IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-20860
Summary Calendar
SHIRLEY SMITH,
Plaintiff-Appellant,
versus
PERRY HOMES, A Joint Venture,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CV-3637
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March 18, 2002
Before DeMOSS, PARKER and DENNIS, Circuit Judges.
PER CURIAM:*
Shirley Smith appeals the district court’s denial of her
motion for reconsideration and/or new trial. This case involves
a claim for benefits under a life insurance contract issued by
Reliance Standard Life Insurance Company (“Reliance”). In 1994,
as part of a benefits plan for employees of Perry Homes, A Joint
Venture (“Perry Homes”), Reliance issued a term life insurance
policy to Donald Wilkerson. Smith, the wife of Wilkerson, was
named as the primary beneficiary of the insurance policy.
Following Wilkerson’s death in 1997, Smith submitted a claim for
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 01-20860
-2-
life insurance benefits as the beneficiary of the policy. For
reasons not germane to this appeal, Smith’s claim was denied.
Smith filed suit in Texas state court against Perry Homes
and Reliance alleging numerous state law claims arising from the
denial of her claim for benefits. Perry Homes and Reliance
removed the matter to federal court and then moved for dismissal,
arguing that ERISA preempted all of Smith’s state law claims.
Prior to ruling on the defendants’ motion for summary judgment,
the district court gave Smith an opportunity to amend her
complaint and assert an ERISA claim. Smith did not do so.
Thereafter, the district court held that ERISA applied to the
case, and that Smith’s claims were preempted. The district court
then entered a final judgment dismissing the case. (Smith I)
Approximately one year after the dismissal in Smith I, Smith
filed the instant action (Smith II) against Perry Homes, again in
Texas state court. Perry Homes removed Smith II to federal court
and moved for summary judgment on the ground that Smith’s claims
were barred by res judicata. Smith asked the district court to
allow her to file an amended complaint alleging only ERISA
claims. The district court granted Perry Homes’ motion for
summary judgment and dismissed Smith’s claims on the merits.
Smith filed a motion for reconsideration and/or new trial
arguing that the district court’s order in Smith I reserved her
right to file a later ERISA claim against Perry Homes. In
support of her contention, Smith relied on King v. Provident Life
and Accident Ins. Co., 23 F.3d 926 (5th Cir. 1994), where this
court held that claims in a second suit, which would otherwise be
No. 01-20860
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precluded by res judicata, were permissible when the order
dismissing the first suit contained an express reservation of the
right to bring a second suit on the issue in question. King, 23
F.3d at 928, 930.
Smith’s reservation argument was raised for the first time
in a Rule 59(e) motion. Smith’s motion for reconsideration
and/or new trial is properly construed as a Rule 59 motion
because a motion challenging the correctness of the judgment is
treated as a Rule 59 motion for purposes of Rule 4(a)(4),
regardless of the label applied to the motion, if it is made
within the 10-day limit for Rule 59 motions. Mangieri v.
Clifton, 29 F.3d 1012, 1015 n.5 (5th Cir. 1994)(citation
omitted). This court reviews a district court's decision to
grant or deny a Rule 59(e) motion for abuse of discretion; the
court's decision need only be reasonable. See Midland W. Corp.
v. Fed. Deposit Ins. Corp., 911 F.2d 1141, 1145 (5th Cir. 1990).
Both King and the source material on which it relies require
an express reservation of the right to bring a subsequent suit in
order to avoid the preclusive effect of a prior judgment. Smith
concedes that the district court’s order in Smith I does not
contain an express reservation of her right to bring a subsequent
ERISA claim. Accordingly, the district court in Smith II did not
abuse its discretion when it declined to extend King to her case.
Therefore, the district court’s judgment is affirmed.
AFFIRMED.