FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 6, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
ISOKE N. JENKINS-DYER,
Plaintiff - Appellant,
v. No. 15-3261
(D.C. No. 2:13-CV-02489-JAR-DJW)
EXXON MOBIL CORPORATION; (D. Kan.)
DOUGLAS F. GARRISON,
Defendants - Appellees,
and
ANITA L. DRAYTON,
Defendant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, BACHARACH, and McHUGH, Circuit Judges.
_________________________________
This appeal arises out of competing claims to a deceased employee’s savings
plan. Pro se plaintiff Isoke N. Jenkins-Dyer appeals the grant of summary judgment
to defendants Exxon Mobil Corporation and Douglas F. Garrison (collectively
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Exxon) and the denial of her motion for partial summary judgment. We exercise
jurisdiction under 28 U.S.C. § 1291 and affirm.
I. Background
We view the undisputed facts and the inferences to be drawn from them in the
light most favorable to Ms. Jenkins-Dyer, as the party opposing summary judgment.
See Carter v. Pathfinder Energy Servs., Inc., 662 F.3d 1134, 1138 (10th Cir. 2011).
Ms. Jenkins-Dyer is the child of Connington L. Wood, a former Exxon employee
who owned an ExxonMobil Savings Plan (Savings Plan) worth about $94,000.
Mr. Wood died on May 7, 2007. Defendant Anita L. Drayton Wood claimed
ownership of the Savings Plan as Mr. Wood’s surviving spouse. On May 14, 2007,
one week after Mr. Wood’s death, Ms. Drayton Wood recorded a marriage license in
Harris County, Texas, certifying that she and Mr. Wood were married in a ceremony
on March 29, 2007. Ms. Jenkins-Dyer disputes Ms. Drayton Wood’s evidence of the
marriage and claims that she, as Mr. Wood’s child, is entitled to the Savings Plan
proceeds.
The Savings Plan is an “employee pension benefit plan” as defined by the
Employee Retirement Income Security Act of 1974 (ERISA). Defendant Garrison
was the administrator of the Savings Plan. Under the Savings Plan’s terms, because
Mr. Wood had not designated a beneficiary, the proceeds were to be paid upon his
death to Mr. Wood’s spouse, or if none, to his children.
Mr. Wood owned other assets through his employment for which he also did
not designate a beneficiary. To determine the beneficiary of his employee pension
2
and disability plans, Exxon brought an interpleader action in 2008. Also in 2008, Life
Insurance Company of North America filed suit in interpleader to ascertain the
beneficiary of Mr. Wood’s life insurance policy. Although Ms. Drayton Wood was
named as a defendant and served with process in each case, she did not appear or
respond. Both cases were therefore decided by default judgment in favor of Ms.
Jenkins-Dyer.
Exxon transferred ownership of the Savings Plan to Ms. Drayton Wood in July
2007. In 2013, Ms. Jenkins-Dyer filed the underlying action in Kansas State Court
claiming she owned the Savings Plan and that Exxon had breached its fiduciary duty
to her for failing to provide Savings Plan information she had requested. Exxon
removed the action to the Federal District Court of Kansas on September 18, 2013.
Shortly thereafter, the district court dismissed Ms. Drayton Wood—a Texas
resident—for lack of personal jurisdiction. Ms. Jenkins-Dyer has not challenged that
ruling on appeal.
Over two years later, on September 25, 2015, the district court granted
Exxon’s motion for summary judgment, applying the Texas presumption that the
marriage was valid and therefore Exxon had properly awarded ownership of the
Savings Plan to Ms. Drayton Wood. The court relied on sworn Declarations of Ms.
Drayton Wood and William A. Lawson, Pastor Emeritus of the Wheeler Avenue
Baptist Church in Houston, Texas, who performed the marriage ceremony. The court
rejected Ms. Jenkins-Dyer’s claim for breach of fiduciary duty and statutory penalties
and denied her motion for partial summary judgment. In particular, the district court
3
rejected Ms. Jenkins-Dyer’s assertion that the default judgments entered in the
litigation over Mr. Wood’s other employee benefits dictated a ruling that she was the
owner of the Savings Plan.
Ms. Jenkins-Dyer appeals, claiming the district court erred in entering
summary judgment before allowing her to conduct discovery. In addition, she claims
the court improperly decided disputed facts, weighed the evidence, and evaluated
credibility. She also renews her claims that Exxon is estopped from arguing she is not
the owner of the Savings Plan and that Exxon breached its fiduciary duty to her.
