                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


 ELAINE ARABAITZIS,

                        Plaintiff,

                        v.                             Case No. 1:16-cv-01273 (TNM)

 UNUM LIFE INSURANCE COMPANY
 OF AMERICA,

                        Defendant.


                                MEMORANDUM AND ORDER

       Plaintiff Elaine Arabaitzis seeks to recover benefits under the Employee Retirement

Insurance Security Act (“ERISA”), 29 U.S.C. § 1001, et seq. The Court granted summary

judgment for Defendant Unum Life Insurance Company of America, the claims administrator

and insurer for her benefits plan. Before the Court is Ms. Arabaitzis’s motion for reconsideration

of that decision. Ms. Arabaitzis has not shown that she is entitled to relief under Federal Rule of

Civil Procedure 59(e), particularly given the deferential standard of review appropriate here.

The Court will thus deny Ms. Arabaitzis’s motion.


                                                 I.


       Ms. Arabaitzis claims that she suffers from “pain, discomfort, fatigue and other related

impairments caused by cervical and spinal injuries, carpal tunnel syndrome, among other

conditions and impairments.” Compl. ¶ 10, ECF No. 1. As a former employee of a law firm, she

participated in an employee welfare benefits plan through her employer. Id. ¶ 6. Unum was the

claims administrator and insurer for that plan. Id. ¶ 7.
       According to Ms. Arabaitzis, Unum initially approved both her short-term and long-term

benefits but then terminated long-term benefits. Id. ¶ 12. Under ERISA, Ms. Arabaitzis seeks

(1) reinstatement of benefits and payment of “back benefits” with interest; (2) enforcement of the

rights under the plan; (3) clarification of rights to future benefits under the plan; and (4) an award

of attorney’s fees and costs. Id. ¶ 4.

       The Court referred the case to a Magistrate Judge for Report and Recommendation. July

1, 2016 Minute Order. The parties agreed that this case should be decided on cross-motions for

summary judgment. Joint Status Report and Proposed Briefing Schedule, ECF No. 17.

       After extensive briefing, the Magistrate Judge issued her Report and Recommendation.

See Report and Recommendation (“R. & R.”), ECF No. 57. The Magistrate Judge recommended

that Ms. Arabaitzis’s cross-motion be denied and that Unum’s cross-motion be granted. Id. at 2.

The Magistrate Judge applied a deferential standard of review to the denial of benefits because

the benefit plan expressly gave the plan administrator discretionary authority to make benefit

determinations. Id. at 10. And the Magistrate Judge determined that Unum’s decision was

reasonable. Id. at 12.

       Ms. Arabaitzis did not object to the Report and Recommendation within the 14 days

provided by Federal Rule of Civil Procedure 72(b)(2), and the Court adopted the Magistrate

Judge’s Report and Recommendation as its own findings and conclusions. Order Adopting

Report and Recommendation, ECF No. 58. Later that day, Ms. Arabaitzis moved for an

extension of time to file objections to the Magistrate Judge’s Report and Recommendation, but

the Court denied it as moot based on the Court’s prior Order. See September 26, 2018 Minute

Order. Now Ms. Arabaitzis moves for reconsideration. See Pl.’s Mot. for Reconsideration




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(“Mot.”), ECF No. 60. And Unum opposes. Def.’s Obj. to Pl.’s Mot. for Reconsideration

(“Def.’s Obj.”), ECF No. 62.

                                                  II.

       The first issue is whether the Court should evaluate Ms. Arabaitzis’s motion under

Federal Rule of Civil Procedure 59(e) or 60(b). Rule 59(e) states that “[a] motion to alter or

amend a judgment must be filed no later than 28 days after the entry of the judgment.” And Rule

60(b) gives parties more time to file motions for relief from final judgment based on, among

others, “mistake, inadvertence, surprise, or excusable neglect.”

       Unum argues that Ms. Arabaitzis’s motion should be evaluated under Rule 59(e)—not

the “more lenient standard of Rule 60(b).” Def.’s Obj. at 1. Ms. Arabaitzis insists that she filed

a Rule 60(b)(1) motion, and then she correctly argues that the “bar is higher for permitting a Rule

60(b)(1)” than a Rule 59(e) motion. Pl.’s Reply at 8–9, ECF No. 63.

