                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                 U N I T E D S T A T E S C O U R T O F A P P E A L S August 31, 2016
                                                               Elisabeth A. Shumaker
                        FOR THE TENTH CIRCUIT                      Clerk of Court
                     _________________________________

JUDY WOOLF,

      Plaintiff - Appellant,

v.                                                    No. 15-4142
                                             D.C. No. 1:14-CV-00168-DAK
SHAELA K. WIGGINGTON,                                  (D. Utah)

      Defendant - Appellee,

and

LIBERTY MUTUAL GROUP, a
foreign corporation; LIBERTY
LIFE ASSURANCE COMPANY OF
BOSTON,

      Defendants.
                     _________________________________

                        ORDER AND JUDGMENT*
                     _________________________________

Before L U C E R O , M A T H E S O N , and B A C H A R A C H , Circuit Judges.
                     _________________________________




*
      Though the parties request oral argument, we conclude that oral
argument would not materially aid our consideration of the appeal. See
Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). Thus, we have decided
the appeal based on the briefs.

     Our order and judgment does not constitute binding precedent
except under the doctrines of law of the case, res judicata, and collateral
estoppel. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
      This appeal grew out of a dispute over the proceeds of a life

insurance policy owned by Mr. Richard Wigginton. When Mr. Wigginton

died, his life insurance policy designated both his mother (Ms. Judy

Woolf) and daughter (Ms. Shaela Wigginton) as co-beneficiaries. Based

on this designation, the daughter claimed a right to half the life insurance

proceeds; the mother claimed that

      !     the designation of co-beneficiaries was legally invalid and

      !     she was entitled to all of the proceeds as the sole beneficiary
            of the policy.

The mother brought suit on these claims, and the district court dismissed

the suit with prejudice for failure to state a valid claim. We affirm. 1

I.    Standard of Review

      In reviewing the dismissal, we engage in de novo review. Gee v.

Pacheco, 627 F.3d 1178, 1183 (10th Cir. 2010). Exercising de novo

review, we consider whether the complaint stated enough facts to make




1
      The daughter characterizes the claims as state-law claims, arguing
that we have supplemental jurisdiction over them under 28 U.S.C.
§ 1367(a). But the mother did not file a mix of federal and state-law
claims; instead, she filed state-law claims that are completely preempted
by § 502 of the Employment Retirement Income Security Act (ERISA)
and converted to claims under this statute. See Metro. Life Ins. Co. v.
Taylor, 481 U.S. 58, 63-67 (1987). This conversion triggers federal
jurisdiction under ERISA. 28 U.S.C. § 1331; 29 U.S.C. § 1132(e).

                                      2
the claims facially plausible. Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007).

II.    The mother challenges Mr. Wigginton’s addition of his
       daughter as a beneficiary.

       Mr. Wigginton’s mother was originally the only beneficiary under

the policy. But Mr. Wigginton’s signature later appeared on a document

adding the daughter as a co-beneficiary. The mother brought this suit,

claiming that the daughter had forged the document or used undue

influence to induce Mr. Wigginton to change the beneficiary. In the

alternative, the mother asserted a claim of equitable assignment.

III.   The district court correctly dismissed the claims of forgery and
       undue influence.

       The district court properly dismissed the claims of forgery and

undue influence.

       ERISA does not expressly address forgery or undue influence in

obtaining designation as a beneficiary. As a result, the forgery and

undue-influence claims are governed by federal common law. See Tinsley

v. Gen. Motors Corp., 227 F.3d 700, 704 (6th Cir. 2000). In determining

what the federal common law is in this area, we are guided by state law,

and the parties limit their analysis to Utah law. Id.; see note 2, below.

       The Utah forgery provision appears in the Utah criminal code,

rendering the act of forgery a felony. See Utah Stat. Ann. § 76-6-501.

