           SUMMARY OPINION AND ORDER; NOT INTENDED FOR PUBLICATION
                          IN THE OFFICIAL REPORTERS

                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


COLEMAN SCOTT MOFFETT,
on his own behalf and on behalf of all other
persons similarly situated,

                       Plaintiffs,                   Civil Action No. 09-cv-1915 (RLW)

                       v.

PRUDENTIAL LIFE INSURANCE
COMPANY OF AMERICA; HILDA L.
SOLIS, in her official capacity as Secretary
of the United States Department of Labor,

                       Defendants.


CHRISTOPHER C. OUELLETTE,
on his own behalf and on behalf of all other
persons similarly situated,

                       Plaintiffs,                   Civil Action No. 11-cv-454 (RLW)

                       v.

PRUDENTIAL FINANCIAL, INC. (d/b/a
PRUDENTIAL INSURANCE COMPANY
OF AMERICA; and HILDA L. SOLIS
(Secretary of the Department of Labor),

                       Defendants.

                                     MEMORANDUM OPINION 1


1
         This unpublished memorandum opinion is intended solely to inform the parties and any
reviewing court of the basis for the instant ruling, or, alternatively, to assist in any potential
future analysis of the res judicata, law of the case, or preclusive effect of the ruling. The Court
has designated this opinion as “not intended for publication,” but this Court cannot prevent or
prohibit the publication of this opinion in the various and sundry electronic and legal databases
(as it is a public document), and this Court cannot prevent or prohibit the citation of this opinion
by counsel. Cf. FED. R. APP. P. 32.1(a). Nonetheless, as stated in the operational handbook
adopted by our Court of Appeals, “counsel are reminded that the Court’s decision to issue an
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                           IN THE OFFICIAL REPORTERS

       This action centers on Plaintiff Coleman Scott Moffett’s (“Moffett”) and Christopher C.

Ouellette’s (“Ouellette”) (collectively, “Plaintiffs”) challenge to Prudential Life Insurance

Company of America’s (“Prudential”) employer-based disability plan.               In short, Plaintiffs

contend that the structure of Prudential’s plan—through which Prudential not only makes initial

determinations on participants’ eligibility for benefits, but also reviews those determinations

through an internal appeals process—does not provide for a “full and fair” review of

participants’ claims by a neutral party. Moffett’s and Ouellette’s Complaints were consolidated

by the Court on March 31, 2011, as both cases asserted nearly identical claims against the same

defendants—(1) alleging Fifth Amendment due process violations against Prudential; (2)

alleging Fifth Amendment due process claims against Hilda L. Solis, in her official capacity as

the Secretary of the Department of Labor; and (3) challenging the Employee Retirement Income

Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001-1461, and various United States Department

of Labor Rules and Regulations as unconstitutional under the due process clause.

       Both Prudential and the Secretary moved to dismiss Plaintiffs’ Complaints, and on

September 21, 2011, the Court granted their motions and dismissed these consolidated cases with

prejudice. (Dkt. Nos. 27, 28). 2 The Court held that Plaintiffs’ due process claims against

Prudential, which derived from the Fifth Amendment, were invalid as a matter of law because

Prudential is not a state actor subject to constitutional scrutiny. (Id.). In addition, the Court

ruled that Plaintiffs’ claims against the Secretary were invalid because Plaintiffs were unable to

satisfy the jurisdictional prerequisite of Article III standing to pursue those claims. (Id.).




unpublished disposition means that the Court sees no precedential value in that disposition.”
D.C. Circuit Handbook of Practice and Internal Procedures 43 (2011).
2
        Unless otherwise indicated, the Court’s docket references herein are to the docket for the
lead case of these consolidated actions, Moffett, et al. v. Prudential Insurance, et al., 09-cv-1915.
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                          IN THE OFFICIAL REPORTERS

       Plaintiffs have since filed several post-judgment motions, which are now before the

Court. First, Plaintiffs filed a motion to alter or amend the Court’s judgment, under Federal Rule

of Civil Procedure 59(e). (Dkt. No. 29). Through that motion, Plaintiffs principally assert that

the Court’s ruling as to their claims against Prudential through Count I “directly conflicts” with a

recent Supreme Court decision, Cigna Corp. v. Amara, _ U.S._, 131 S. Ct. 1866, 179 L. Ed. 2d

843 (2011). They also contend that the Court’s standing analysis, which disposed of Counts II

and III against the Secretary, overlooked the allegations of Ouellette’s Complaint, which

Plaintiffs argue did allege a cognizable injury-in-fact for purposes of Article III. Along with

their Rule 59(e) motion, Plaintiffs also filed a motion to amend their complaints under Federal

Rule of Civil Procedure 15(a) and for relief of judgment of dismissal under Federal Rules of

Civil Procedure 60(a) and (b)(6). (Dkt. No. 30).

