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January 14, 2004.


The opinion of the court was delivered by: CHARLES SIRAGUSA, District Judge Page 2



  This case is back before the Court on Plaintiff's motion pursuant to Federal Rule of Civil Procedure 59 to alter or amend the judgment entered following this Court's dismissal of the first amended complaint. See Crowley v. Corning, Inc., 234 F. Supp.2d 222 (W.D.N.Y. 2002) ("Crowley I"). For the reasons stated below, the Court denies plaintiff's application.


  The Court included a detailed discussion of the facts in its first decision, familiarity with which will be assumed. Plaintiff, who is a resident of Georgia and over the age of 55, is a retiree of Corning, Incorporated ("Corning"), and a participant in the Corning Investment Plan ("Plan"). Corning is the sponsor of the Plan. The Plan, by its own terms, is governed by New York law and by the Employee Retirement Income Security Act of 1974 ("ERISA"), Pub.L. 93-406, Title I, § 2, Sept. 2, 1974, 88 Stat. 832, codified at 29 U.S.C. § 1001 (1999), et seq. Jurisdiction in this Court arises under ERISA § 502(e)(1), 29 U.S.C. § 1132(e)(1), and venue is proper in this District since the Plan is administered here, and since plaintiff alleges that the breaches of fiduciary duties occurred here. Plaintiff is bringing this proceeding as a class action pursuant to Federal Rule of Civil Procedure 23, however, the issue of whether this action should be certified as a class action is not presently before the Court.

  Plaintiff is suing Corning and a number of individuals. John Does 1-30 are the individual members of the Plan's Investment Committee ("Committee"). John S. Brown, James B. Flaws, John H. Foster, Gordon Gund, John M. Hennessy, James R. Page 3 Houghton, James J. O'Connor, Catherine A. Rein, Deborah D. Rieman, H. Onno Ruding, William D. Smithburg, Hansel E. Tookes, II, Peter F. Volanakis, and Wendell P. Weeks, are, or were, individual members of Coming's Board of Directors ("Board"), as are Richard Roes 1-30, whose identities are unknown to plaintiff.

  A. Procedural History

  Plaintiff filed a complaint in this Court on April 1, 2002, alleging four causes of action under ERISA. On May 21, 2002, plaintiff filed his first amended complaint making typographical corrections, but not otherwise substantively altering the complaint. On August 6, 2002, defendants moved to dismiss the first amended complaint for failure to state a cause of action.

  The Court heard oral argument on the motion on December 4, 2002, and on December 9, 2002, issued a decision granting defendants' motion in its entirety. During oral argument, plaintiff withdrew the third cause of action, alleging fraud. Plaintiff, as an exhibit to his motion papers, filed a proposed second amended complaint ("Complaint") in which the fraud claim is not reasserted.

  Following issuance of the Court's decision and order dismissing the first amended complaint, plaintiff contacted the Court Clerk and asked that judgment not be entered. However, judgment had already been entered in favor of defendants on December 12, 2002, and the case was closed on the Court's docket.*fn1 Plaintiff filed the Page 4 present motion, which he captioned as a motion to open the judgment, on December 20, 2002, and the Court heard oral argument on the motion on April 10, 2003. The parties have each submitted numerous additional authorities supporting their positions, the latest having been received by the Court on October 6, 2003. Fifth*fn2 Notice of Supplemental Authority (Oct. 2, 2003).

  B. The Court's Prior Decision

  The essence of Plaintiff's first amended complaint was that the Plan's fiduciaries failed either to warn plan participants of Coming's less than desirable financial condition, despite probably having inside information, or failed to divest the Plan of Corning stock when that stock began to fall in price during the "class period," or both. The class period was alleged to have started on February 28, 2000 and to have continued through July 25, 2001. During that period, Corning changed its business strategy and began to concentrate on its telecommunications component (fiber optic cables and the parts that make them work). It acquired assets by purchasing companies at prices that plaintiff alleged were far above their actual value. Subsequently, during the alleged class period, the bottom fell out of the telecommunications market and, as a result, Corning was left with obsolete inventory and excess manufacturing capacity. Corning stock, which had been trading at less than $23 per share four months prior to commencement of the class period, rose to a high of $113 per share, then dropped to less than $20 per share.

  In its December 9, 2003 decision, the Court found that plaintiff had failed to state a cause of action against any of the various defendants sued. First, the Court found that Page 5 defendant Corning was not a fiduciary under the Plan, only a settlor, and consequently that its filings with the Securities Exchange Commission ("SEC") were not duties undertaken as a fiduciary under ERISA. Second, the Court found that the first amended complaint did not allege a violation of the Board defendants' duties under the Plan, which consisted of appointing, retaining, or removing members of the Committee and the preparation of SEC filings. As the Court determined, that like defendant Corning, this preparation of SEC filings was not done by the Board in a fiduciary capacity under the Plan. Finally, the Court found that the first amended complaint's conclusory allegations, that Committee members allegedly failed to disclose or act on inside information, was insufficient to sustain the cause of action against them.

  C. Plaintiff's Proposed Second Amended Complaint

  Plaintiff's proposed second amended complaint ("Complaint") repeats the same causes of action dismissed in the Court's previous decision, but adds significantly greater detail, as well as statutory citations, and case law holdings*fn3 in support of plaintiff's position. Although it does not alter the facts with respect to Corning or the board of director defendants, it does reorganize the allegations into two claims:
Claim I: The Corning Stock Fund was an Imprudent Investment; and
Claim II: Defendants Negligently Misrepresented and Failed to Disclose Material Information.
  The first claim alleges that the defendants breached their fiduciary duties under ERISA by permitting the Plan to invest in the Corning stock fund when, based on publically Page 6 available information, it was imprudent to do so. More specifically, plaintiff alleges that Corning stock was in a "high flying, high risk, `new economy' telcom/internet sector of the stock market" and, therefore, highly imprudent as a Plan asset. Complaint ¶ 3.

  The second claim alleges that defendants breached their fiduciary duties by negligently making misrepresentations and by failing to disclose material information to the Plan participants, which was required for them to make informed decisions about their investments.


  Plaintiff's motion is brought under Federal Rule of Civil Procedure 59(e) and, although entitled a motion to reopen the judgment, is actually a motion to alter or amend the judgment. In conjunction with that motion, plaintiff also moves to amend the first amended complaint with a second amended complaint pursuant to Federal Rule of Civil Procedure 15(a). Thus, the Court must look to the standards governing a joint Rule 59(e) and Rule 15(a) motion.

  In Patterson-Stevens, Inc. v. Int'l Union of Operating Eng'rs Local Union No. 17, 164 F.R.D. 4 (W.D.N.Y. 1995), the Honorable John T. Curtin of this District, reviewed the Second Circuit case law pertaining to a joint Rule 59(e) and Rule 15(a) motion. He noted that, generally, the courts liberally allow amendments to complaints under Rule 15(a), but that once a judgment had been entered, the interests of finality of judgment come into play. In that regard, under Rule 59(e), this Court may set aside the subject judgment for one, or more, of the following three reasons: (1) an intervening change in controlling law; (2) the availability of new evidence not previously available; or (3) the Page 7 need to correct a clear error of law or prevent manifest injustice. Id. (quotation marks and citations omitted). Since plaintiff alleges nothing in his second amended complaint that was not known, or could not have been known, at the time the fist amended complaint was filed (April 1, 2002), and since he does not allege any changes ...

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