UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

WILLIAM DUN, et al.,

Plaintiffs, v. Civil Action No. 19-40 (JEB) TRANSAMERICA PREMIER LIFE INSURANCE COMPANY, et al.,

Defendants.

MEMORANDUM OPINION

Undeterred by the sound of the final buzzer, Plaintiffs seek to push these proceedings into

a fifth quarter. Just like most sporting contests, however, this one merits no extra time. After

seeing their case fall at summary judgment, Plaintiffs now desire to add a heretofore-unpled

claim under the D.C. Consumer Protection Procedures Act. Yet before the Court may entertain

Plaintiffs’ request to once again amend their Complaint, it must determine whether they have

satisfied the stringent criteria under Federal Rule of Civil Procedure 59(e) for vacating the

Court’s final judgment. They plainly have not. The Court, accordingly, will deny Plaintiffs’

Motion.

I. Background

The background of this case is set forth in this Court’s prior summary-judgment Opinion.

See Dun v. Transamerica Premier Life Insurance Co., No. 19-40,

(D.D.C.

Mar. 5, 2020). While the facts can be briefly encapsulated, the procedural history of the case is

both more involved and more relevant to the instant Motion. In March 2013, Irmadel Dun, a 79-

year-old resident of Montana, tripped on the sidewalk, struck her head, and died within a week

1 from ensuing complications. Id. at *1. Following her death, Dun’s five adult children —

Plaintiffs in this action — sought to claim accidental-death benefits from Defendant

Transamerica Premier Life Insurance Company, whose corporate predecessor sold Dun an

insurance policy in November 2003. Id. at *3. Transamerica denied that claim, explaining that

Dun’s insurance only covered deaths resulting from a motor-vehicle or common-carrier accident,

as opposed to any other sort of fatal mishap. Id. at 1.

On December 11, 2015, Plaintiffs filed suit in Montana state court, challenging

Transamerica’s interpretation of the policy and denial of Dun’s claim. After Defendants

removed the case to federal court in Montana, the parties proceeded to discovery. Id. at *3.

Plaintiffs filed an Amended Complaint on June 30, 2017. See ECF No. 21. Two months later,

they filed a Second Amended Complaint, which retained their counts against Transamerica but

also raised claims, based on information learned in discovery, against new Defendants Financial

Planning Services, Inc. and Aegon Direct Marketing Services, Inc., Trustee and Administrator

respectively of a trust established to maintain insurance policies like Dun’s. Dun,

, at *3. The Second Amended Complaint, which is somewhat jumbled, appears to assert

counts for breach of contract, breach of fiduciary duty, breach of trustee duties, and breach of

administrator duties, while also requesting an administrative accounting. See id.; ECF No. 28

(Second Amended Complaint), ¶¶ 92–125.

On August 29, 2018, Plaintiffs moved to transfer the case to the District of Columbia,

emphasizing those latter Defendants’ substantial connections to our city. See ECF No. 59

(Motion to Transfer) at 4–5, 9–10. The Montana court granted that motion in January 2019, and

this Court assumed jurisdiction. See ECF Nos. 78, 79. Defendants sought permission to file

Amended Answers at an initial status conference on February 14, 2019. The Court granted that

2 request, and the parties commenced a second round of discovery. See ECF No. 85 (Scheduling

Order) at 1. At no point did Plaintiffs seek leave to amend their Second Amended Complaint or

raise any count under the CPPA.

Following summary-judgment briefing, the Court granted Defendants’ motion on all

counts on March 5, 2020. Dun,

, at *8. Notwithstanding Plaintiffs’ position

that Defendants’ marketing materials and Insurance Certificate contained convoluted and

contradictory language, the Court ruled that under the “plain terms of the contract, a reasonable

person would have to conclude that the coverage is limited to motor-vehicle and common-carrier

deaths.” Id. at *7. The Court also explained that Defendants’ marketing materials were neither

“deceptive” nor “introduc[ed] ambiguity,” but rather “served to further clarify the terms of the

policy.” Id. at *8. Finally, the Court made “quick work” of Plaintiffs’ assertion, offered for the

first time in their summary-judgment opposition, that Defendants had also violated the CPPA.