II. Legal Standards
“This court reviews summary judgment orders de novo, applying the same
standards as the district court.” Holmes v. Colo. Coal. for Homeless Long Term
Disability Plan, 762 F.3d 1195, 1199 (10th Cir. 2014), cert. denied, 135 S. Ct. 1402
(2015). Summary judgment is available “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a).
We have liberally construed Ms. Jenkins-Dyer’s pro se filings. See Garrett v.
Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). We do not,
however, “take on the responsibility of serving as the litigant’s attorney in
constructing arguments and searching the record.” Id. Moreover, “pro se parties
[must] follow the same rules of procedure that govern other litigants.” Id. (internal
quotation marks omitted).
4
III. Discussion
The parties do not dispute that the dispositive issue is whether Ms. Drayton
Wood and Mr. Wood were married at the time of Mr. Wood’s death. There is also no
dispute that Texas state law applies to determine whether the marriage was valid.
A. Timing of Summary Judgment
Ms. Jenkins-Dyer first contends that the district court erred in granting
summary judgment before she had an opportunity to complete discovery. She relies
primarily on Rules 26(d) and (f) of the Federal Rules of Civil Procedure, which
provide that a party may not seek discovery until a planning conference has taken
place. She claims generally that she did not have the opportunity prior to Exxon’s
motion for summary judgment to discover potential witnesses or review documents.
And she further asserts that in opposition to that motion she sought leave to discover
information about payments made to anyone by Exxon for any employee benefit,
information about her entitlement to damages and penalties, evidence of whether
Exxon received information about Mr. Wood’s deteriorating health, and evidence to
support her claim that Mr. Wood’s signature on the marriage license application
differed from his signature on a 2006 will.
Ms. Jenkins-Dyer contends she was precluded from conducting discovery
during the two years the case was pending because no discovery conference had been
held as required by Rule 26(f). Indeed, she complains that “[t]he Court never
scheduled that conference.” [App. Brief at 21] But it was not the district court’s
responsibility to schedule a discovery conference. The parties—including parties
5
appearing pro se—bear the burden of arranging for a Rule 26(f) conference. See Fed.
R. Civ. P. 26(f)(2) (“The attorneys of record and all unrepresented parties that have
appeared in the case are jointly responsible for arranging the conference . . . .”
(emphasis added)). And she cites no authority stating that the lack of a Rule 26
conference prohibits the court from granting summary judgment. See LTF Real
Estate Co. v. Expert S. Tulsa, LLC (In re Expert S. Tulsa, LLC), 522 B.R. 634, 644
(B.A.P. 10th Cir. 2014) (“Unlike other rules, which explicitly specify how early a
particular motion can be filed, there is no waiting period to file a summary judgment
motion.”). Rather, the rules provide a mechanism to forestall decision on a motion for
summary judgment pending further discovery.
“Under Federal Rule of Civil Procedure 56(d), a district court may permit
additional time for discovery if a nonmovant shows by affidavit or declaration that,
for specified reasons, it cannot present facts essential to justify its opposition.” Birch
ex rel. Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1249 (10th Cir. 2015) (internal
quotation marks omitted). In the affidavit or declaration, the party “must specify
(1) the probable facts not available, (2) why those facts cannot be presented
currently, (3) what steps have been taken to obtain these facts, and (4) how additional
time will enable the party to obtain those facts and rebut the motion for summary
judgment.” Id. (brackets and internal quotation marks omitted). Ms. Jenkins-Dyer did
not satisfy these requirements. She did not file an affidavit or declaration under Rule
56(d), nor did she provide the information itemized above. Instead, she cites to her
opposition to summary judgment wherein she stated that discovery would provide
6
information useful to her case. This is insufficient. To postpone a ruling on a motion
for summary judgment in order to conduct additional discovery, a party must file a
motion under Rule 56(d) supported by “an affidavit that identifies the probable facts
not available and what steps have been taken to obtain these facts,” and must further
“explain how additional time will enable [the party] to rebut the movant’s allegations
of no genuine issue of material fact.” Ellis v. J.R.’s Country Stores, Inc., 779 F.3d
1184, 1206 (10th Cir. 2015) (internal quotation marks omitted). By failing to do so
here, Ms. Jenkins-Dyer “has waived the argument that the grant of summary
judgment should be set aside for lack of sufficient discovery.” Campfield v. State
Farm Mut. Auto. Ins. Co., 532 F.3d 1111, 1124 (10th Cir. 2008); see also Pasternak
v. Lear Petroleum Expl., Inc., 790 F.2d 828, 832–33 (10th Cir. 1986) (“Where a party
opposing summary judgment . . . fails to take advantage of the shelter provided by
[Rule 56(d)] by filing an affidavit, there is no abuse of discretion in granting
summary judgment if it is otherwise appropriate.”). Thus, we find no error in the
grant of summary judgment before Ms. Jenkins-Dyer completed discovery.
