PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

TRENT LEBAHN, 

 Plaintiff - Appellant, 

v. 

ELOISE OWENS, former pension 

consultant for the National Farmers Union 

Pension Committee, 

 Defendant - Appellee. 

No. 14-3244 

_________________________________ 

Appeal from the United States District Court 

for the District of Kansas 

(D.C. No. 6:14-CV-01001-CM-JPO)

_________________________________ 

Randall K. Rathbun, Depew Gillen Rathbun & McInteer, LC, Wichita, Kansas, for 

Plaintiff-Appellant. 

Alan L. Rupe, Lewis Brisbois Bisgaard & Smith, LLP, Wichita, Kansas, for DefendantAppellee. 

_________________________________ 

Before GORSUCH, MURPHY, and McHUGH, Circuit Judges. 

_________________________________ 

McHUGH, Circuit Judge. 

_________________________________ 

FILED 

United States Court of Appeals

Tenth Circuit 

February 19, 2016

Elisabeth A. Shumaker 

Clerk of Court

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I. INTRODUCTION 

Trent Lebahn sued Eloise Owens, a consultant for Mr. Lebahn’s employee 

pension plan, for negligently misrepresenting the amount of his monthly retirement 

benefits. The district court dismissed Mr. Lebahn’s negligent-misrepresentation 

claim, concluding it was preempted by the Employee Retirement Income Security 

Act. Mr. Lebahn then filed an untimely Rule 59 motion, arguing preemption did not 

apply because Ms. Owens was not a fiduciary of the pension plan. The district court 

construed the untimely motion as one under Rule 60(b) and denied relief, reasoning 

that Mr. Lebahn’s argument regarding Ms. Owens’s fiduciary status had been raised 

too late. Mr. Lebahn now appeals. 

Because we lack jurisdiction to consider Mr. Lebahn’s challenge to the district 

court’s underlying judgment, our review is limited to the district court’s denial of 

relief under Rule 60(b). Mr. Lebahn has not demonstrated the district court abused its 

discretion in denying relief under Rule 60(b), and we therefore affirm the district 

court’s judgment. 

II. BACKGROUND 

Trent Lebahn was a sales manager for National Farmers Union Insurance 

Company/Midwest Agency (Midwest).1

 In early 2012, Mr. Lebahn began to consider 

early retirement. He contacted Eloise Owens, a pension consultant for the National 

Farmers Union Uniform Pension Plan (the Plan), to determine if the benefits 

 1

 Because the underlying judgment in the district court is the grant of a motion 

to dismiss, we recite the facts as alleged by the plaintiff, Mr. Lebahn. Albers v. Bd. of 

Cty. Comm’rs of Jefferson Cty., Colo., 771 F.3d 697, 699 n.1 (10th Cir. 2014). 

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available to him under the Plan would be adequate to support his family if he retired 

early. Ms. Owens calculated Mr. Lebahn’s early-retirement benefits at $8,444.18 per 

month. Mr. Lebahn questioned the accuracy of Ms. Owens’s calculations, as the 

resulting monthly benefit was substantially greater than the amount reflected in 

Mr. Lebahn’s annual statements from the Plan, but Ms. Owens and others working in 

the Plan’s pension department confirmed that her calculations were correct. 

Mr. Lebahn elected to retire, and as represented, he received $8,444.18 per 

month in retirement benefits from July 2012 through March 2013. But in March 

2013, a representative of the Plan contacted Mr. Lebahn and informed him he was 

being overpaid. According to the Plan representatives, Mr. Lebahn should have been 

receiving only $3,653.78 in monthly benefits and now owed the Plan $43,113.60 he 

had received in overpayments. Upon learning that his retirement benefit was much 

lower than represented, Mr. Lebahn attempted to return to work. But his position 

with Midwest was no longer available, and the only available work would have 

required him to move across state or to spend significant time travelling. 

In early 2014, Mr. Lebahn filed this action in the United States District Court 

for the District of Kansas. He alleged a claim of negligent misrepresentation against 

Ms. Owens for incorrectly calculating his monthly retirement benefit and inducing 

him to retire early in reliance on that calculation. Ms. Owens moved to dismiss Mr. 