Id. at *9. As the Court explained, that claim was “not properly pleaded (or pleaded at all),” and

binding circuit precedent precluded Plaintiffs from amending their Complaint in summary-

judgment briefing. Id.

Two weeks after entry of judgment, Plaintiffs sought leave to file a Third Amended

Complaint, which explicitly alleged that Defendants’ marketing materials contained deceptive

and misleading representations in violation of the CPPA. See ECF No. 113 (Motion to Amend).

The Court denied that motion without prejudice, observing that Plaintiffs must first obtain

vacatur of the judgment before seeking to amend their Complaint. See Minute Order (3-18-

2020). Plaintiffs then promptly filed Motions for Reconsideration and Vacatur. See ECF Nos.

115, 116. The Court denied the former and denied the latter without prejudice, in part because

Plaintiffs never attached their proposed amended complaint or explained why amendment should

3 be permitted at this stage. See ECF No. 120 (Order). The Court nevertheless afforded Plaintiffs

another opportunity to file a Motion to Vacate Judgment and Amend the Complaint. It warned,

however, that any such motion “shall not rehash again the merits of the Court’s summary-

judgment ruling.” Id. at 3. Plaintiffs now move once more to vacate the judgment and for leave

to file a Third Amended Complaint. See ECF No. 121 (Pl. Mot.).

II. Legal Standard

Ordinarily, leave to amend under Rule 15(a) “shall be freely given when justice so

requires.” Ciralsky v. CIA,

(D.C. Cir. 2004). “The entry of final judgment,

however, is a game changer.” Trudel v. SunTrust Bank,

, 25 (D.D.C. 2018). At

that point, “a court cannot permit an amendment unless the plaintiff ‘first satisf[ies] Rule 59(e)’s

more stringent standard’ for setting aside that judgment.” Ciralsky,

(quoting

Firestone v. Firestone,

(D.C. Cir. 1996)); see also DeGeorge v. United

States,

, 40–41 (D.D.C. 2007). In other words, “[l]eave to amend a complaint

after judgment may be granted only after the Court vacates that judgment” under Rule 59(e).

Foster v. Sedgwick Claims Mgmt. Servs., Inc.,

(D.D.C. 2015) (emphasis

in original). If the plaintiff fails to prevail on her motion to vacate the judgment, that is the end

of the matter, and the Court must deny the motion to amend under Rule 15(a) as moot. Ciralsky,

; Mohammadi v. Islamic Republic of Iran,

, 78–79 (D.D.C.

2013).

Rule 59(e) permits the filing of a motion to alter or amend a judgment when such motion

is filed within 28 days after the judgment’s entry. The Court must apply a “stringent” standard

when evaluating Rule 59(e) motions. Ciralsky,

. “A Rule 59(e) motion is

discretionary and need not be granted unless the district court finds that there is an intervening

4 change of controlling law, the availability of new evidence, or the need to correct a clear error or

prevent manifest injustice.” Firestone,

(internal quotation marks and citation

omitted); see also 11 C. Wright & A. Miller, Fed. Prac. & Proc. Civ. § 2810.1 at 158–62 (3d ed.

2012) (stating that “four basic grounds” for Rule 59(e) motion are “manifest errors of law or

fact,” “newly discovered or previously unavailable evidence,” “prevent[ion of] manifest

injustice,” and “intervening change in controlling law”). Rule 59(e), moreover, “is not a vehicle

to present a new legal theory that was available prior to judgment,” Patton Boggs LLP v.

Chevron Corp.,

(D.C. Cir. 2012), or “to relitigate old matters.” Exxon

Shipping Co. v. Baker,

, 485 n.5 (2008) (citation omitted). “The strictness with

which [Rule 59(e)] motions are viewed is justified by the need to protect both the integrity of the

adversarial process in which parties are expected to bring all arguments before the court, and the

ability of the parties and others to rely on the finality of judgments.” Mohammadi,

(quoting CFTC v. McGraw-Hill Cos.,

(D.D.C. 2005)).

III. Analysis

The Court will first examine Plaintiffs’ Motion to Vacate before considering their Motion

to Amend.

