United States District Court, N.D. Ohio, Eastern Division
OPINION AND ORDER
CHRISTOPHER A. BOYKO, UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff Owner's
Management Company's (“Plaintiff”) Motion for
Reconsideration of Order and Opinion Dismissing Counts III
and V of Complaint Against Defendant Arthur J. Gallagher
& Co., or, in the alternative, Motion for Leave to Amend
Complaint (ECF DKT # 27). For the following reasons, the
Court denies Plaintiff's Motion for Reconsideration and
grants Plaintiff's Motion for Leave to Amend Complaint.
filed the instant Complaint on April 25, 2017, against
HealthSmart Benefit Solutions, Inc. (“HBS”) and
Arthur J. Gallagher & Co. (“Gallagher”) for
Breach of Contract, Breach of Fiduciary Duties, Negligent
Misrepresentation and for Accounting. Plaintiff is an
independent senior living and multi-family residences
property management company. Gallagher is an insurance
brokerage and risk management company.
had a long-standing relationship with Gallagher and relied
upon Gallagher's expertise and advice for its employee
healthcare benefit needs. Compl. ¶¶ 14-15.
Plaintiff placed “special trust and confidence”
in Gallagher to select and procure an employee healthcare
plan that was in Plaintiff's best interests. Compl.
¶¶ 16-17. Gallagher recommended a self-funded
employee healthcare benefit plan (the “Plan”)
from November 1, 2014 through October 31, 2015 that allegedly
minimized Plaintiff's cost and potential exposure. Compl.
¶¶ 20-22. Gallagher also recommended that Plaintiff
utilize HBS as Claims Administrator. Plaintiff selected the
Plan based upon Gallagher's advice.
November 1, 2014, Plaintiff, as Plan Sponsor, Administrator
and Fiduciary, entered into the HealthSmart Benefit
Solutions, Inc. Administrative Services Agreement with HBS.
Compl. Ex. 2. Gallagher was not a party to that Agreement.
According to the Complaint, however, Gallagher and HBS
modified how the assets of the Plan would be managed and how
the costs, including the amount of approved benefit claims,
were to be paid, all without Plaintiff's knowledge or
consent. Allegedly, Gallagher did not correctly or adequately
advise Plaintiff that the Plan posed a much higher risk than
the other options; that the cost of the Plan would be much
higher than Gallagher represented; that Plaintiff would be
required to satisfy various reporting requirements and
obligations for self-funded plans under the Affordable Care
Act and ERISA and that Plaintiff would need to create proper
reserves to guard against cash flow fluctuations. Compl.
¶¶ 26, 28, 30-31. Ultimately, as a result of the
alleged failures, mismanagement and misconduct of Gallagher
and HBS, the Plan was underfunded and Plaintiff “caused
the Plan to be terminated.” Compl. ¶ 52.
26, 2017, Gallagher moved for dismissal of Count I (Breach of
Contract); Count III (Breach of Common Law Fiduciary Duties);
Count V (Breach of ERISA Fiduciary Duties); Count VII
(Negligent Misrepresentations or Concealments) and Count IX
(Action on Accounting). On December 1, 2017, this Court
dismissed Counts III and V against Gallagher.
January 10, 2018, Plaintiff moved for reconsideration of the
Court's Opinion and Order dismissing Counts III and V
against Gallagher or, in the alternative, for leave to amend
its Complaint. Plaintiff contends that the Court “only
focused on the relationship up to the time the Plan was
established” and did not give “due
consideration... to its allegations that fiduciary duties on
the part of [Gallagher] were created and continued
after the Plan was put in place.”
(Emphasis original). ECF DKT # 27, at 3. Furthermore,
Plaintiff urges the Court to consider Pfahler v. National
Latex Products Company, 517 F.3d 816 (6th Cir. 2007),
which they contend allows them to recover on behalf of a
terminated plan. Id. at 7.
courts possess the authority and discretion to reconsider and
modify interlocutory judgments any time before final
judgment.” Rodriguez v. Tenn. Laborers Health &
Welfare Fund, 89 Fed.Appx. 949, 952 (6th Cir. 2004).
See also Moses H. Cone Mem'l Hosp. v.
Mercury Constr. Corp., 460 U.S. 1, 12 (1983)
(“every order short of a final decree is subject to
reopening at the discretion of the district judge”).
“District courts have authority both under common law
and Rule 54(b) to reconsider interlocutory orders and to
reopen any part of a case before entry of final
judgment.” Rodriguez, 89 Fed.Appx. at 959.
However, reconsideration is disfavored:
Although motions to reconsider are not ill-founded
step-children of the federal court's procedural arsenal,
they are extraordinary in nature and, because they run
contrary to notions of finality and repose, should be
discouraged. To be sure, a court can always take a second
look at a prior decision; but it need not and should not do
so in the vast majority of instances, especially where such
motions merely restyle or re-hash the initial issues.
McConocha v. Blue Cross and Blue Shield Mutual of
Ohio, 930 F.Supp. 1182, 1184 (N.D.Ohio 1996) (internal
citations and quotations omitted).
for reconsideration “serve a limited purpose and should
be granted for one of three reasons: (1) because of an
intervening change in controlling law; (2) because evidence
not previously available has become available; or (3) because
it is necessary to correct a clear error of law or preventing
manifest injustice.” Boler Co. v. Watson &
Chalin Mfg. Inc., 372 F.Supp.2d 1013, 1024-25 (N.D.Ohio
2004), quoting General Truck Drivers, Local No. 957 ...