B. Correctness of Summary Judgment
Ms. Jenkins-Dyer claims the district court improperly granted summary
judgment based on its impermissible determination of contested facts and assessment
of credibility. Because we agree with the district court that Ms. Jenkins-Dyer failed
to present evidence that could rebut the presumption of a valid marriage, we reject
her arguments.
7
She first argues that the Declarations of Ms. Drayton Wood and Mr. Lawson
are not credible and therefore cannot constitute evidence that the marriage is valid.
Specifically, she complains they do not include an explanation of why Ms. Drayton
Wood did not file the marriage license until after Mr. Wood’s death, why Mr. Wood
stated on the marriage application that he was not delinquent in his child-support
payments, when in fact he was, or why Ms. Drayton Wood had obtained an earlier,
apparently unused, marriage license in 2006. She further criticizes the Declarations
for not identifying and refuting various impediments to marriage, such as whether
either party was married at the time of the ceremony. And she claims that both
Declarations are inadequate because they do not state that Mr. Wood was present at
the marriage ceremony, consented to it, was capable of consenting, or could
consummate the marriage, and they do not address his use of narcotic pain
medications at the time. Finally, Ms. Jenkins-Dyer contends that Mr. Wood’s
signature on the application for the marriage license differed from the signature on a
2006 will that Mr. Lawson witnessed.
None of these arguments are evidence that contradicts the Declarations. To the
extent relevant at all, they go to the weight to be given the Declarations at trial. But
“[c]redibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of a judge, whether
he is ruling on a motion for summary judgment or for a directed verdict.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The Declarations constitute evidence
of Mr. Wood’s marriage to Ms. Drayton Wood and, at the summary judgment stage, a
8
declaration is sufficient as long as it is based on personal knowledge. Bryant v.
Farmers Ins. Exch., 432 F.3d 1114, 1122 (10th Cir. 2005). Because both Declarations
are based on personal knowledge, the district court properly considered them.
Ms. Jenkins-Dyer also contends the Declarations are substantively inadequate
to establish that the marriage was valid. We disagree. Every marriage entered into in
Texas is presumed to be valid unless expressly made void or annulled pursuant to
Texas statutory law. Tex. Fam. Code Ann. § 1.101. “It has long been the established
law of Texas that a ceremonial marriage entered into in accordance with legal forms
will raise the presumption . . . of its legality.” Simpson v. Simpson, 380 S.W.2d 855,
858 (Tex. Civ. App. 1964). But if no marriage ceremony took place or either party
did not consent to the marriage, this presumption may be rebutted. See Mpiliris v.
Hellenic Lines, Ltd., 323 F. Supp. 865, 880–81 (S.D. Tex. 1970).
Accordingly, we first consider whether the undisputed evidence establishes
that a marriage ceremony to which both parties consented took place and then
address whether Ms. Jenkins-Dyer has come forward with any evidence that could
render the marriage void or annulled under Texas statute.
In her Declaration, Ms. Drayton Wood stated under penalty of perjury that she
married Mr. Wood in a ceremony performed by Mr. Lawson on March 29, 2007, and
that she filed the marriage license on May 14, 2007. Mr. Lawson stated under penalty
of perjury that he is a licensed or ordained Christian minister and that he performed a
marriage ceremony between Ms. Drayton Wood and Mr. Wood on March 29, 2007, at
9
Wheeler Avenue Baptist Church in Houston, Texas.1 Thus, the Declarations provide
evidence that Mr. Wood and Ms. Drayton Wood participated in a ceremonial
marriage. To dispute this fact, Ms. Jenkins-Dyer “may not rest on mere allegations in
[her] complaint but must set forth specific facts showing that there is a genuine issue
for trial.” Trevizo v. Adams, 455 F.3d 1155, 1159 (10th Cir. 2006) (internal
quotation marks omitted). She has failed to do so. We therefore conclude that the
undisputed facts establish Mr. Wood and Ms. Drayton Wood participated in a
ceremonial marriage.
Nevertheless, Ms. Jenkins-Dyer contends no presumption of validity arose
because the Declarations do not include statements that Mr. Wood consented to the
marriage. Although the Texas Court of Civil Appeals has held that, “free consent and
agreement of the parties is essential to a valid ceremonial marriage,” it also explained
that a party’s knowing compliance with the requirements for entering into a marriage
“evidences voluntary consent to marriage and by force of law is conclusive that such
party voluntarily consented.” Coulter v. Melady, 489 S.W.2d 156, 158 (Tex. Civ.
