United States District Court, D. Colorado
JOAN OBESLO, JAMES DIMAGGIO, ANNE HALL, CAROL A. REYNON-LONGORIA, CYNTHIA BERNAL, TINA GORRELL-DEYERLE, on behalf of Great West Funds, Inc., Plaintiffs,
GREAT-WEST CAPITAL MANAGEMENT, LLC, Defendant. DUPLASS, ZWAIN, BOURGEOIS, PFISTER & WEINSTOCK APLC 401 K PLAN, Plaintiff,
GREAT-WEST CAPITAL MANAGEMENT, LLC, Defendant. JOAN OBESLO, JAMES DIMAGGIO, ANNE HALL, CAROL A. REYNON-LONGORIA, CYNTHIA BERNAL, and TINA GORRELL-DEYERLE, on behalf of Great-West Funds, Inc., Plaintiffs,
GREAT-WEST LIVE & ANNUITY INSURANCE CO, and GREAT-WEST CAPITAL MANAGEMENT, LLC, Defendants.
ORDER GRANTING DEFENDANTS' MOTION IN LIMINE AND
GRANTING DEFENDANTS' MOTION TO DISMISS
CHRISTINE M. ARGUELLO JUDGE
matter is before the Court on Defendants Great-West Capital
Management, LLC and Great-West Life & Annuity Insurance
Company, LLC's Motion in Limine to Exclude Claims and
Evidence Relating to Funds not Continuously Owned throughout
Litigation and Unregistered Investment Products (Doc. # 306)
as well as Defendants' Motion to Dismiss Pursuant to
Fed.R.Civ.P. 12(b)(1) (Doc. # 337). Plaintiffs filed
Responses (Doc. ## 314, 343) to both Motions. For the
following reasons, the Court grants each Motion.
case is a shareholder derivative action that arises under
§ 36(b) of the Investment Company Act
(“ICA”), 15 U.S.C. § 80a-35(b). As with
derivative actions generally, a continuous ownership
requirement “throughout the pendency of the
litigation assures that the plaintiff will
adequately represent the interests of the security holders in
obtaining a recovery for the benefit of the company.”
(Doc. # 270 at 10.) (emphasis added) (quoting Santomenno
ex rel. John Hancock Trust v. John Hancock Life Ins.
Co., 677 F.3d 178, 182 (3d Cir. 2012)). Thus, a
plaintiff who “disposes of his or her holdings in the
company . . . no longer has a stake in the outcome of the
litigation because any recovery would inure to the benefit of
existing securities holders, not former ones.”
(Id.) (quoting Santomenno, 677 F.3d at
Motions at issue, Defendants assert that Plaintiffs should be
precluded from introducing evidence at trial or seeking
recovery on funds that they have not continuously owned.
(Doc. # 306.) Defendants further assert that various
Plaintiffs should be dismissed for lack of standing because
they no longer meet the continuous ownership requirement.
(Doc. # 337.) The Court will address Defendants' Motion
to Dismiss before turning to the Motion in Limine.
DEFENDANTS' MOTION TO DISMISS
constitutional elements of standing “. . . injury,
causation, and redressibility . . . must exist before federal
courts will exercise jurisdiction.” Schutz v.
Throne, 415 F.3d 1128, 1133 (10th Cir. 2005). “A
court lacking jurisdiction cannot render judgment but
must dismiss the cause at any stage of the
proceedings in which it becomes apparent that
jurisdiction is lacking.” Siloam Springs Hotel,
L.L.C. v. Century Sur. Co., 906 F.3d 926, 931 (10th Cir.
2018) (emphasis added) (quoting Basso v. Utah Power &
Light Co., 495 F.2d 906, 909 (10th Cir. 1974)). As the
party seeking to invoke the jurisdiction of this Court,
Plaintiffs bear the burden of alleging facts that support
jurisdiction. See Dutcher v. Matheson, 733 F.3d 980,
985 (10th Cir. 2013) (“Since federal courts are courts
of limited jurisdiction, we presume no jurisdiction exists
absent an adequate showing by the party invoking federal
Court's prior September 11, 2018 Order, the Court
concluded that extending a continuous ownership requirement
to ICA claims is “the logical extension of the Tenth
Circuit's continuous ownership requirement in shareholder
derivative actions, ” and it advances the purposes of
the ICA. (Doc. # 270 at 10.) The Court incorporates by
reference its analysis as set forth in the September 11, 2018
concede that Carol Reynon-Longoria, Cynthia Bernal, and James
DiMaggio no longer satisfy the continuous ownership
requirement. (Doc. # 337-1.) Therefore, those Plaintiffs are
dismissed from this case because they lack standing to bring
claims on behalf of any investment company within the
Great-West Funds, Inc. complex. See generally (Doc.
# 270) (Order on Defendants' Motion to Dismiss).
Similarly, Plaintiffs' claims on behalf of the Great-West
Profile Funds and the Great-West
SecureFoundation Lifetime 2015 Fund are dismissed because
Plaintiffs concede that no Plaintiff currently owns shares of
those funds. (Doc. # 337-1.)
DEFENDANTS' MOTION IN LIMINE
Motion in Limine asserts that Plaintiffs should be precluded
from introducing evidence-or raising arguments-about
“any Funds in which Plaintiffs have not owned shares
from the inception of and throughout the pendency of this
litigation . . . .” (Doc. # 306 at 9.) Defendants
assert that, according to the continuous ownership
requirement, Plaintiffs lack standing to raise claims
regarding those funds. The Court agrees that such matters
should not be raised at trial.
Rule of Evidence 401 indicates that evidence is relevant if
it “has any tendency to make a fact more or less
probable than it would be without the evidence” and
“the fact is of consequence in determining the
action.” Additionally Rule 403 provides that the Court
“may exclude relevant evidence if its probative value
is substantially outweighed by a danger of . . . unfair
prejudice, confusing the issues, misleading the jury, undue
delay, wasting time, or needlessly presenting cumulative
preliminary matter, if Plaintiffs lack standing to raise
claims about a particular Fund, evidence about that Fund is
not relevant. Assuming, arguendo, that evidence
about those Funds were to have some relevance to the claims
at issue, any probative value would be substantially
outweighed by a danger of confusing the issues, undue delay,
wasting time, and needlessly presenting cumulative evidence.
In addition, limiting the presentation of evidence to Funds
for which Plaintiffs ...