A. Motion to Vacate Judgment

At the outset, the Court notes that Plaintiffs have not sought to vacate this Court’s

judgment in light of an “intervening change of controlling law” or the “availability of new

evidence.” Ciralsky,

. Instead, they assert solely that denying vacatur would

result in “manifest injustice” and “manifest error.” Pl. Mot. at 5; ECF No. 125 (Pl. Reply) at 2–

4. This argument faces a decidedly uphill climb. “Manifest injustice” under Rule 59(e) is an

“exceptionally narrow concept,” which “‘does not exist where . . . a party could have easily

5 avoided the outcome, but instead elected not to act until after a final order had been entered.’”

Slate v. Am. Broad. Cos., Inc.,

(D.D.C. 2013) (quoting Ciralsky,

). “Clear error,” moreover, must likewise conform to a “very exacting standard.”

Mohammadi,

(quoting Bond v. U.S. Dep’t of Justice,

(D.D.C. 2012)); see also

(explaining that final judgment must be “dead wrong” to constitute

clear error) (quoting Lardner v. FBI,

(D.D.C. 2012)). The Court finds

that Plaintiffs do not come close to satisfying these criteria.

Plaintiffs initially contend that they need not even seek leave to amend their Complaint

because their desired CPPA claim — much to the surprise of the Court and Defendants — was in

fact present all along. In other words, Plaintiffs maintain that because they “have alleged the

facts which give rise to their claim under the CPPA since the very first day of this litigation,”

disallowing that claim “would be a manifest error and would cause manifest injustice.” Pl. Mot.

at 5; see also id. at 7; Pl. Reply at 2, 6–7.

This argument, however, quickly encounters a fundamental roadblock: as previously

noted, the Court has already ruled that Plaintiffs’ “never-before-mentioned” CPPA claim was

“not properly pleaded (or pleaded at all)” and therefore does “not stand in the way of summary

judgment” in favor of Defendants. Dun,

, at *9. The Court reached that

conclusion notwithstanding Plaintiffs’ representations in their summary-judgment briefing that

the claim was somehow “adequately alleged” because their Complaint “informs the Defendants

that they have made the sort of misrepresentations” prohibited by the CPPA. See ECF No. 110

(Pl. MSJ Reply) at 24–25. That reality largely forecloses Plaintiffs’ argument here, as it is well

established that Rule 59(e) “may not be used to relitigate old matters.” Exxon Shipping Co.,

n.5 (quoting 11 C. Wright & A. Miller, Fed. Prac. & Proc. § 2810.1, pp. 127–28 (2d

6 ed. 1995)); see also Slate,

(explaining that “litigants may not use Rule

59(e) either to repeat unsuccessful arguments or to assert new but previously available

arguments”). The Court will nonetheless briefly explain further why Plaintiffs’ Second

Amended Complaint failed to adequately plead the CPPA claim.

In order to state a claim upon which relief may be granted, a complaint must “give the

defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl.

Corp. v. Twombly,

(2007) (citation omitted). Plaintiffs’ Second Amended

Complaint — the operative complaint here — does absolutely nothing to put Defendants on

notice of any claim under the CPPA, not least because the pleading contains no mention of the

CPPA at all. Indeed, not only does that Complaint omit any CPPA count in its lengthy list of

common-law causes of action, see SAC, ¶¶ 92–135, but the pleading also contains no discussion

whatsoever of the elements required to state a claim under the CPPA or any hint as to which of

the Act’s myriad provisions Defendants allegedly violated. A plaintiff cannot suddenly

“discover” in summary-judgment briefing that a collection of facts pled in a complaint impliedly

invokes a previously unmentioned statutory claim — especially when, as here, that Complaint

explicitly states numerous other substantive counts. By never even gesturing at a count under the

CPPA, while expressly pleading multiple claims sounding in contract and tort, the Second

Amended Complaint did not give Defendants “fair notice of the claim[s] being asserted” so as to

permit them “the opportunity to file a responsive answer” and “prepare an adequate defense.”

Jiggetts v. District of Columbia,

(D.D.C. 2017) (quoting Brown v. Califano,

(D.D.C. 1977)); see also Poblete v. Indymac Bank,

(D.D.C. 2009) (“The court or opposing party must be able to understand whether a valid claim is

alleged and if so what it is.”) (internal quotation marks and citation omitted).

