agreed to an extension and insisted that they were willing only to discuss an

extension of time for Mr. Doak to respond to the past-due discovery. On March 1,

2012, while Mr. Doak’s motion was pending, the ABOS defendants filed for

summary judgment. On March 2, the district court denied Mr. Doak’s motion to

extend the deadlines.

       “A schedule may be modified only for good cause and with the judge’s

consent.” Fed. R. Civ. P. 16(b)(4). “[T]he court may modify the schedule on a

showing of good cause if it cannot reasonably be met despite the diligence of the

party seeking the extension.” Fed. R. Civ. P. 16 advisory committee’s note (1983

Amendment Discussion).

       “We review a court’s refusal to enter a new scheduling order for abuse of

discretion.” Rimbert v. Eli Lilly & Co., 647 F.3d 1247, 1254 (10th Cir. 2011). “An

abuse of discretion occurs when the district court’s decision is arbitrary, capricious or

whimsical, or results in a manifestly unreasonable judgment.” Moothart v. Bell,

21 F.3d 1499, 1504-05 (10th Cir. 1994) (internal quotation marks omitted). See also

Bylin v. Billings, 568 F.3d 1224, 1231 (10th Cir. 2009) (recognizing that “appellate

courts that have applied Rule 16 have afforded wide discretion to district courts’

applications of that rule”).

       There was no abuse of discretion. As the district court explained in its order,

Mr. Doak “has not shown good cause for extension: In addition to continuously




                                          -7-
missing deadlines and failing to respond to discovery requests, [Mr. Doak]

misrepresents the pendency of a motion as a basis for extension.” Aplt. App. at 330.

      On appeal, Mr. Doak argues that his lawyers were overwhelmed by having to

respond to the motion for judgment on the pleadings and the discovery requests. But

the motion for judgment on the pleadings was not filed until October 21, 2011, nearly

two months after entry of the scheduling order and Mr. Doak’s response stated that

he needed to conduct discovery to prepare a response. There was ample time before

the motion was filed and after Mr. Doak responded to have conducted discovery.

Nor are we swayed by the argument that the burden of responding to discovery

requests that were served in mid-November prevented counsel from conducting their

own discovery. Indeed, it appears that the responses were being managed by the

assistant receiver’s office and thus Mr. Doak’s lawyers could have pursued their own

discovery. In any event, these “complications” should have been evident long before

February 2012, when Mr. Doak filed his motion to extend the deadlines. Like the

district court, we are sympathetic to events such as the unexpected death of a family

member; however, Mr. Doak was already in the eleventh hour and has never

explained why a different lawyer did not prepare any discovery. In short, there was

no abuse of discretion.




                                         -8-
B.    The Motion to Reconsider and Rule 56(d) Motion

      On March 22, 2012, Mr. Doak filed two motions; the first to reconsider the

denial of his motion to extend the deadlines and the second under Fed. R. Civ. P.

56(d) to delay consideration of summary judgment.

      As to the motion to reconsider, Mr. Doak argued that the district court

misunderstood his original motion to mean that the defendants’ motion for judgment

on the pleadings was still pending, when what he really meant is that his discovery

efforts were delayed while the motion was pending from late October 2011 through

late January 2012, when the court denied it. He stated that it was always his

counsel’s intention to conduct discovery and explained for the first time that without

the information, he “may be unable to advance [his] claims.” Aplt. App. at 338. He

also repeated his previous arguments concerning the alleged burdensome discovery,

the press of other business, and the relative’s death. According to Mr. Doak, the

order “should be reconsidered to prevent the manifest injustice that would result.”

Id. at 334. Attached to the motion to reconsider were Mr. Doak’s proposed

interrogatories and request for production of documents.

      The district court applied the standard in Fed. R. Civ. P. 59(e) in its analysis

and denied the motion. “Grounds warranting a motion to reconsider include (1) an

intervening change in the controlling law, (2) new evidence previously unavailable,

and (3) the need to correct clear error or prevent manifest injustice.” Servants of

Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). A motion for


                                          -9-
reconsideration “is not appropriate to revisit issues already addressed or advance

arguments that could have been raised in prior briefing.” Id.

      The denial of a Rule 59(e) motion is reviewed for an abuse of discretion.

ClearOne Commc’ns, Inc. v. Biamp Sys., 653 F.3d 1163, 1178 (10th Cir. 2011). “A

district court abuses its discretion if it made a clear error of judgment or exceeded the

bounds of permissible choice in the circumstances.” Id. (internal quotation marks

omitted).

