Opinion
A03-0019 CV (RRB), Docket No. 43.
January 25, 2005
REPORT AND RECOMMENDATION PLAINTIFFS' CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT
The court has now before it a cross-motion for partial summary judgment by the plaintiffs, Rick Gifford, John Grubich and Tom Healy, as fiduciaries for the benefits of the Alaska Public Utilities Insurance Trust (hereinafter APUIT). (Docket No. 43). Specifically, APUIT moves for partial summary judgment on establishing that: (1) the CALCO defendants were fiduciaries within the definition of 29 U.S.C. § 1002(21)(a) thereby owing fiduciary duties under 29 U.S.C. § 1109(a), and; (2) the CALCO defendants unlawfully handled assets of an ERISA plan in violation of 29 U.S.C. § 1112(b) and are therefore liable under 29 U.S.C. § 1109(a). Said motion is opposed by the so called CALCO defendants: CALCO Inc., D. Bailey "Cal" Calvin Jr., and Diana Stewart. (Docket No. 50). (Reply at docket No. 62). Defendant Caprice Simmons did not respond to the motion. Oral argument was held on January 11, 2005.
These matters at issue were addressed as part of the court's report and recommendation regarding CALCO's motion for summary judgment at docket No. 35. The court hereby incorporates by reference that report and recommendation. ( See docket No. 68). Accordingly, the court concludes that the CALCO defendants were fiduciaries under § 1002(21)(a). ( See report and recommendation at docket No. 68 at pages 7-18). The court, however, also concludes that this alone does not warrant the granting of summary judgment on any claim. Therefore, with one exception, the plaintiffs' motion should be denied. The exception to this is that defendant Caprice Simmons is plainly liable for her conversion of plan funds. Additionally, she did not oppose the instant motion and the court therefore finds that the motion is well taken against her. D.Ak.LR. 7.1(d). Notably, this finding does not in any way reflect on any joint and several liability. Rather, it is restricted to Ms. Simmons for her specific breach of fiduciary duty in embezzling plan assets.
CONCLUSION
For the foregoing reasons it is hereby recommended that the plaintiffs' motion for summary judgment at docket No. 43 be GRANTED in part and DENIED in part. The motion should be granted as to Caprice Simmons' conversion of funds. The motion should be denied in all other respects. Because this motion tracks the motion at docket No. 35 and the report and recommendation at docket No. 68 so closely, and ten page objections and responses were allowed as to docket No. 68, motions to file over-length objections and responses as set forth below will be denied.Pursuant to Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1), a party seeking to object to this proposed finding and recommendation shall file written objections with the Clerk of Court no later than the close of business on February 18, 2005, to object to a magistrate judge's findings of fact may be treated as a procedural default and waiver of the right to contest those findings on appeal.McCall v. Andrus, 628 F.2d 1185, 1187-1189 (9th Cir.), cert. denied, 450 U.S. 996 (1981). The Ninth Circuit concludes that a district court is not required to consider evidence introduced for the first time in a party's objection to a magistrate judge's recommendation United States v. Howell, 231 F.3d 615 (9th Cir. 2000). Objections and responses shall not exceed five (5) pages in length, and shall not merely reargue positions presented in motion papers. Rather, objections and responses shall specifically designate the findings or recommendations objected to, the basis of the objection, and the points and authorities in support. Response(s) to the objections shall be filed on or before the close of business on February 28, 2005. The parties shall otherwise comply with provisions of Federal Rule Of Civil Procedure 72(b).
Reports and recommendations are not appealable orders. Any notice of appeal pursuant to Fed.R.App.P. 4(a)(1) should not be filed until entry of the district court's judgment. See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).