App. 1972). Accordingly, in Texas, “[c]onsent to a ceremonial marriage is normally
shown by the parties’ participation in the ceremony.” 5 Elizabeth Williams, Texas
Family Law Service § 39:9 (2007). A fair reading of the Declarations is that
1
Mr. Lawson further declared that the “ceremony of marriage [was] valid
under Texas law.” ECF No. 86-15. Ms. Jenkins-Dyer challenges Mr. Lawson’s
Declaration, claiming that he was not qualified to opine on the legal validity of the
marriage. We need not consider this issue because the Declarations provided
sufficient evidence that Mr. Wood and Ms. Drayton Wood participated in a
ceremonial marriage even without Mr. Lawson’s opinion as to its validity.
10
Mr. Wood and Ms. Drayton Wood participated in the ceremonial marriage performed
by Mr. Lawson. Ms. Jenkins-Dyer has failed to offer any evidence to the contrary.2
We therefore agree with the district court that the undisputed evidence established
that Mr. Wood and Ms. Drayton Wood entered into a consensual ceremonial marriage
in Texas on March 29, 2007.
We next consider whether Ms. Jenkins-Dyer has presented evidence that could
defeat the presumption of validity because the marriage was void or subject to
annulment under Texas law. The distinction between a void marriage and a marriage
that may be annulled, rather than dissolved through divorce, is important for purposes
of our analysis. This is because Texas law provides that “a marriage subject to
annulment may not be challenged in a proceeding instituted after the death of either
party to the marriage.” Tex. Fam. Code Ann. § 6.111. Because Mr. Wood died before
Ms. Jenkins-Dyer instituted this proceeding, she can overcome the presumption of a
valid marriage only by presenting evidence that could support a finding that the
marriage is void. We therefore do not address the grounds in Texas for the annulment
of a marriage,3 including incapacity.4
2
Ms. Jenkins-Dyer alleged that Mr. Wood’s signature on the marriage license
application is different than his signature on a will Mr. Lawson witnessed. But even
assuming that provides some evidence Mr. Wood did not sign the application for a
marriage license, she has offered no evidence that, contrary to the sworn testimony of
Ms. Drayton Wood and Mr. Lawson, he was not present and did not participate in the
marriage ceremony itself.
3
A Texas court may grant an annulment of a marriage to a person: (1) between
sixteen and eighteen years who married without parental consent or without a court
order, Tex. Fam. Code Ann. § 6.102; (2) who was under the influence of alcohol or
drugs at the time of the marriage such that the person lacked capacity to consent to
11
A marriage is void in Texas if it is entered into: (1) between persons of close
consanguinity, Tex. Fam. Code Ann. § 6.201; (2) when one putative spouse is still
married to another person, id. § 6.202; (3) when either or both parties is younger than
sixteen years and no court order has been obtained authorizing the marriage, id.
§ 6.205; and (4) when a party is a current or former stepchild or step parent of the
other party, id. § 6.206. Ms. Jenkins-Dyer has not argued that any of these grounds is
present here.5 She has therefore failed to present evidence that could dispute the
validity of the marriage.
the marriage and did not subsequently voluntarily cohabitate with the other party, id.
§ 6.105; (3) who did not know either party was impotent at the time of the marriage
and did subsequently voluntarily cohabitate with the other party, id. § 6.106; (4) who
was induced by fraud, duress, or force to enter into the marriage and did not
subsequently voluntarily cohabitate with the other party after learning of the mental
disease or defect, id. § 6.107; (5) who lacked the mental capacity to consent to the
marriage or to understand the nature of the marriage ceremony because of mental
disease or defect, at the time of the marriage did not know or have reason to know of
the mental disease or defect, and did not subsequently voluntarily cohabitate with the
other party, id. § 6.108; (6) who did not know that the other party was divorced from
a third-party within thirty days of the marriage ceremony and did not voluntarily
cohabitate with the other party after learning of the divorce, id. § 6.109; and (7) who
married within the seventy-two-hour period immediately after the issuance of the
marriage license if the petition for annulment is filed within thirty days after the
marriage, id. § 6.110.