      Again, there was no abuse of discretion. All of the arguments, with one

exception, could have been raised or were raised and considered by the district court.

As to the alleged misunderstanding, the court concluded that “[e]ven if [it] had

misconstrued the sentence referring to the pendency of the motion in its prior Order,

that misconstruction would do nothing to alter [its] prior Order because [Mr. Doak’s]

failure to conduct discovery remains constant, which was the basis for denying the

extension.” Aplt. App. at 451. Nor can we say that there was manifest injustice.

The simple fact is that Mr. Doak’s lawyers never propounded a single interrogatory,

request for admission, or document request from September 1, 2011 through the

discovery cutoff, which was March 1, 2012. Nor did they notice a single deposition.

      In support of his Rule 56(d) motion, Mr. Doak incorporated the arguments set

forth in the motion to reconsider, and attached the affidavit of a lawyer who repeated

the reasons why discovery had not been conducted, and the affidavit of the assistant

receiver who stated what evidence was needed to respond on summary judgment.


                                         - 10 -
      For all intents and purposes, when the district court denied the motion to

reconsider, the Rule 56(d) motion became moot because there was not going to be

any discovery. Mr. Doak acknowledges as much when he concedes that “[d]enial of

the first motion naturally leads to the denial of the second.” Aplt. Opening Br. at 31.

He nonetheless presses forward and argues generically that the scheduling order

simply did not give him enough time to conduct discovery.

      “The general principle of Rule 56([d])2 is that summary judgment should be

refused where the nonmoving party has not had the opportunity to discover

information that is essential to his opposition.” Price ex rel. Price v. W. Res., Inc.,

232 F.3d 779, 783 (10th Cir. 2000) (brackets and internal quotation marks omitted)

(footnote added). Rule 56(d) requires the party opposing summary judgment to file

an affidavit “specifi[ying] [the] reasons [why] it cannot present facts essential to

justify its opposition.” “This includes identifying (1) the probable facts not

available, (2) why those facts cannot be presented currently, (3) what steps have been

taken to obtain these facts, and (4) how additional time will enable the party to obtain

those facts and rebut the motion for summary judgment.” Valley Forge Ins. Co. v.

Health Care Mgmt. Partners Ltd., 616 F.3d 1086, 1096 (10th Cir. 2010) (brackets

and internal quotation marks omitted).



2
      The language that appeared in subsection (f) was moved to subdivision (d)
“without substantial change.” Fed. R. Civ. P. 56 advisory committee’s notes
(2010 Amendments).


                                          - 11 -
      “We review a district court’s decision denying a Rule 56([d]) discovery

request for abuse of discretion.” Id. “[T]he abuse of discretion standard implies a

degree of discretion invested in judges to render a decision based upon what is fair in

the circumstances and guided by the rules and principles of law.” Id. (brackets and

internal quotation marks omitted).

      Like the affidavit in Valley Forge, the affidavits in this case “fall[] short

against this yardstick,” id., because they do not describe why the facts could not have

been presented or what steps were taken to obtain the facts. As the district court

explained, Mr. Doak had procedures available to him to obtain the information but

never conducted any discovery. Thus, the court did not abuse its discretion.

                           III. SUMMARY JUDGMENT

A.    Standard of Review

      Mr. Doak appeals from the grant of summary judgment in favor of the ABOS

defendants on his claims for successor liability and fraudulent transfer. “In diversity

cases, the laws of the forum state govern our analysis of the underlying claims, while

federal law determines the propriety of the district court’s summary judgment.”

Morris v. Travelers Indem. Co. of Am., 518 F.3d 755, 758 (10th Cir. 2008). “In

making choice of law determinations, a federal court sitting in diversity must apply

the choice of law provisions of the forum state in which it is sitting.” Shearson

Lehman Bros., Inc. v. M & L Invs., 10 F.3d 1510, 1514 (10th Cir. 1993). “We review

the district court’s determinations of state law de novo.” Ayala v. United States,


                                         - 12 -
49 F.3d 607, 611 (10th Cir. 1995). The district court applied Michigan law to the

claim for successor liability without objection from either side and the parties

continue to argue that Michigan law applies to this claim on appeal. We agree that

Michigan law applies. As to the claim for fraudulent transfer, the court did not

decide whether Michigan or Oklahoma law applied because the law is virtually the

same in both states and the claim failed regardless of which state law applied. Again,

we agree with this approach.