7 Arguing to the contrary, Plaintiffs rely on the Supreme Court’s per curiam decision in

Johnson v. City of Shelby,

(2014). There, the Court summarily reversed a lower

court that had dismissed the plaintiffs’ case against a municipality for failing to expressly cite

in their complaint, even though the complaint clearly recounted the events that

allegedly “entitled them to damages from the city” for violations of the Fourteenth Amendment.

at 10–12. But in Johnson, the defendant municipality no doubt had fair notice that section

1983 served as the plaintiffs’ cause of action, as it is well established that such provision

provides the statutory hook by which litigants may obtain monetary relief against municipalities

acting in violation of constitutional law. See Monell v. Dep’t of Soc. Servs.,

(1978). Indeed, the municipality even explained in its Answer that it “cannot be held liable for

damages pursuant to

.” See Petition for Writ of Certiorari at 10, Johnson,

(No. 13-1318) (emphasis added) (citation omitted).

Here, by contrast, Defendants had no notice that Plaintiffs sought to raise — in addition

to their existing breach-of-contract, fiduciary-duty, and tort counts — yet another claim of

substantive liability under the CPPA until Plaintiffs first invoked the statute in their brief in

opposition to summary judgment. Far from imposing a “mere pleading formality,” Johnson, 574

U.S. at 11 (citation omitted), requiring Plaintiffs more clearly to bring the CPPA count to

Defendants’ attention was particularly necessary where Plaintiffs pleaded various additional,

independent claims for relief. See Taylor v. Mills,

, 137–38 (D.D.C. 2012)

(rejecting hostile-work-environment claim as improperly pleaded when first raised in plaintiff’s

opposition to summary-judgment motion, where complaint’s sole claim was for retaliation).

Plaintiffs nevertheless argue that various excerpts from their Second Amended Complaint

effectively “demonstrate a violation of the CPPA.” Pl. Mot. at 7 (citing SAC, ¶¶ 9, 10, 58, 59).

8 And they further insist that “[u]nfair and deceptive trade practices ha[ve] been the gravamen of

the Plaintiffs’ case from the very start.” Pl. Reply at 2. Yet allegations of misleading or

deceptive statements in the insurance policy and accompanying marketing materials, see

just

as easily support the breach-of-contract, fiduciary-duty, and tort claims Plaintiffs did plainly

plead. Neither the cited paragraphs nor the Complaint as a whole demonstrates any intention on

their part to state a separate claim under the CPPA, nor do they “give [Defendants] fair notice” of

such a claim. Twombly,

(citation omitted); see also Jordan v. Dist. of Columbia,

(D.D.C. 2016) (rejecting constitutional claim raised in summary-

judgment brief as improperly pled where invocation of relevant constitutional right “is nowhere

to be found in Plaintiffs’ complaint,” even when complaint arguably alleged factual basis for

additional claim). At bottom, even when the Second Amended Complaint is liberally construed,

Plaintiffs have not shown that the Court committed any error, let alone a “clear error” sufficient

to warrant relief under Rule 59(e), in rejecting their CPPA count as not properly pled. Firestone,

(citation omitted).

Perhaps recognizing the infirmity of their position, Plaintiffs next argue that even if the

Second Amended Complaint contained no CPPA count, they “explicitly sought leave to amend”

in a footnote lodged within the penultimate page of their summary-judgment reply. See Pl.

Reply at 3 & n.1 (citing Pl. MSJ Reply at 24 n.11). As the D.C. Circuit has often reiterated,

however, “a request for leave to amend must be submitted in the form of a written motion.”

Trudel v. SunTrust Bank,

(D.C. Cir. 2019) (quoting Benoit v. U.S. Dep’t of

Agric.,

(D.C. Cir. 2010)). There is no dispute that Plaintiffs never submitted

such a motion prior to judgment in this case. This Court, moreover, has already explained that “a

plaintiff cannot amend his Complaint in an opposition to . . . summary judgment.” Dun, 2020

, at *9 (quoting Jo v. Dist. of Columbia,

(D.D.C. 2008)). No

“manifest injustice” obtains from this Court’s refusing to abide Plaintiffs’ attempted

circumvention of proper procedures.

