IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

PAUL FLETCHER, )

)

Plaintiff, )

) Cause No. 2:14-CV-231

vs. )

)

HOEPPNER WAGNER & EVANS, )

LLP, et al., )

)

Defendants. )

OPINION AND ORDER

This matter is before the Court on the “Motion to Vacate or

Amend Court’s Order Dated September 25, 2017, Granting Defendant

Golomb’s Motion for Summary Judgment and Dismissal of Counts II-IV

of Fletcher’s First Amended Complaint,” filed by pro se Plaintiff,

Paul Fletcher, on October 26, 2017 (DE #205). For the reasons set

forth below, the motion (DE #205) is DENIED. 

BACKGROUND

On September 25, 2017, this Court entered a lengthy order

granting defendant Wayne Golomb’s motion for summary judgment, and

dismissing the claims against Golomb (Counts II-IV of the first

amended complaint). (DE #26.) This Court found that summary

judgment was appropriate on the three claims against Golomb:

constructive fraud, constructive trust, and “accounting and

turnover.” 
Pro se plaintiff, Fletcher, indicates that the present motion

is being filed “in accordance with Rule 52(b) or 54(b); or in the

event that the Order granting Golomb [sic.] Summary Judgment

constitutes a ‘final judgment,’ in accordance with Rule 59.” (DE

#205 at 1.) Golomb filed a response on November 13, 2017 (DE

#208). Fletcher filed a reply on November 28, 2017 (DE #215). 

Therefore, the motion is fully briefed and ready for adjudication. 

DISCUSSION

Rule 59(e) applies to motions to “alter or amend a judgment.” 

Fed. R. Civ. P. 59(e). However, partial summary judgment (and that

is what this Court’s ruling was, since there is still a claim

pending against defendant, Hoeppner Wagner & Evans, LLP), is not a

final entry of judgment within the meaning of Rule 59. See Deimer

v. Cincinnati Sub-Zero Prods., Inc., 990 F.2d 342, 346 (7th Cir.

1983). 

Fletcher’s motion may properly be considered under Rule 54(b). 

See Fed. R. Civ. P. 54(b) (“[A]ny order or other decision . . .

that adjudicates fewer than all the claims or the rights and

liabilities of fewer than all the parties . . . may be revised at

any time before the entry of a judgment adjudicating all the claims

and all the parties’ rights and liabilities.”). Under Rule 54(b),

the Court may exercise its inherent authority to reconsider or

revise its interlocutory orders. Bell v. Taylor, No. 1:13-cv2
00798-TP-DKL, 2015 WL 13229553, at *2 (S.D. Ind. Dec. 4, 2015). 

These motions to consider perform a “valuable function” in the

limited circumstances where a Court has: (1) patently misunderstood

a party, (2) made a decision outside the adversarial issues

presented to the Court by the parties, or (3) made an error not of

reasoning but of apprehension. Bank of Waunakee v. Rochester

Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990). 

Additionally, a motion to reconsider may be appropriate when a

controlling or significant change in the law or facts has occurred

since the submission of the issue to the Court. Id. Because such

problems “rarely arise,” a motion to reconsider “should be equally

rare.” Id. at 1191. 

Here, the Court did not misapprehend Fletcher’s arguments, or

make a decision outside the presented issues, or make an error not

of reasoning, but of apprehension. Although Fletcher claims the

Court “overlooked and misinterpreted significant circumstantial

evidence” (DE #205 at 1), this Court reviewed hundreds of pages of

documents attached as exhibits (including those attached to

Plaintiff’s response at DE #189), allowed and considered the extra

briefing in this case, and properly relied upon relevant facts

supported in the record. 

Fletcher claims this Court “missed that Golomb stated in his

deposition that Taylor told Golomb not to bother with trading in

his Fidelity accounts because he was not interested” but “the

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Fidelity Symphony log shows otherwise” (DE #205 at 4) - however,

these exact facts were recounted by the Court in its order and

considered (DE #204 at 7; 16-17). 

Fletcher claims he “did not anticipate that he would have to

address” his constructive fraud claims anew because that count

survived a motion to dismiss (DE #205 at 2); however, the standards

are different on a motion to dismiss and summary judgment. Golomb

properly alerted the pro se Plaintiff to his duty to respond to a

motion for summary judgment in accordance with Timms v. Frank, 953

F.2d 281 (7th Cir. 1992). (DE #144.) 