Lebahn’s complaint, arguing his common-law negligent-misrepresentation claim was 

preempted by the Employee Retirement Income Security Act (ERISA). Mr. Lebahn 

opposed that motion, contending his claim did not “relate to” an ERISA plan because 

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he sought recovery only from Ms. Owens for the economic loss caused by her 

negligent misrepresentations, not recovery of additional benefits under the plan. 

The district court ruled in favor of Ms. Owens, concluding Mr. Lebahn’s 

claims related to the Plan and, therefore, ERISA preempted his common-law claim. 

Specifically, the district court determined Ms. Owens’s allegedly negligent 

conduct—her miscalculation of Mr. Lebahn’s benefits—constituted “administration” 

of the Plan; Mr. Lebahn’s damages would be based on a calculation of potential Plan 

benefits; and “but for the Plan, plaintiff would have no claim—making the Plan itself 

a critical factor in the case.” The district court therefore granted Ms. Owens’s motion 

and dismissed Mr. Lebahn’s complaint, entering judgment on June 13, 2014. 

On July 14, 2014, Mr. Lebahn filed a “Motion for Reconsideration,” seeking 

relief under Rule 59(e) of the Federal Rules of Civil Procedure. In that motion, Mr. 

Lebahn argued for the first time that ERISA preemption did not apply because Ms. 

Owens was a third-party consultant rather than a fiduciary of the Plan. Mr. Lebahn 

contended that “[t]he fact that the defendant is a third party consultant was 

overlooked by [the district court] in its ruling” and that the district court therefore 

misinterpreted the law governing ERISA preemption, meriting relief under Rule 59. 

The district court first concluded Mr. Lebahn’s motion was not timely under 

Rule 59(e), which requires a motion to alter or amend a judgment to be filed within 

twenty-eight days of judgment—in this case no later than July 11, 2014. The district 

court therefore construed Mr. Lebahn’s untimely Rule 59 motion as a motion for 

relief from judgment under Rule 60(b). But the district court denied the motion, 

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reasoning Mr. Lebahn had failed to demonstrate “exceptional circumstances” that 

would merit relief under Rule 60. In reaching this conclusion, the district court 

determined that Mr. Lebahn’s arguments relating to Ms. Owens’s fiduciary status 

were “raised too late” because Mr. Lebahn “failed to bring this issue to the court’s 

attention until he lost the motion to dismiss.” The district court further concluded that 

a Rule 60(b) motion was “not the proper time to raise an argument” for the first time 

and that Mr. Lebahn’s untimely raising of the fiduciary issue was not an adequate 

basis for Rule 60(b) relief. The court accordingly denied Mr. Lebahn’s motion for 

reconsideration on October 10, 2014. Mr. Lebahn appealed from the district court’s 

denial of his motion for reconsideration on November 3, 2014. 

III. ANALYSIS 

A. Our Review is Limited to the Denial of 60(b) Relief 

Before addressing Mr. Lebahn’s arguments on appeal, we first note the limited 

scope of our review under these circumstances. This court has jurisdiction only to 

review district court judgments from which a timely notice of appeal has been filed. 

Bowles v. Russell, 551 U.S. 205, 214 (2007). Ordinarily, a notice of appeal must be 

filed within thirty days after the entry of the judgment or order appealed from. Fed. 

R. App. P. 4(a)(1)(A). Although a motion under Rule 59 or Rule 60 may toll a party’s 

time to file a notice of appeal under Federal Rule of Appellate Procedure 4(a)(4)(A), 

that tolling provision is triggered only by filing a Rule 59 or Rule 60 motion within 

twenty-eight days of the judgment. See Fed. R. App. P. 4(a)(4)(A) (providing that a 

timely Rule 59 motion, or a Rule 60 motion filed within twenty-eight days of the 

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judgment, tolls the time to appeal); Fed. R. Civ. P. 59(e) (providing that a motion to 

alter or amend judgment under Rule 59 must be filed no later than twenty-eight days 

after the entry of judgment). A Rule 59 or Rule 60 motion filed outside of this 

twenty-eight-day window therefore does not enlarge a party’s time to appeal. 

Here, the district court entered judgment dismissing Mr. Lebahn’s complaint 

on June 13, 2014. Mr. Lebahn filed his “Motion for Reconsideration” on July 14, 

2014—thirty-one days after judgment was entered and outside the window in which 

his motion, whether considered under Rule 59 or Rule 60, could successfully toll his 

time to file a notice of appeal from the district court’s order. Mr. Lebahn’s November 

3, 2014 Notice of Appeal—filed after the district court’s disposition of his motion for 

reconsideration—is therefore untimely with respect to the district court’s June 13 

order dismissing Mr. Lebahn’s complaint.2

 This court accordingly lacks jurisdiction 

to consider any challenges to the district court’s order granting Ms. Owens’s motion 

to dismiss. 