                                      3
This provision does not create a private right of action. See Youren v.

Tintic Sch. Dist., 86 P.3d 771, 773 (Utah Ct. App. 2004) (“When a statute

makes certain acts unlawful and provides criminal penalties for such

acts, but does not specifically provide for a right of action, we generally

will not create such a private right of action.”); see also Cline v. Utah,

Div. of Child & Family Servs., 142 P.3d 127, 136 (Utah Ct. App. 2005)

(holding that Utah law does not create a private right of action for

perjury). Because the mother does not identify any other legal sources for

her forgery claim, we affirm the dismissal of this claim.

      We also affirm the dismissal of the mother’s undue-influence claim.

In the amended complaint, the mother alleged “undue influence” without

stating how the daughter had unduly influenced Mr. Wigginton. The

district court characterized this allegation as conclusory, and we agree

with that characterization. Because the allegation was conclusory, the

district court properly dismissed the claim of undue influence. See Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

IV.   The district court correctly dismissed the claim of equitable
      assignment.

      The mother also asked the district court to order equitable

assignment of the life insurance proceeds, arguing that she had

guaranteed repayment of loans to Mr. Wigginton in exchange for status as


                                       4
the sole beneficiary on the life insurance policy. The daughter

successfully urged dismissal of the claim on ground that the mother had

not adequately alleged assignment of the life insurance proceeds. In our

view, the dismissal was proper.

      An order of equitable assignment of the life insurance proceeds

would be proper only if Mr. Wigginton had intended to transfer a present

interest in the life insurance proceeds. See Cook v. Cook, 174 P.2d 434,

436 (Utah 1946) (“Without a transfer of a present interest in the fund or a

parting of control over the fund there can be no equitable assignment.”). 2

In our view, the mother did not adequately allege that Mr. Wigginton had

intended to assign a present interest in his life insurance policy.

      The mother alleged that

      !     she had initially been designated as the sole beneficiary,

      !     Mr. Wigginton had initially intended for the mother to be the
            sole beneficiary, and

      !     the mother had previously guaranteed loans for Mr.
            Wigginton.


2
      “[F]ederal courts . . . have routinely looked to state law to ‘fill the
gaps’ in ERISA law.” Slice v. Sons of Norway, 34 F.3d 630, 633 (8th Cir.
1994). Perhaps for this reason, the parties assume that Utah law governs
the claim of equitable assignment. For the sake of argument, we can
assume that the federal common law would incorporate Utah law on the
equitable-assignment claim. See St. Anthony Hosp. v. U.S. Dep’t of
Health & Human Servs., 309 F.3d 680, 703 (10th Cir. 2002) (applying
Oklahoma law when the parties assumed that Oklahoma law applied).

                                      5
But these allegations do not indicate assignment of a present right. As the

sole beneficiary on the policy, the mother had only “an expectancy,

contingent on the insured’s death.” Culbertson v. Cont’l Assur. Co., 631

P.2d 906, 909-10 (Utah 1981). Mr. Wigginton was entitled to change the

beneficiary designation however he wished. Id. at 910. Thus, the mother

has not adequately pleaded a claim of equitable assignment.

      In her opening appeal brief, the mother alleges that she was

promised all of the life insurance proceeds. This allegation is invalid

because (1) it did not appear in the amended complaint and (2) a promise

to pay would not constitute the transfer of a present interest. Cook v.

Cook, 174 P.2d 434, 436 (Utah 1946).

V.    The district court did not err in making the dismissal with
      prejudice.

      The mother argues in the alternative that even if the amended

complaint was properly dismissed, the dismissal should have been

“without prejudice” rather than “with prejudice.” In our view, the court

did not err. The mother did not request leave to amend the complaint

again or identify additional facts that would have cured the pleading

defects. Thus, the district court had the discretion to dismiss the action

with prejudice. See Calderon v. Kan. Dep’t of Soc. & Rehab. Servs., 181

F.3d 1180, 1187 (10th Cir. 1999) (holding that because a motion for

                                      6
leave to amend a complaint was not filed, the district court did not err in

declining to address the plaintiff’s request in her brief for leave to cure

deficiencies in the complaint).

VI.   Disposition

      We affirm.

                                     Entered for the Court



                                     Robert E. Bacharach
                                     Circuit Judge




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