       Having considered Plaintiffs’ motions, Prudential’s and the Secretary’s opposition

briefing, and Plaintiffs’ replies, for the following reasons, the Court will DENY Plaintiffs’

motions in all respects.



                                           ANALYSIS

   A. Plaintiffs’ Motion to Alter or Amend Judgment Under Rule 59(e)

       Motions to alter or amend under Rule 59(e) “are disfavored and relief from judgment is

granted only when the moving party establishes extraordinary circumstances.” Niedermeier v.

Office of Max S. Baucus, 153 F. Supp. 2d 23, 28 (D.D.C. 2001) (citing Anyanwwutaku v. Moore,

151 F.3d 1053, 1057 (D.C. Cir. 1998)). As this Circuit has explained, a Rule 59(e) motion “need

not be granted unless the district court finds that there is an intervening change of controlling

law, the availability of new evidence, or the need to correct a clear error or prevent manifest



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                          IN THE OFFICIAL REPORTERS

injustice.” Messina v. Krakower, 439 F.3d 755, 758 (D.C. Cir. 2006) (quoting Firestone v.

Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996)). Consequently, “a losing party may not use a

Rule 59 motion to raise new issues that could have been raised previously.” Kattan by Thomas

v. Dist. of Columbia, 995 F.2d 274, 276 (D.C. Cir. 1993). Nor is a Rule 59 motion a means by

which to “reargue facts and theories upon which a court has already ruled,” New York v. United

States, 880 F. Supp. 37, 38 (D.D.C. 1995), or “a chance . . . to correct poor strategic choices,”

SEC v. Bilzerian, 729 F. Supp. 2d 9, 15 (D.D.C. 2010).

       Through their motion, Plaintiffs conclusorily assert that all of the potential Rule 59(e)

grounds for relief require the Court to revisit its dismissal ruling. (Dkt. No. 33 (“Pls.’ Reply”) at

2). But Plaintiffs do not point to any “new evidence” that impacts the Court’s analysis, nor do

they identify any “intervening change in controlling law” that would dictate a different result.

Rather, Plaintiffs appear to solely contend that the Court should amend its decision because it

was premised on “clear legal error” and/or creates “manifest injustice.” As explained below,

Plaintiffs fail to establish that they are entitled to Rule 59(e) relief on these grounds as to any of

their previously-dismissed claims.

       First, with respect to Count I, Plaintiffs principally contend that the Supreme Court’s

decision in Cigna Corporation v. Amara, _ U.S. _, 131 S. Ct. 1866, 179 L. Ed. 2d 843 (2011),

somehow undermines this Court’s dismissal of their claims against Prudential. Plaintiffs are

wrong. In Amara, the Supreme Court was presented with the specific issue of whether the

district court, upon determining that Cigna violated ERISA’s disclosure obligations in

connection with the change of its pension plan, properly “reformed” the terms of that plan

pursuant to 29 U.S.C. § 1132(a)(1)(B), and, if so, whether the court applied the appropriate legal

standards in reforming the plan. Amara, 131 S. Ct. at 1870-71. In sum, the Court concluded that



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                          IN THE OFFICIAL REPORTERS

§ 1132(a)(1)(B) did not authorize such a reformation but explained that “a different equity-

related ERISA provision . . . authorizes forms of relief similar to those that the court entered.”

Id. at 1871 (citing to 29 U.S.C. § 1132(a)(3)). The Court then outlined the relevant “equitable

principles that the court might apply on remand” and remanded the matter for further

proceedings. Id.