Finally, Plaintiffs argue that even if their prior Complaint did not contain a CPPA claim

from the outset, and even if they neglected to seek proper leave to amend, refusing to vacate the

judgment would be manifestly unjust all the same. That is so, Plaintiffs contend, because the

“unusual circumstances” of this case “deprived [them] of the opportunity to amend that they

almost always would have had in other circumstances.” Pl. Reply at 3. But there is nothing

“unusual” in these proceedings that prevented Plaintiffs from timely seeking leave to amend their

Complaint with their desired CPPA count prior to judgment. Indeed, they offer no good reason

for their failure to do so.

In June 2017, Plaintiffs filed their First Amended Complaint alleging that Dun purchased

her insurance from a trust governed by D.C. law. See ECF No. 21, ¶¶ 1, 28e. No CPPA count

appeared there or in a Second Amended Complaint filed two months later. Over a year later, at

the request of Plaintiffs — who themselves emphasized the relevance of D.C. law to this dispute,

see Mot. to Transfer at 4–5, 9–10 — the Montana court transferred the action to this Court.

Shortly after this Court assumed jurisdiction, Defendants obtained leave to file an Amended

Answer in February 2019, but Plaintiffs stood pat. At no point in the ensuing year did they seek

to add a CPPA claim, even after this Court scheduled summary-judgment briefing on July 24,

2019.

That inaction is problematic for Plaintiffs. Recall that there is no “manifest injustice”

under Rule 59(e) where a party could have “easily avoided” a given outcome but instead “elected

not to act until after a final order had been entered.” Ciralsky,

; see also Exxon

10 Shipping Co.,

n.5 (explaining that Rule 59(e) may not be used to “raise

arguments or present evidence that could have been raised prior to the entry of judgment”)

(citation omitted). Here, Plaintiffs make no argument that they lacked the facts necessary to

plead a CPPA claim prior to judgment. On the contrary, they concede that “from the very first

day of this litigation,” the case has revolved around allegedly deceptive and “misleading

communications to customers.” Pl. Mot. at 12; see also Foster,

(denying

Rule 59(e) motion when there was “no reason why either of Plaintiff’s current positions was

unavailable to her before judgment”); Odhiambo v. Republic of Kenya,

(D.D.C. 2013) (denying Rule 59(e) motion because “it is not manifestly unjust to deny [the

plaintiff] the chance to re-open the case to assert new claims that he could have brought at the

outset”).

Plaintiffs ultimately have no one but themselves to blame for their consistent failure to

seek leave to add a CPPA claim and their present straits that such claim has not been “heard on

the merits.” Pl. Reply at 2. Indeed, they seem to admit as much, conceding that “[i]n hind-sight,

[they] might have been better served to file a separate motion to amend the complaint while the

motion for summary judgment was pending.” ECF No. 113 (Motion to Amend) at 4. In a brief

attempt to absolve themselves of fault, Plaintiffs point to Defendants’ efforts to dismiss the

action in Montana for lack of jurisdiction and in this Court for lack of standing as evidence that

Defendants “have entirely avoided litigating the merits of the case.” Pl. Reply at 2. But

Defendants’ motion for summary judgment rested nearly in whole on the merits Plaintiffs accuse

them of avoiding — i.e., the plain meaning of the Insurance Certificate and whether the

accompanying marketing materials were deceptive. See ECF No. 97-1 at 12–24. At any rate, it

is left unsaid how Defendants’ litigating choices prevented Plaintiffs from seeking leave to

11 amend their Complaint to include a claim based on allegations that Plaintiffs themselves

acknowledge have existed “since the very start of this case.” Pl. Reply at 2.

Plaintiffs seem to suggest that they will experience a “grave injustice” if their CPPA

claim is judged under the “higher threshold of Rule 59(e),” as opposed to Rule 15(a)’s more

generous standard. Id. at 4. But “self-inflicted prejudice does not qualify as manifest injustice”

under Rule 59(e). Mohammadi, 947 F. Supp. 2d at 81. After all, the only alleged injustice here

is the unremarkable consequence of Plaintiffs’ neglecting to seek leave to amend their Complaint

when — by their own admission — they plainly could have. Because Rule 59(e) does not

provide “a chance for [Plaintiffs] to correct poor strategic choices,” their arguments do not

warrant vacatur of the final judgment. See SEC v. Bilzerian,

(D.D.C.

2010).