      “We review a district court’s grant of summary judgment de novo, applying

the same standard as the district court.” Helm v. Kansas, 656 F.3d 1277, 1284

(10th Cir. 2011). Summary judgment is appropriate “if the movant shows that there

is no genuine dispute as to any material fact and the movant is entitled to judgment as

a matter of law.” Fed. R. Civ. P. 56(a). “In determining whether summary judgment

is proper, we view the evidence in the light most favorable to the non-moving party.”

Helm, 656 F.3d at 1284.

B.    Successor Liability

      Under Michigan law,

      where the purchase is accomplished by an exchange of cash for assets,
      the successor is not liable for its predecessor’s liabilities unless one of
      five narrow exceptions applies. . . . (1) where there is an express or
      implied assumption of liability; (2) where the transaction amounts to a
      consolidation or merger; (3) where the transaction was fraudulent;
      (4) where some of the elements of a purchase in good faith were
      lacking . . . ; or (5) where the transferee corporation was a mere
      continuation or reincarnation of the old corporation.



                                         - 13 -
Foster v. Cone-Blanchard Mach. Co., 597 N.W.2d 506, 509-10 (Mich. 1999)

(internal quotation marks omitted).

      1. First Exception – Assumption of Liability

      We agree with the ABOS defendants that there are no facts in the record to

indicate an express or implied assumption of liability and Mr. Doak appears to

concede the issue. Therefore, the first exception does not apply.

      2. Second Exception – De Facto Merger

      As to the second exception, Mr. Doak argues that there was sufficient evidence

from which a jury might find a de facto merger. Michigan law recognizes a de facto

merger in instances where:

             (1) There is a continuation of the enterprise of the seller
      corporation, so that there is a continuity of management, personnel,
      physical location, assets, and general business operations.
             (2) There is a continuity of shareholders which results from the
      [p]urchasing corporation paying for the acquired assets with shares of
      its own stock, this stock ultimately coming to be held by the
      shareholders of the seller corporation so that they become a constituent
      part of the purchasing corporation.
             (3) The seller corporation ceases its ordinary business
      operations, liquidates, and dissolves as soon as legally and practically
      possible.
             (4) The purchasing corporation assumes those liabilities and
      obligations of the seller ordinarily necessary for the uninterrupted
      continuation of normal business operations of the seller corporation.

Turner v. Bituminous Cas. Co., 244 N.W.2d 873, 879 (Mich. 1976) (emphasis and

internal quotation marks omitted).

      Mr. Doak argues there can be a de facto merger in the context of a cash

transaction. On the other hand, the ABOS defendants argue that the requirement

                                        - 14 -
of shareholder continuity has been excused only in product liability cases. We need

not decide the issue because there is no evidence of two of the other three Turner

factors.

       As to the first Turner requirement, it is correct that 33 of Traditions’

38 employees, including Mr. Montgomery, went to work for Acrisure Services.

Setting aside the fact that there were several employees who were not hired,

Mr. Doak presented no evidence to rebut the affidavit of Acrisure Services’

secretary/treasurer that the company had its own managers who had never been

affiliated with Traditions, as well as its own offices, equipment, and business

operations.

       As to the third Turner requirement for a de facto merger, the district court

found that a letter from Traditions’ lawyer stating the company ceased operations on

December 31, 2008, weighed in Mr. Doak’s favor. But as the court found, “[t]he

remaining factor[], however, do[es] not.” Aplt. App. at 731. There was no evidence

that Acrisure Services assumed any of the liabilities or obligations of Traditions. To

the contrary, rather than assuming the obligations and liabilities of Traditions’

contracts, the undisputed evidence was that within two weeks of the closing, Acrisure

Services executed its own, new contracts with all of Traditions’ customer accounts

that were part of the sale.

       According to Mr. Doak, the district court erred by adopting an all-or-nothing

approach to its determination of whether there was a de facto merger. His apparent


                                          - 15 -
argument is that it is not necessary to meet all four Turner requirements to have a

de facto merger. Even if we accept Mr. Doak’s argument that a stock purchase is not

required, he has not cited any authority that only some, but not all, of the remaining

requirements need to be met. For example, taken to its logical conclusion this

argument would mean that a de facto merger occurred simply in the face of a seller

corporation ceasing its ordinary business operations shortly after the sale. Michigan

law requires more. See Turner, 244 N.W.2d at 879.

