* After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 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.

FILED

United States Court of Appeals

Tenth Circuit

June 28, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

SUZANNE RUSSELL,

Plaintiff-Appellant,

v.

CHASE INVESTMENT SERVICES

CORP.,

Defendant-Appellee.

No. 10-5016

(D.C. No. 4:09-CV-00360-GKF-TLW)

(N.D. Okla.)

ORDER AND JUDGMENT*

Before TACHA, HARTZ, and O’BRIEN, Circuit Judges.

Suzanne Russell appeals the district court’s dismissal of her complaint

alleging that Chase Investment Services Corp. (Chase) violated its fiduciary

duties to her under the Employee Retirement Income Security Act (ERISA). The

court ruled that the complaint failed to state a claim and, alternatively, that the

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1 Ms. Russell alleged that after she confronted Ms. Kennemer with the

withdrawals, Ms. Kennemer committed suicide.

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case was barred by the statute of limitations. We take jurisdiction under 28

U.S.C. § 1291 and affirm based on the statute of limitations. 

Background

The underlying facts are undisputed. Ms. Russell is the surviving spouse of

Donald R. Russell, who died on March 31, 2009. On April 7, 1999, Mr. Russell

executed a durable power of attorney, to become effective upon his disability or

incapacity, naming his daughter, Brenda Kennemer, as his attorney-in-fact and

giving her broad power over his property. In June 1999, Mr. Russell arranged for

Chase to serve as custodian of his Individual Retirement Account (IRA). The

funds in the IRA were derived from Mr. Russell’s pension plan. Mr. Russell

became incapacitated in April 2000, and Ms. Russell and Ms. Kennemer were

appointed his general co-guardians in February 2001. 

Under the authority of the durable power of attorney, Ms. Kennemer

withdrew the entire value of the IRA, some $99,000, from the account between

2002 and 2005. Claiming the appointment of a general guardian rendered the

durable power of attorney invalid, Ms. Russell filed suit in her capacity as

guardian against Chase to recover the money Ms. Kennemer had withdrawn from

the IRA.1

 The federal district court certified the question to the Oklahoma

Supreme Court, who answered it in the negative, holding that “the appointment of

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a general guardian of the property does not automatically withdraw all of a ward’s

assets such than an attorney-in-fact is without power to act pursuant to a durable

power of attorney.” Russell v. Chase Inv. Servs. Corp., 212 P.3d 1178, 1186

(Okla. 2009). Accordingly, the federal complaint was dismissed.

Ms. Russell then filed the present suit in her individual capacity against

Chase, asserting that in allowing disbursements from the IRA, Chase had violated

its fiduciary duties to her “in violation of her right to the joint and survivor

annuity.” Aplt. App. at 5. The district court dismissed the complaint. 

Ms. Russell appeals. 

Analysis

The district court held that the IRA was not subject to ERISA, so the

complaint failed to state a claim under Fed. R. Civ. P. 12(b)(6). Alternatively, the

court held that even if the complaint stated an ERISA claim, it was barred by the

statute of limitations, 29 U.S.C. § 1113(2), which provides that a claim based on a

breach of fiduciary duty must be filed within “three years after the earliest date on

which the plaintiff had actual knowledge of the breach.” We need not review the

first ruling because we conclude that Ms. Russell filed her lawsuit for breach of

fiduciary duty more than three years after she had actual knowledge of the facts

on which she based her complaint. We review de novo the district court’s

determination that the complaint was barred by the statute of limitations. Lang v.

Aetna Life Ins. Co., 196 F.3d 1102, 1104 (10th Cir. 1999). 

Appellate Case: 10-5016 Document: 01018448204 Date Filed: 06/28/2010 Page: 3
-4-

Ms. Russell argues that Oklahoma state law provides the controlling statute

of limitations, and she asserts that she had five years to file suit under

Oklahoma’s statute of limitations for breach of contract. See Okla. Stat. tit. 12,

§ 95(A)(1). She relies on case law holding that where ERISA provides no

applicable statute of limitations, the courts apply an analogous state-law

limitations period. See Held v. Mfrs. Hanover Leasing Corp., 912 F.2d 1197,

1207 (10th Cir. 1990) (holding that “an ERISA action for benefits is analogous to

a state-law action upon a contract,” and applying state-law statute of limitations). 

She contends that her “cause of action for recovery of her joint and survivor

benefits arose on the day her husband died [March 31, 2009],” Aplt. Opening Br.

at 16, so her lawsuit filed June 9, 2009, was timely. 

Although Ms. Russell argues on appeal that she seeks recovery of her joint

and survivor benefits in the IRA, the IRA is virtually without value. Rather, she

seeks reimbursement from Chase for the monies paid from the IRA to

Ms. Kennemer on her theory that Chase intentionally breached its fiduciary duties

in allowing the withdrawals. This was the theory of recovery alleged in her

complaint. Aplt. App. at 5. Held is inapposite because, there, the plaintiff sought

“an order enforcing his rights as a participant in the pension plan,” 912 F.2d at

1199, for which there was not an applicable ERISA limitations period, id. In

contrast, ERISA contains a statute of limitations applicable “to actions brought to

redress a fiduciary’s breach of its obligations to enforce the provisions of

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ERISA.” Trustees of Wyo. Laborers Health & Welfare Plan v. Morgen & Oswood

Constr. Co., 850 F.2d 613, 618 n.8 (10th Cir. 1988) (citing 29 U.S.C. § 1113);

accord Held, 912 F.3d at 1200 (noting that ERISA contains a limitations period

applicable to violations of fiduciary responsibilities, 29 U.S.C. § 1113). 

Ms. Russell’s claims are covered by 29 U.S.C. § 1113(2). She concedes

that she knew in July 2005 that Ms. Kennemer had withdrawn the funds from the

IRA account. Therefore, she had actual knowledge of Chase’s alleged breach of

fiduciary duty in July 2005. The statute of limitations ran in July 2008. Her

complaint filed June 9, 2009, is thus time-barred.

Conclusion

The judgment of the district court is AFFIRMED.

Entered for the Court

Deanell R. Tacha

Circuit Judge

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