B. Motion for Leave to Amend

As previously noted, “Leave to amend a complaint after judgment may be granted only

after the Court vacates that judgment.” Foster,

. Because Plaintiffs do not

prevail in their effort to vacate the judgment, their Motion to Amend is denied as moot.

Mohammadi v. Islamic Republic of Iran,

(D.C. Cir. 2015) (“Since the court

declined to set aside the judgment under Rule 59(e), it properly concluded that [plaintiffs’]

motion to amend under Rule 15(a) was moot.”) (alteration in original) (quoting Ciralsky,

); Foster,

(“Because [the plaintiff] has advanced no meritorious

ground for vacating the judgment, the Court cannot grant her request to amend.”); ACE Am. Ins.

Co. v. Fed. Crop Ins. Corp., No. 14-1992,

, at *3 (D.D.C. June 7, 2017)

(similar); People for Ethical Treatment of Animals, Inc. v. U.S. Dep’t of Agric.,

(D.D.C. 2014) (similar); Western Wood Preservers Inst. v. McHugh,

, 147

12 (D.D.C. 2013) (similar).

In any event, Plaintiffs fail even to satisfy the Rule 15(a) standard for amending their

Complaint. In deciding whether to grant such leave, a court may consider, inter alia, “undue

delay,” “undue prejudice to the opposing party by virtue of allowance of the amendment,” or

“futility of amendment.” Foman v. Davis,

(1962). It is clear that “undue

delay is a sufficient reason for denying leave to amend.” Atchinson v. Dist. of Columbia,

(D.C. Cir. 1996). As previously explained, see supra at 10–12, Plaintiffs offer no

compelling reason for their protracted, more-than-two-year delay in requesting leave to amend,

and they certainly cannot attribute it to Defendants. See Heller v. Dist. of Columbia,

(D.D.C. 2013) (denying motion for leave to amend where plaintiffs offered “no justification

for their tardiness”). In addition, allowing Plaintiffs to begin proceedings anew — that is, “to go

back to the drawing board” after discovery and a summary-judgment ruling — “would be highly

prejudicial to [Defendants].” Trudel,

(quoting Trudel, 325 F.R.D. at 28). That

is especially so where full merits discovery would need to take place, as even Plaintiffs concede.

See Pl. Reply at 10 (“the Parties have done only preliminary discovery”); see also Bode &

Grenier, LLP v. Knight,

, 860–61 (D.C. Cir. 2015) (affirming denial of leave to

amend after summary-judgment ruling where movant offered no justification for delay and new

discovery would be required); Williamsburg Wax Museum, Inc. v. Historic Figures, Inc.,

(D.C. Cir. 1987) (similar).

Finally, although the Court “need not consider” the futility of amendment, given the

“potential for prejudice” and “substantial delay,” Atchinson,

, it bears noting that

the merits of Plaintiffs’ proposed claim are uncertain at best. While the CPPA generally

prohibits unfair or deceptive trade practices and assertions of material facts misleading to a

13 reasonable consumer, see

, this Court has already explained that

Defendants’ Insurance Certificate and marketing materials were unambiguous and non-

misleading. Dun,

, at *7–8; see also id. at *8 (“Far from being ‘deceptive’ or

introducing ambiguity, as Plaintiffs would suggest, the marketing materials served to further

clarify the terms of the policy.”); Whiting v. AARP,

(D.C. Cir. 2011)

(affirming rejection of breach-of-contract claim and subsequent dismissal of CPPA claim

because “no reasonable person” could be misled or deceived by statements in an insurance

certificate and promotional materials). And it is by no means a foregone conclusion that the

CPPA even applies in this case. While the Trust is no doubt governed by D.C. law, Plaintiffs do

not dispute that the relevant marketing materials were created and distributed by an Iowa-

domiciled insurer to a Montana resident. See Shaw v. Marriott Int’l, Inc.,

(D.C. Cir. 2010) (performing choice-of-law analysis and concluding that CPPA did not govern

dispute between two non-D.C. domiciliaries, even though District had “some interest” in

dispute).

IV. Conclusion

For the foregoing reasons, the Court will deny Plaintiffs’ Motion to Vacate the Judgment

and for Leave to File a Third Amended Complaint. A separate Order so stating will issue this

day.

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: July 15, 2020

14