       In relying on Amara, Plaintiffs appear to ignore the actual holding of the Court, instead

choosing to seize upon the Justices’ discussion of a single rejected argument advanced in support

of affirmance—that the district court had not really “reformed” Cigna’s plan, it simply enforced

the plan’s terms as written, including certain terms encompassed by the plan’s disclosures and

summary plan descriptions. See id. at 1877. The Court disagreed with that argument because,

among other reasons, it was unwilling to find that “the terms of statutorily modified plan

summaries (or summaries of plan modifications) necessarily may be enforced . . . as the terms of

the plan itself.” Id. Put differently, the Amara Court declined to find that terms of the summary

plan descriptions should be characterized as terms of the plan itself.

       Plaintiffs now argue that this passage from the Amara case requires the reinstatement of

their due process claims against Prudential. Of course, this Court previously dismissed those

claims on the ground that Prudential was not a “state actor” susceptible to constitutional due

process claims under the Fifth Amendment. (Dkt. No. 27 (“Mem. Op.”) at 8-15). On that issue,

Plaintiffs now attempt to assail the Court’s reasoning that Prudential’s authority to determine a

plan participant’s benefit eligibility and to review those initial determinations “was created, not

through governmental enactment but by the contract between Plaintiffs’ employers and

Prudential.” (Pls.’ Mem. at 4-5).      Plaintiffs argue that, to the extent the Court looked to

Prudential’s summary plan documents rather than the actual plan terms themselves to support its



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            SUMMARY OPINION AND ORDER; NOT INTENDED FOR PUBLICATION
                           IN THE OFFICIAL REPORTERS

reasoning, its holding cannot stand.       The Court does not agree.      Not only do Plaintiffs

misunderstand Amara’s impact, they also oversimplify the Court’s basis for dismissing their

claims against Prudential in the first place.

       First, the Amara decision has absolutely no impact on this Court’s conclusion that

Prudential is not a “state actor.” In reality, other than the fact that Amara also involved an

employee-benefits plan administered under ERISA’s broad statutory scheme, that case has

almost nothing in common with the instant matter. As Prudential correctly points out, the critical

issue underlying the Court’s dismissal of the claims in this case was not whether certain plan

terms were properly included in Prudential’s summary plan documents, rather than within the

four corners of the plan document itself. (Dkt. No. 31 (“Prud. Opp’n”) at 4). Instead, the critical

issue was whether Prudential’s authority is rooted in a private agreement with Plaintiffs’

employers or in some governmental delegation, and the Court concluded that it was the former.

Nothing in Amara changes that result. Indeed, even if the Court were to credit Plaintiffs’

argument to some degree, which it does not, they would be no closer to establishing that

Prudential is a “state actor” subject to constitutional scrutiny. At most, Plaintiffs might raise a

credible issue as to whether certain terms in the summary plan documents are terms that the

Court can “enforce” within the meaning of § 1132(a)(1)(B). See Amara, 131 S. Ct. at 1876-78.

But that question is obviously not before the Court and has no bearing on its prior holding.

       In addition, Plaintiffs’ arguments surrounding the Amara case are weakened by the fact

that these same arguments were available to them earlier. Kattan by Thomas, 995 F.2d at 276;

Fox v. Am. Airlines, Inc., 389 F.3d 1291, 1296 (D.C. Cir. 2004). The Amara decision was issued

on May 16, 2011, more than two weeks before Plaintiffs filed their supplemental memorandum

in opposition to Prudential’s and the Secretary’s motions to dismiss on May 31, 2011. (Dkt. No.



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                          IN THE OFFICIAL REPORTERS

24). To the extent that Plaintiffs found Amara supportive of their position, they could have

advanced these arguments at that time, but they did not. Plaintiffs concede as much, (see Dkt.

No. 34 (“Pls.’ Sec’y Reply”) at 3-4), but proceed to criticize Prudential for failing to apprise the

Court of the Amara decision, strongly suggesting that its failure to do so amounted to a violation

of the D.C. Rules of Professional Conduct, (id. at 4-5). This sort of mudslinging is altogether

unpersuasive and unseemly, particularly given the Court’s conclusion that Amara is not even

germane to the issues of this matter, let alone “outcome determinative,” as Plaintiffs contend. In

sum, Plaintiffs fail to establish any basis for relief under Rule 59(e) with respect to the Court’s

dismissal of their claims against Prudential (Count I).