4
Even where a party to the marriage lacked the mental capacity to consent,
legal action to set aside the marriage may be brought only by the party or his
guardian or next friend. Tex. Fam. Code Ann. § 6.108(a). Ms. Jenkins-Dyer does
not claim she was Mr. Wood’s guardian or next friend and thus was without authority
to challenge the marriage on this ground, even if she had done so before Mr. Wood’s
death.
5
The fact that Ms. Drayton Wood filed the marriage license more than thirty
days after the marriage ceremony does not render the marriage either void or subject
to annulment. Although Texas law requires a marriage license to be recorded within
30 days of the ceremony, Tex. Fam. Code Ann. § 2.206(a), the penalty for failing to
do so is a fine, id. § 2.206(b), and does not provide a statutory ground for setting
12
In summary, the district court did not abuse its discretion by considering the
Declarations. See Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193,
1199 (10th Cir. 2006) (reviewing for abuse of discretion district court’s evidentiary
rulings at the summary-judgment stage). We further conclude on de novo review that
Ms. Jenkins-Dyer’s failure to produce relevant, admissible evidence to refute the
Declarations was fatal to her claim that the marriage is invalid, and the district court
properly held that Ms. Drayton Wood, as Mr. Wood’s surviving spouse, is the owner
of the Savings Plan.
C. Issue Preclusion
Ms. Jenkins-Dyer next asserts that the rulings in the prior litigation to ascertain
the beneficiary of Mr. Wood’s other employee benefits and life insurance policy are
binding here. She claims that since she was determined to be the beneficiary of those
assets, she is also the beneficiary of the Savings Plan.
Issue preclusion applies only “when an issue of fact or law is actually litigated
and determined by a valid and final judgment, and the determination is essential to
the judgment.” Arizona v. California, 530 U.S. 392, 414 (2000) (internal quotation
marks and brackets omitted). Because Ms. Drayton Wood did not appear or respond
in the prior cases, Ms. Jenkins-Dyer prevailed by the entry of default judgments. The
validity of the marriage was not litigated or determined in those cases. Where the
aside the marriage as required by section 1.101. Therefore, even if Ms. Drayton
Wood did not comply with all of the formalities of filing the marriage license, “the
failure to comply with these formalities does not render the marriage invalid unless a
statute declares it so.” In re Estate of Loveless, 64 S.W.3d 564, 576 (Tex. App.
2001).
13
previous case was resolved by entry of a default judgment, “none of the issues is
actually litigated,” so issue preclusion does not apply. Melnor, Inc. v. Corey (In re
Corey), 583 F.3d 1249, 1251 (10th Cir. 2009) (internal quotation marks omitted). The
district court properly denied Ms. Jenkins-Dyer’s motion for partial summary
judgment on this ground.
D. Breach of Fiduciary Duty and Statutory Penalties
Finally, Ms. Jenkins-Dyer argues the district court erred in denying her claim
for breach of fiduciary duty based on Exxon’s allegedly improper handling of her
claim. She also avers that she is entitled to a statutory penalty pursuant to 29 U.S.C.
§ 1132(c)(1)(B), which authorizes a monetary penalty against an ERISA plan
administrator who fails to comply with a request for information “with respect to any
single participant or beneficiary.”6
ERISA authorizes a “participant or beneficiary” to recover benefits due or to
enforce or clarify her rights. Id. § 1132(a)(1)(B). ERISA defines “beneficiary” as “a
person designated by a participant, or by the terms of an employee benefit plan, who
is or may become entitled to a benefit thereunder.” Id. § 1002(8). Ms. Jenkins-Dyer
was not a beneficiary of the Savings Plan, so Exxon, who administered the Savings
Plan according to its terms, did not have and therefore could not breach any fiduciary
duty to her. Moreover, Ms. Jenkins-Dyer has no remedy under 29 U.S.C.
6
In addition to challenging the district court’s ruling on the merits,
Ms. Jenkins-Dyer challenges the magistrate judge’s ruling that her penalty claim was
barred by the statute of limitations. We need not address the limitations issue because
we affirm on the merits.
14
§ 1132(a)(3)(B), which authorizes a court to redress violations of ERISA through
“other appropriate equitable relief.” “Courts have consistently held that this section
does not authorize an award of extracontractual compensatory damages.” Alexander
v. Anheuser-Busch Cos., 990 F.2d 536, 539 (10th Cir. 1993) (collecting cases).
Therefore, we affirm the district court’s grant of summary judgment on this claim.
IV. Conclusion
The judgment of the district court is affirmed.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
15
Jenkins-Dyer v. Exxon Mobil Corp.
Court: Court of Appeals for the Tenth Circuit
Date filed: 2016-06-06
Citations: 651 F. App'x 810
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