Opinion
No. 09-3813.
Submitted: July 5, 2010.
Filed: July 16, 2010.
Appeal from the United States District Court for the District of North Dakota.
Douglas W. Gigler, Nilles Law Firm, Fargo, ND, for Plaintiff.
William James Brudvik, Brudvik Law Offices, Mayville, ND, Sara K. Sorenson, Ohnstad Twichell, West Fargo, ND, for Defendant-Appellee.
Dana L. Stuart, New England, ND, pro se.
Before LOKEN, BYE, and SHEPHERD, Circuit Judges.
[UNPUBLISHED]
Vanguard Fiduciary Trust Company (VFTC) as trustee for the Burlington Northern Santa Fe Investment and Retirement Plan filed this interpleader action to determine the rights of Dana Stuart and Elisha Kabanuk, who each claimed to be the sole beneficiary of deceased employee Lou Ann Thompson's 401(k) account in the Plan. See 28 U.S.C. §§ 1335 and 1397; 29 U.S.C. § 1132. Stuart and Kabanuk an swered, and Stuart filed a cross-claim or against Kabanuk, seeking rescission of hompson's change-of-beneficiary document based on alleged lack of capacity and undue influence. Stuart appeals pro se the in district court's judgment entered in accordance with a jury verdict in favor of Is, Kabanuk.
The HONORABLE RALPH R. ERICKSON, United States District Judge for the District of North Dakota.
On appeal, Stuart argues that she is the proper beneficiary because the evidence at trial established Thompson's lack of capacity when she signed the change-of-beneficiary document and undue influence by Kabanuk and her mother, Thompson's sister. However, Stuart did not file a motion for new trial or judgment as a matter of law, nor does the record on appeal include a trial transcript. Accordingly, Stuart has failed to establish any preserved error or plain error in the jury's verdict. See Muhammad v. McCarrell, 536 F.3d 934, 938 (8th Cir. 2008); Meroney v. Delta Int'l Mack Corp., 18 F.3d 1436, 1437 (8th Cir. 1994). Accordingly, we affirm. See 8th Cir. R. 47B.