Instead, the Notice of Appeal was timely only with respect to, and our review 

is therefore limited to, the district court’s denial of Rule 60(b) relief. The district 

court’s ruling on a Rule 60(b) motion is separately appealable from the district 

court’s underlying judgment. Stouffer v. Reynolds, 168 F.3d 1155, 1172 (10th Cir. 

1999). But an appeal from denial of Rule 60(b) relief “raises for review only the 

 2

 Moreover, Mr. Lebahn’s notice of appeal and docketing statement identify 

only the district court’s October 10 order denying Rule 60(b) relief as the order 

appealed from. We lack jurisdiction to review orders not identified in the notice of 

appeal or its “functional equivalent.” Smith v. Barry, 502 U.S. 244, 248 (1992); 

Foote v. Spiegel, 118 F.3d 1416, 1422 (10th Cir. 1997). 

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district court’s order of denial and not the underlying judgment itself.” Id. And that 

review is ordinarily limited to whether the district court abused its discretion in 

denying relief from judgment. ClearOne Commc’ns, Inc. v. Bowers, 643 F.3d 735, 

754 (10th Cir. 2011). 

Mr. Lebahn does not challenge the district court’s treatment of his motion as 

one under Rule 60(b). Rather, he argues that, under the unique procedural posture of 

this case, we need not give deference to the district court’s Rule 60(b) decision and 

may directly consider his mistake-of-law challenge to the district court’s underlying 

judgment. Specifically, he contends Van Skiver v. United States, 952 F.2d 1241 (10th 

Cir. 1991), stands for the proposition that if a Rule 60(b)(1) motion asserting a 

mistake of law is brought within the time to appeal from the underlying judgment, an 

appellate court reviewing the district court’s denial of the Rule 60(b)(1) motion has 

“jurisdiction to overturn the underlying judgment” and may “consider the substantive 

legal merit of the court’s decision and need not defer to the court’s judgment.” 

Because Mr. Lebahn’s motion for reconsideration was filed within the time to appeal 

from the district court’s underlying judgment,3

 he concludes we may directly 

consider the legal merit of his mistake-of-law claim without evaluating the district 

court’s denial of Rule 60(b) relief. 

 3

 A notice of appeal from the district court’s June 13, 2014 judgment would 

normally need to be filed within thirty days, or no later than July 13, 2014. Fed. R. 

App. P. 4(a)(1)(A). But because July 13, 2014, was a Sunday, Mr. Lebahn’s time to 

file a notice of appeal ran through the following business day, July 14, 2014. Fed. R. 

App. P. 26(a)(1)(C). Mr. Lebahn’s motion for reconsideration was accordingly filed 

within his time to appeal the district court’s decision. 

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Mr. Lebahn’s argument stretches Van Skiver too far. Van Skiver merely 

recognizes that a Rule 60(b)(1) motion asserting mistake of law is untimely—and 

therefore gives the district court no authority to grant relief—unless brought within 

the time to appeal. 952 F.2d at 1244; accord Orner v. Shalala, 30 F.3d 1307, 1309–

10 (10th Cir. 1994) (holding where “no notice of appeal was timely filed from the 

order in which the mistake is alleged to have occurred, and the time for filing such a 

notice of appeal had expired when the [Rule] 60(b) motion was filed[,] . . . Rule 

60(b)(1) was not available to the district court as a basis upon which to grant . . . 

discretionary relief from its judgment” (first alteration in original)). But nothing in 

Van Skiver purports to give this court jurisdiction to disturb a district court’s 

underlying judgment from which no timely appeal was taken. To the contrary, Van 

Skiver holds that “appeal from the denial of the [Rule 60(b)] motion raises for review 

only the district court’s order of denial and not the underlying judgment itself.” 952 

F.2d at 1243. Mr. Lebahn’s argument that we have “jurisdiction to overturn the 

underlying judgment” and may directly consider whether the district court made a 

mistake of law in granting the motion to dismiss is thus without merit. 