       Courts treat motions for reconsideration filed within Rule 59(e)’s stricter timeframe—

originally 10 days and now amended to 28 days—as Rule 59(e) motions as opposed to Rule

60(b) motions. Owen-Williams v. BB & T Inv. Servs., Inc., 797 F. Supp. 2d 118, 121–22 (D.D.C.

2011) (“As a general matter, courts treat a motion for reconsideration as originating under Rule

59(e) if it is filed within 28 days of the entry of the order at issue and as originating under Rule

60(b) if filed thereafter.”). So on this point, Unum is correct.

       But this is to Ms. Arabaitzis’s benefit. Relief under Rule 60(b) is more restrictive than

under Rule 59(e). See Taitz v. Obama, 754 F. Supp. 2d 57, 58 (D.D.C. 2010). In general, “the

bar stands even higher for a party to prevail on a Rule 60(b) motion” because a party must show

“fraud, mistake, extraordinary circumstances, or other enumerated situations.” Uberoi v. EEOC,

271 F. Supp. 2d 1, 2–3 (D.D.C. 2002). Of course, it would be illogical to hold motions for




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reconsideration filed promptly to a higher standard than stale motions; this would just incentivize

parties to sit on their grievances until after the 28-day cut-off. So contrary to her self-harming

arguments, Ms. Arabaitzis is entitled to consideration under Rule 59(e) and its more forgiving

standard.

       Even Rule 59(e) has limits, though. “Rule 59(e) permits a court to alter or amend a

judgment, but it may not be used to relitigate old matters, or to raise arguments or present

evidence that could have been raised prior to the entry of judgment.” Leidos, Inc. v. Hellenic

Republic, 881 F.3d 213, 217 (D.C. Cir. 2018) (quoting Exxon Shipping v. Baker, 554 U.S. 471,

486 n.5 (2008)). Courts may grant a Rule 59(e) motion only “(1) if there is an ‘intervening

change of controlling law;’ (2) if new evidence becomes available; or (3) if the judgment should

be amended in order to ‘correct a clear error or prevent manifest injustice’” Id. (quoting

Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996)).

       There is no manifest injustice when “a party could have easily avoided the outcome, but

instead elected not to act until after a final order had been entered.” Ciralsky v. CIA, 355 F.3d

661, 665 (D.C. Cir. 2004). And the moving party has the burden of proving that relief under

Rule 59(e) is warranted. Owen-Williams, 797 F. Supp. 2d at 124.


                                                III.


       In her Motion for Reconsideration, Ms. Arabaitzis explains that she failed to file her

objections to the Report and Recommendation before the Court’s Order because she made a

computational error when she calculated the deadline. Mot. at 1. And then Ms. Arabaitzis

attaches her objections to the Magistrate Judge’s Report and Recommendation. See Pl.’s Objs.,

ECF No. 60-1. She argues that the Magistrate Judge failed: (1) “to address many pertinent

medical findings;” (2) “to address the combination of Ms. Arabaitzis’ medical conditions;” (3)


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“to undertake a fair and necessary vocational analysis;” (4) “to address the witness statements of

record;” (5) “to address Unum’s unfair claims review;” (6) “to properly analyze this matter under

the applicable standard of review;” and (7) “to address Unum’s decision not to undertake a

physical examination.” See generally id. In response, Unum urges the Court to deny

reconsideration because Ms. Arabaitzis failed to articulate why she is entitled to such an

extraordinary remedy. Def.’s Obj. at 8.

       As discussed above, the Court will consider Ms. Arabaitzis’s motion under Rule 59(e).

Because she alleges no change of controlling law or new evidence, the question is whether

reconsideration is necessary to correct a clear error or prevent manifest injustice.

       There is no “manifest injustice.” Ms. Arabaitzis “could have easily avoided the

outcome” of the Court entering judgment before considering her objections to the Report and

Recommendation by filing them within the 14 days provided by Federal Rule of Civil Procedure

72(b)(2). See Ciralsky, 355 F.3d at 665. Even though the mathematical error was small, there is

no serious argument that it was unavoidable. “Close” counts with horseshoes and hand grenades,

not filing deadlines.