         Turning to Plaintiffs’ claims against the Secretary, the Court dismissed those claims

because it found that Plaintiffs failed to allege a cognizable injury-in-fact. Specifically, the

Court explained that Plaintiffs’ Complaints were “carefully crafted” to avoid alleging a claim

under ERISA’s civil enforcement provision, 29 U.S.C. §1132(a)(1)(B), instead asserting

procedural injuries—i.e., that they were purportedly unable to obtain an impartial review of their

benefits determinations under Prudential’s plan.          (Mem. Op. at 15-17).     Insofar as those

procedural-type allegations were speculative and devoid of any “particularized injury,” the Court

held that Plaintiffs lacked standing to pursue their claims against the Secretary. (Id.).

       Plaintiffs now assert that this finding was in error, arguing that Ouellette’s Complaint did

allege a claim for benefits due under § 1132(a)(1)(B). To this end, they point to the prefatory

paragraphs of Ouellette’s Complaint, which state that “this Court has authority to grant

individual relief to the named Plaintiff pursuant to 29 U.S.C. § 1132(a)(1)(B) for benefits due

him under the terms of his plan.” (Pls.’ Mem. at 6 (quoting Ouellette v. Prudential Insurance, et

al., 11-cv-0454 Dkt. No. 1 (“Ouellette Compl.”) at ¶ 5)). They also cite to language from



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                             IN THE OFFICIAL REPORTERS

Ouellette’s prayer for relief, which seeks “the benefits due him.” (Id. (quoting Ouellette Compl.”

at ¶ 59)). Based on these allegations, Plaintiffs argue that Ouellette “plainly states a claim for

benefits due” and has standing to pursue his claims against the Secretary. 3 The Court disagrees.

       As both Prudential and the Secretary rightly argue, Plaintiffs failed to advance this theory

in opposing the dismissal of their claims in the first place. To be sure, this precise issue was

squarely teed up by the Secretary, who, in pressing for the dismissal of Plaintiffs’ claims, argued

as follows:

       To the extent that Plaintiff’s claims are rooted in purported procedural
       deficiencies in the Regulations themselves (as opposed to the denial of his claim
       for disability benefits), as Plaintiff appears to assert in his opposition, Plaintiff
       lacks standing . . . .

(Dkt. No. 18 (“Sec’y Opp’n”) at 4-5). If Plaintiffs disagreed with that characterization—and

truly believed they were advancing traditional benefits-due claims under § 1132(a)(1)(B)—they

could have argued as much in their initial briefing. They chose not to do so, and the Court will

not permit them to belatedly make these arguments now. Kattan, 995 F.2d at 276; Fox, 389 F.3d

at 1296. Thus, the Court finds that Plaintiffs fail to establish the requisite “clear error” or

“manifest injustice” that would entitle them to relief under Rule 59(e) with respect to their claims

against the Secretary (Counts II and III). 4


3
         Plaintiffs make no argument that Moffett alleged such a claim or that he otherwise
possesses Article III standing to pursue his claims against the Secretary. Instead, Plaintiffs
argue, in conclusory fashion, that because Moffett is a member of the class that Ouellette seeks
to represent, “the complaints should remain consolidated.” (Ouellette Compl. at ¶ 59). While
the Court is not convinced that Moffett’s membership in Ouellette’s alleged class, without more,
would warrant the revival of his independently-alleged claims against the Secretary, the Court
need not reach this issue because it finds that Ouellette is not entitled to relief under Rule 59(e)
in the first place.
4
         Nevertheless, even if Plaintiffs had advanced this newly-minted standing theory sooner,
the Court does not find their argument that Ouellette did assert a claim under § 1132(a)(1)(B) to
be particularly persuasive, given that the only allegations Plaintiffs point to are from the
prefatory jurisdictional statement and the prayer for relief of his Complaint. As the Tenth Circuit
Court of Appeals recently held, “the prayer for relief is no part of the cause of action.” Coll v.
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                          IN THE OFFICIAL REPORTERS

   B. Plaintiffs’ Motion for Leave to Amend Complaints Under Rule 15(a)

       Plaintiffs also seek leave to amend their Complaints under Federal Rule of Civil

Procedure 15(a). As the D.C. Circuit has repeatedly held, however, “once a final judgment has

been entered, a court cannot permit an amendment unless the plaintiff ‘first satisfies Rule 59(e)’s

more stringent standard’ for setting aside that judgment.” Ciralsky v. CIA, 355 F.3d 661, 673

(D.C. Cir. 2004) (quoting Firestone, 76 F.3d at 1208). Insofar as Plaintiffs fail to establish any

entitlement to relief under Rule 59(e), their request for leave to amend under Rule 15(a) is

therefore denied as moot.