This Court did state in ruling on the motion to dismiss that

“construing all inferences which may be reasonably drawn from the

facts in the light most favorable to Plaintiff,” as the Court had

to at that stage of the proceedings, the Court found that Fletcher

adequately pled that he was the “intended third-party beneficiary

of those funds” and he pled facts sufficient to state a cause of

action for constructive fraud. (DE #66 at 9.) On summary judgment,

it was the time for Fletcher to marshal his facts and evidence and

show that Golomb did actually owe a fiduciary duty to Fletcher

based upon their relationship. See Payne v. Pauley, 337 F.3d 767,

771 (7th Cir. 2003) (a “party opposing summary judgment may not

rest on the pleadings, but must affirmatively demonstrate that

there is a genuine issue of material fact for trial.”); see also

Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir.

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2005) (emphasizing that summary judgment is “not a dress rehearsal

or practice run; it is the put up or shut up moment in a lawsuit,

when a party must show what evidence it has that would convince a

trier of fact to accept its version of the events.”). Fletcher did

not do so. Instead, the undisputed facts showed that Taylor gave

Golomb limited trading authority over the Fidelity investment

accounts, there was no relationship between Golomb and Fletcher,

although Fletcher was at one time a beneficiary, his status was

changed, and there was no evidence in the record that Golomb had

the power to change the beneficiary. (DE #204 at 18-19.) As this

Court specifically found, even taking Fletcher’s evidence (which

contradicts some statements Golomb made during his deposition) as

true, this “does not alter or lesson Fletcher’s duty to properly

establish a cause of action.” (Id. at 16-17.) And in this case,

Fletcher failed to show that Golomb owed him a fiduciary duty which

is required for a claim of constructive fraud. (Id. at 17-19.)

Moreover, the Court found that “even if Fletcher could show

that Golomb owed him a fiduciary duty, Fletcher still cannot

satisfy the fifth part of the test - that Golomb gained an

advantage at Fletcher’s expense.” (DE #204 at 19 (emphasis in

original).) This Court already considered the $30,000 gift that

Taylor’s mother gave Golomb, but found that there was no evidence

that this money came out of the retirement account that Golomb had

limited trading authority over, or that Fletcher should have

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received this money if he was still the designated beneficiary. 

(Id. at 20.) While Fletcher now claims that he has new evidence

that Mrs. Taylor’s bank records do not show any withdrawal of

$30,000 (DE #205 at 9), this evidence still does not show that

Golomb gained an economic advantage at the expense of Fletcher. 

All of the arguments presented in Fletcher’s motion and reply

are either arguments that could have been made before (such as his

citations to Morfin v. Estate of Martinez, 831 N.E.2d 791 (Ind. Ct.

App. 2005), Thomas v. Briggs, 189 N.E. 389 (Ind. Ct. App. 1934),

Walker v. Lawson, 514 N.E.2d 629 (Ind. Ct. App. 1987), McDaniel v.

Shepherd, 577 N.E.2d 239 (Ind. Ct. App. 1991), and Scott v. Bodor,

Inc., 571 N.E.2d 313 (Ind. Ct. App. 1991)), or arguments that

actually were made to this Court in the underlying motion. This is

inappropriate. See United States of America for the Use and

Benefit of Sustainable Modular Mgmt., Inc., v. Custom Mech. Sys.,

Corp., No. 1:16-cv-02915-JMS-MJD, 2017 WL 4405050, at *3 (S.D. Ind.

Oct. 4, 2017) (quotation and citation omitted) (finding motions to

amend are not appropriately used to advance arguments or theories

that could and should have been made before, and “[t]he same can be

said of motions to reconsider under Rule 54(b).”).

Finally, Fletcher attempts in his reply to distinguish that he

did not claim that Zupan forged Taylor’s actual signature on the

change of beneficiary form, but rather that he was arguing that

“Zupan impersonated Taylor on a call to Fidelity on August 1, 2008

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and in that call to Fidelity’s agent, Kim Rice, dictated the

content of a new beneficiary assignment form that made Zupan the

new beneficiary of all of Taylor’s Fidelity accounts, completely

displacing Fletcher as sole beneficiary on all his accounts since

inception in 1997.” (DE #215 at 1.) However, whether he is claiming

that Zupan actually forged Taylor’s signature, or that Zupan

impersonated Taylor on a call to make the new beneficiary forms,

does not have any bearing on the elements of the causes of action

in this case. Moreover, it does not show that the Court made an

error of apprehension in finding that Golomb was entitled to

judgment as a matter of law on the counts of constructive fraud,

constructive trust, and “accounting and turnover.” This Court

finds that summary judgment was appropriate, and declines to revise

its order. 

CONCLUSION

For the reasons set forth above, the “Motion to Vacate or

Amend Court’s Order Dated September 25, 2017, Granting Defendant

Golomb’s Motion for Summary Judgment and Dismissal of Counts II-IV

of Fletcher’s First Amended Complaint,” filed by pro se Plaintiff,

Paul Fletcher, on October 26, 2017 (DE #205), is DENIED. 

DATED: December 18, 2017 /s/ RUDY LOZANO, Judge

United States District Court

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