Even if we read Mr. Lebahn’s argument more narrowly, as asserting only that 

we may review the district court’s decision under these circumstances nondeferentially, that argument nevertheless fails. Mr. Lebahn here relies on Moore’s 

treatise on federal practice, which makes the unexceptional observation that where 

the district court “reviews its own mistake of law under Rule 60(b)(1) and that 

determination is appealed,” a court of appeals “will reach the substantive legal merits 

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of the underlying judgment” and “does not defer to the judgment of the district 

court.” 12 James Wm. Moore et al., Moore’s Federal Practice – Civil § 60.68 (2015). 

We agree that where a district court makes a legal error in reviewing its own prior 

decision, we do not defer to the district court’s erroneous legal conclusion and the 

district court “by definition abuses its discretion.” See Koon v. United States, 518 

U.S. 81, 100 (1996). But these principles are of no help to Mr. Lebahn, because the 

district court here did not evaluate the purported legal errors in its decision. Rather, 

the district court ruled that Mr. Lebahn’s arguments were untimely, that Rule 

60(b)(1) was not an appropriate vehicle to raise arguments that could have been 

raised earlier, and that the purported mistakes were arguable at best and therefore not 

obvious and apparent on the record as would be necessary to justify Rule 60(b)(1) 

relief. These are not decisions interpreting legal questions, but equitable matters 

committed to the district court’s discretion. Van Skiver, 952 F.2d at 1243. Because 

the district court did not “review[] its own mistake of law” under Rule 60(b)(1) but 

instead exercised its discretion to conclude relief under Rule 60(b)(1) would be 

improper, Mr. Lebahn cannot demonstrate the district court’s Rule 60(b) decision is 

founded on a legal error that would permit us to subject the district court’s decision 

to de novo review. Our review is thus limited to whether the district court exceeded 

its discretion, and Mr. Lebahn’s arguments to the contrary are without merit.4

 4

 Because our review is thus limited, we do not address Mr. Lebahn’s 

argument that the district court erred in granting Ms. Owens’s motion to dismiss by 

applying a “but for” standard in evaluating whether Mr. Lebahn’s claim “related to” 

an ERISA plan. 

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B. The District Court Did Not Abuse Its Discretion in Denying 60(b) Relief 

Accordingly, we consider only whether the district court’s denial of Rule 60(b) 

relief was an abuse of discretion, “keeping in mind that Rule 60(b) relief is 

extraordinary and may only be granted in exceptional circumstances.” ClearOne 

Commc’ns, 643 F.3d at 754. Rule 60(b) relief is not properly granted where a party 

merely revisits the original issues and seeks to “challenge the legal correctness of the 

district court’s judgment by arguing that the district court misapplied the law or 

misunderstood [the party’s] position.” Van Skiver, 952 F.2d at 1244. And a Rule 

60(b) motion is not an appropriate vehicle to advance new arguments or supporting 

facts that were available but not raised at the time of the original argument. Cashner 

v. Freedom Stores, Inc., 98 F.3d 572, 577 (10th. Cir. 1996). We will not reverse the 

district court’s decision on a Rule 60(b) motion unless that decision is “arbitrary, 

capricious, whimsical, or manifestly unreasonable.” Weitz v. Lovelace Health Sys., 

Inc., 214 F.3d 1175, 1181 (10th Cir. 2000). 

In his motion for reconsideration, Mr. Lebahn argued for the first time that 

ERISA preemption did not apply because Ms. Owens was a third-party consultant of 

the Plan, not a Plan fiduciary. Mr. Lebahn relied on Airparts Co. v. Custom Benefit 

Services of Austin, 28 F.3d 1062 (10th Cir. 1994), in support of his argument that his 

negligent-misrepresentation claim did not “relate to” an ERISA plan because it would 

not “impact the traditional plan entities”: the principals, the employer, the plan, the 

plan fiduciaries, and the beneficiaries. Mr. Lebahn asserted that Airparts foreclosed 

the district court’s reasoning, and he faulted the district court for “miss[ing] the 

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overall holding of Airparts” and “overlook[ing]” the “fact that the defendant is a 

third party consultant” rather than a Plan fiduciary. In his reply memorandum in 

support of that motion, Mr. Lebahn further modified his argument, now asserting that 

the district court had improperly decided Ms. Owens was a fiduciary at the motionto-dismiss stage. 