      3. Third & Fourth Exceptions – Fraudulent Transaction or Lack of Good

      The third and fourth exceptions are where the transaction is fraudulent or some

of the elements of a purchase in good faith are lacking. The district court found that

there was no evidence to substantiate Mr. Doak’s arguments that the ABOS

defendants should have known that Traditions’ liabilities significantly outweighed its

assets or that Traditions was prohibited from transferring its accounts unless its

payments were current.

      Mr. Doak raises essentially the same arguments on appeal. First, he says that

it “is unlikely” that one or more of the ABOS defendants did not know about “the

contractual obligation [Traditions] had to the [Insurers] not to engage in the sale of

more than 50% of its assets without prior authorization.” Aplt. Opening Br. at 38. In

any event, he argues that the ABOS defendants “engaged in the Transaction with full

understanding of the abysmal financial condition of [Traditions] and its affiliates.”

Id. We agree with the district court’s reasoning that Mr. Doak “has no basis for


                                         - 16 -
substantiating th[ese] claim[s]–he can only allege what he believes [the ABOS]

[d]efendants would have known. Nor does [Mr. Doak] explain how such a contract,

between a third-party and [Traditions] would implicate the [transaction] between

Traditions and [Acrisure Services], and exemplify . . . bad faith.” Aplt. App. at

734-35.

      4. Fifth Exception – Continuation

      The fifth and final exception announced in Foster – continuity of enterprise –

is largely the same as the second exception for a consolidation or merger, but has the

additional requirement that “the purchasing corporation holds itself out to the world

as the effective continuation of the seller corporation.” Foster, 597 N.W.2d at 510.

We have previously explained the lack of evidence sufficient to satisfy the second

Foster exception. We also agree with the district court that Mr. Doak did not come

forward with any evidence to meet the additional requirement. Although there was

evidence that Traditions’ employees began to disseminate information about a new

name and contact information, Traditions was the seller corporation, not the

purchasing corporation. The record is devoid of any evidence that any of the ABOS

defendants held themselves out as the effective continuation of Traditions; indeed,

the evidence was to the contrary.




                                        - 17 -
C.     Fraudulent Transfer

       To establish a claim of constructive fraudulent transfer, Mr. Doak must show

that

       [a] transfer made or obligation incurred by a debtor is fraudulent as to a
       creditor whose claim arose before the transfer was made or the
       obligation was incurred if the debtor made the transfer or incurred the
       obligation without receiving a reasonably equivalent value in exchange
       for the transfer or obligation and the debtor was insolvent at that time or
       the debtor became insolvent as a result of the transfer or obligation.

Mich. Comp. Laws § 566.35(1); Okla. Stat. tit. 24, § 117.A. Thus, Mr. Doak was

required to come forward with evidence from which a reasonable trier of fact could

find that the $4.5 million received by Traditions was not “a reasonably equivalent

value” for slightly more than 50% of its accounts and that Traditions became

insolvent when the transaction closed or became insolvent as a result of the sale.

       As the district court noted, “as the party challenging reasonably equivalent

value, [Mr. Doak] bears the burden of proof on this issue, but proffers nothing to

support his contention that [Acrisure Services] failed to pay reasonably equivalent

value.” Aplt. App. at 736. Instead, what Mr. Doak attempted to do was to launch a

Daubert challenge3 to the ABOS defendants’ expert opinion that the transfer was

made for at least, if not more, than reasonably equivalent value. As the court noted,

the Daubert challenge came well after the deadline and Mr. Doak “cannot do an end


3
       Pursuant to Federal Rule of Evidence 702, a district court must assess
proffered expert testimony to ensure it is both relevant and reliable. Daubert v.
Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993).


                                         - 18 -
run on this deadline by masquerading a Daubert motion as a response to summary

judgment.” Id. More to the point, we agree with the court that the expert opinion is

irrelevant because Mr. Doak did not come forward with any evidence that Traditions

received less than reasonably equivalent value or that it was insolvent at the time of

the transfer, “the two elements [Mr. Doak] must establish to succeed on his

constructive fraudulent transfer claim.” Id.

      On appeal, Mr. Doak devotes several pages of his brief to pressing the Daubert

issue. But as the district court explained, even if the expert’s opinion is ignored,

Mr. Doak failed in his burden to present any evidence that Traditions was insolvent

at the time of the transfer and that the price paid was not reasonably equivalent value.

The same flaw exists on appeal.

                           IV. BURFORD ABSTENTION

      While the motion for summary judgment was pending, Mr. Doak filed a

motion to remand the case to state court under the Burford abstention doctrine, which

generally recognizes that it may be appropriate for a federal court to abstain in a case

where a decision from the federal court may frustrate the purpose of a complex state

administrative system. Burford v. Sun Oil Co., 319 U.S. 315, 332 (1943). The

district court granted the motion for summary judgment and then denied the motion

for remand.