   C. Plaintiffs’ Motion to Correct Judgment Under Rule 60

       Lastly, Plaintiffs appear to seek relief under Federal Rules of Civil Procedure 60(a) and

60(b)(6), which allow for relief from a judgment or order under limited circumstances. Other

than a bald reference to Rule 60 in the caption of their motion, however, Plaintiffs do not

otherwise discuss the applicable standards under Rule 60, let alone explain how they believe it

would entitle them to relief in this case. As Prudential correctly points out, Rule 60(a) is clearly

inapplicable because it only permits the Court to correct “clerical mistake[s],” FED. R. CIV. P.

60(a), none of which is alleged here. While Rule 60(b)(6), on the other hand, empowers the

Court to relieve a party from judgment for “any other reason that justifies relief,” our Circuit has



First Am. Title Ins. Co., 642 F.3d 876, 901 (10th Cir. 2011); see also Jovanovic v. US-Algeria
Business Council, 561 F. Supp. 2d 103, 108 n.2 (D.D.C. 2008). Jurisdictional and prefatory
statements are similarly construed. See Huggins v. FedEx Ground Package Sys., Inc., 592 F.3d
853, 863 (8th Cir. 2010) (holding that plaintiff’s conclusory reference to a statutory provision in
the complaint’s jurisdictional allegations, without more, “did not give the opposing party fair
notice of such a claim”). Along these lines, Plaintiffs do not and cannot point to any separately-
and explicitly-pled claim for benefits under ERISA’s enforcement provision, § 1132(a)(1)(B),
and the Court would be hard-pressed to read such a claim into Ouellette’s Complaint based
solely on the allegations Plaintiffs now identify.
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                           IN THE OFFICIAL REPORTERS

made clear that this rule only applies to “extraordinary situations . . . and should only sparingly

be used.” Twelve John Does v. Dist. Of Columbia, 841 F.2d 1133, 1140 (D.C. Cir. 1988)

(internal citations omitted); Good Luck Nursing Home, Inc. v. Harris, 636 F.2d 572, 577 (D.C.

Cir. 1980). Insofar as Plaintiffs purport to rely on the same unsuccessful arguments underlying

their Rule 59(e) request for relief, the Court finds no basis for relief under Rule 60(b)(6) either. 5



                                          CONCLUSION

       For the foregoing reasons, the Court concludes that Plaintiffs’ motions (Dkt. Nos. 29, 30)

must be DENIED in all respects. An order accompanies this Memorandum Opinion.

                                                                      Digitally signed by Judge Robert L.
                                                                      Wilkins
Date: November 30, 2012                                               DN: cn=Judge Robert L. Wilkins,
                                                                      o=U.S. District Court, ou=Chambers
                                                                      of Honorable Robert L. Wilkins,
                                                                      email=RW@dc.uscourt.gov, c=US
                                                                      Date: 2012.11.30 16:29:09 -05'00'



                                                       ROBERT L. WILKINS
                                                       United States District Judge




5
        Further, given that Plaintiffs failed to even address Rule 60 in their reply briefing, the
Court treats these arguments as conceded. Newton v. Office of the Architect of the Capitol, 840
F. Supp. 2d 384, 397 (D.D.C. 2012) (“When a party files an opposition addressing only certain
arguments raised in a dispositive motion, a court may treat those arguments that the non-moving
party failed to address as conceded.”); Day v. D.C. Dep’t of Consumer & Regulatory Affairs, 191
F. Supp. 2d 154, 159 (D.D.C. 2002) (“If a party fails to counter an argument that the opposing
party makes in a motion, the court may treat that argument as conceded.”).
                                                  10