        Similarly, Ms. Arabaitzis has not identified a “clear error” in need of correction. Her

underlying objections lack merit. First, the Magistrate Judge did apply the correct standard of

review. As she ably explained, because the benefit plan expressly gives the plan administrator

discretionary authority to determine eligibility, a deferential standard of review is appropriate.

Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 111 (1989). The Court will not disturb a

determination if it is reasonable, that is, “the result of a deliberate, principled reasoning process

and if it is supported by substantial evidence.” Loucka v. Lincoln Nat’l Ins. Co., -- F. Supp. 3d

--, 2018 WL 5840662, *4 (D.D.C. Nov. 8, 2018) (citation omitted). And even though Ms.




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Arabaitzis may quibble with how Unum weighed the evidence, its determination is supported by

substantial evidence.

       Much of Ms. Arabaitzis’s complaint is that the Magistrate Judge did not discuss specific

arguments and pieces of evidence. 1 Not so. The Magistrate Judge did address Unum’s alleged

history of “unfair claims review,” see R. & R. at 13 (explaining that Ms. Arabaitzis offers no

evidence to support such a claim) and witness statements of record, see id. (declining to evaluate

evidence because review “is confined to the evidence before the plan administrators”). And Ms.

Arabaitzis criticizes the Magistrate Judge for not discussing Unum’s decision to skip a physical

examination. But as Ms. Arabaitzis admits, “Unum was not required to undertake a physical

examination.” Pl.’s Objs. at 42.

       And even though the Magistrate Judge did not mention specific arguments or evidence,

that hardly proves that she failed to consider it. In fact, the Magistrate Judge explicitly made her

recommendation “[u]pon consideration of Plaintiff’s Cross-Motion for Summary Judgment (ECF

No. 22); Defendant’s Cross-Motion for Summary Judgment (ECF No. 23); the memoranda in

support thereof and in opposition thereto, as well as the supplemental memoranda, notices of

supplemental authority and responses thereto, and the entire record therein.” R. & R. at 2. Ms.

Arabaitzis just asserts that the Magistrate Judge did not consider specific arguments or evidence




1
       In his motion, plaintiff’s counsel, Scott Elkind, is repeatedly disrespectful toward the
Magistrate Judge. See, e.g., Pl.’s Objs. at 7, (“Further, the Report and Recommendation’s
reference (p.3) to the limited number of physician visits is nonsensical.”); id. at 7-8 (“The
Magistrate, for some unknown reason, failed to appreciate that humans are not like lizards.”).
Counsel is warned to refrain from such sanctionable language and tone in the future.


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even though the Magistrate Judge expressly stated that she considered the pleadings and record.

Ms. Arabaitzis has not articulated—much less shown—a clear error here.

       In any event, even “if the medical evidence is close and supports both conclusions, then

judicial deference would support the plan administrator’s decision to deny the plaintiff’s

benefits.” Mobley v. Cont’l Cas. Co., 405 F. Supp. 2d 42, 48 (D.D.C. 2005). Ms. Arabaitzis’s

objections reveal that she does not understand the Court’s deferential review of Unum’s decision.

In arguing that Unum should not have denied her benefits, she points to different medical

evidence, the effect of the combination of her medical conditions, alternative vocational analysis,

and other witness statements. But “[t]he ability to choose among conflicting evidence is,

essentially, a natural outgrowth of the discretion that the plan affords the administrator.” Id.

(emphasis added). And Ms. Arabaitzis has not shown that the challenged decision was

unreasonable based on the evidence and arguments before Unum at the time. See Brown v.

Hartford Life & Accident Ins. Co., 12 F. Supp. 3d 88, 95–96 (D.D.C. 2014).

       In sum, none of Ms. Arabaitzis’s arguments fall within Rule 59(e)’s “limited exception to

the rule that judgments are to remain final.” Leidos, 881 F.3d at 217. Thus, Ms. Arabaitzis has

not proven that she is entitled to reconsideration of the Court’s prior Order.




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                                            ***

      For all these reasons, it is hereby

      ORDERED that Plaintiff’s Motion for Reconsideration is DENIED.

      This is a final, appealable order.


                                                                     2018.12.11
                                                                     14:22:35 -05'00'
Dated: December 11, 2018                          TREVOR N. McFADDEN
                                                  United States District Judge




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