      On appeal, Mr. Doak suggests that the district court failed to consider his

substantive arguments for abstention and decided instead that the motion was moot in


                                          - 19 -
light of the grant of summary judgment. This argument mischaracterizes the court’s

order. Despite finding the motion was moot, the court nonetheless proceeded to

analyze the merits and found that abstention was unwarranted. We find no error.

      The leading case in this circuit concerning Burford abstention is Grimes v.

Crown Life Insurance Company, 857 F.2d 699, 704-05 (10th Cir. 1988), in which we

held the following factors relevant to determine whether abstention is proper:

          (1) whether the suit is based on a cause of action which is
          exclusively federal . . . (2) whether the suit requires the court to
          determine issues which are directly relevant to the liquidation
          proceeding or state policy in the regulation of the insurance
          industry . . . (3) whether state procedures indicate a desire to
          create special state forums to regulate and adjudicate these
          issues . . . and (4) whether difficult or unusual state laws are at
          issue.

(citations omitted).

      Since our decision in Grimes, the Supreme Court has narrowed application of

the Burford abstention doctrine. See Quackenbush v. Allstate Ins. Co., 517 U.S. 706,

728 (1996) (“Burford represents an extraordinary and narrow exception to the duty of

the District Court to adjudicate a controversy properly before it.” (internal quotation

marks omitted)); see also New Orleans Pub. Serv., Inc. v. Council of New Orleans,

491 U.S. 350, 361 (1989) (NOPSI) (Burford abstention is proper only “when there

are difficult questions of state law bearing on policy problems of substantial public

import whose importance transcends the result in the case . . . or [] where the

exercise of federal review of the question in a case and in similar cases would be



                                         - 20 -
disruptive of state efforts to establish a coherent policy with respect to a matter of

substantial public concern.” (internal quotation marks omitted)).

       But we need not decide whether the more narrow tests of Quackenbush and

NOPSI apply, because even applying the broader test in Grimes, which Mr. Doak

argues this court should do, the district court correctly denied the motion to remand.

Like the district court, we acknowledge that the first Grimes factor weighs in favor of

Mr. Doak because the suit is not based on any federal causes of action. We are less

convinced that the district court correctly found that the third Grimes factor favors

Mr. Doak. It does not matter, however, because the second and fourth factors are not

present.

       The second Grimes factor does not apply because the case has nothing to do

with the liquidation of the Insurers. Further, as the ABOS defendants point out, they

have “not asserted a counterclaim against [Mr. Doak] and, thus, ha[ve] not subjected

[themselves] to the statutory regime of the insolvent [Insurers’] creditors.” Aplee.

Br. at 19.

       Mr. Doak argues that a motion in limine to exclude a spreadsheet raises a

challenge by the ABOS defendants “related to the rights and liabilities of the

receiver . . . that implicated even the [r]eceiver’s standing to bring the action.”

Aplt. Opening Br. at 15. This is incorrect. As explained by the ABOS defendants,

this “evidentiary challenge[] did not substantively challenge the administrative

scheme of insurance in Oklahoma – it reiterated ABOS’ objection that [Mr. Doak]


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should not, in fairness, be allowed to utilize evidence that was the focal point of

ABOS’ discovery requests to which [Mr. Doak] failed to respond.” Aplee. Br. at 17.

Further, the motion to exclude was based on its alleged unreliability and

trustworthiness of the spreadsheet. Both contentions are borne out by the record.

Aplt. App. at 586; Aplee. Supp. App. at 45. Thus, there is no merit to Mr. Doak’s

argument that the case has anything to do with Oklahoma state policy in the

regulation of the insurance industry.

      The fourth Grimes factor, which requires the presence of difficult or unusual

questions of state law, is entirely lacking. The issues were neither complex nor

difficult. As the district court explained, “[d]espite the involvement of insolvent

insurers, this case entails breach of contract, negligence, and breach of fiduciary

claims–none of which present ‘difficult questions of state law bearing on policy

problems of substantial public import whose importance transcends the result’ or

raise ‘a hotly disputed question of state law.’” Aplt. App. at 718 (quoting NOPSI,

491 U.S. at 361).

                                  V. CONCLUSION

      The judgment of the district court is affirmed.


                                                  Entered for the Court


                                                  Mary Beck Briscoe
                                                  Chief Judge



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