The district court denied Mr. Lebahn’s motion to reconsider, explaining that 

Mr. Lebahn’s arguments were raised too late, that the district court had “applied the 

law to the facts and issues as pleaded by plaintiff and briefed by the parties,” and that 

Mr. Lebahn “failed to bring [the fiduciary issue] to the court’s attention until he lost 

the motion to dismiss.” The district court therefore concluded Mr. Lebahn had failed 

to meet his burden of “showing that the court made a mistake so exceptional that it is 

obvious on the record and merits setting aside the judgment.” 

Mr. Lebahn’s principal argument on appeal is that the district court “made a 

mistake of law when it implicitly held that [Ms. Owens] was a traditional plan 

entity”—i.e., a fiduciary of the Plan. Mr. Lebahn also argues the district court abused 

its discretion in denying Rule 60(b) relief because it improperly concluded Mr. 

Lebahn’s argument regarding Ms. Owens’s fiduciary status could have been raised 

sooner. 

To begin, the central premise of Mr. Lebahn’s argument—that the district 

court in fact determined Ms. Owens was a fiduciary of the Plan—is unfounded. This 

contention springs solely from the district court’s observation in granting Ms. 

Owens’s motion to dismiss that “subjecting defendant’s actions to Kansas law” 

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would “subvert[] ERISA’s objective of providing uniform guidelines for plan 

fiduciaries.” Seizing on this single reference to fiduciaries, Mr. Lebahn argues the 

district court impliedly found Ms. Owens was a fiduciary, a finding Mr. Lebahn 

maintains was inappropriate. But the record belies Mr. Lebahn’s contention that the 

district court made any such finding. As Mr. Lebahn concedes, whether Ms. Owens 

was or was not a fiduciary “was not an issue before the motion to dismiss was 

granted” because the parties had argued only “whether the state law claim related to 

an ERISA plan because of its effect on administration of the plan.” Where the issue 

had not been raised by the parties, the district court had no reason to rule on Ms. 

Owens’s fiduciary status. And in ruling on Mr. Lebahn’s motion for reconsideration, 

the district court explains that it considered Ms. Owens’s fiduciary status to be a 

novel issue, which Mr. Lebahn “failed to bring . . . to the court’s attention until he 

lost the motion to dismiss.” We cannot glean from the district court’s rulings a 

finding that Ms. Owens was a fiduciary, and we therefore cannot conclude that the 

district court abused its discretion in declining to reverse a decision it had not made. 

We next consider Mr. Lebahn’s contention that his arguments regarding Ms. 

Owens’s fiduciary status could not have been raised earlier and that the district court 

abused its discretion in ruling otherwise. Mr. Lebahn states “[t]he fiduciary issue was 

not raised until the Court sua sponte made its improper determination that Appellee 

was a fiduciary in its ruling on the motion to dismiss.” Thus, in Mr. Lebahn’s view, 

the argument regarding Ms. Owens’s fiduciary status “could not have been made 

before the Court issued its opinion on the motion to dismiss.” 

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But Mr. Lebahn’s argument ignores his obligation to bring relevant issues to 

the district court’s attention. “[I]t is not the court’s job to comb the record in order to 

make the non-movant’s arguments for him.” Cf. Cohlmia v. St. John Med. Ctr., 693 

F.3d 1269, 1282 (10th Cir. 2012) (internal quotation marks omitted). If, as Mr. 

Lebahn now contends, Ms. Owens’s fiduciary capacity is fatal to her claim of ERISA 

preemption, he should have raised this argument in opposition to Ms. Owens’s 

motion to dismiss. Tellingly, Mr. Lebahn’s complaint does not discuss Ms. Owens’s 

fiduciary status, or even contain the word fiduciary, and his opposition to Ms. 

Owens’s motion to dismiss does not address her fiduciary capacity at all. Certainly, 

the district court had no obligation to sua sponte construct an argument for Mr. 

Lebahn that he failed to raise on his own behalf. Id. And Mr. Lebahn has not 

demonstrated that an argument relating to Ms. Owens’s fiduciary status was 

unavailable to him in opposing her motion to dismiss. Rather, it appears Mr. Lebahn, 

through inadvertence or strategic choice, simply failed to raise the issue in opposition 

to the motion to dismiss. Only after the district court had ruled against him and 

dismissed the action did Mr. Lebahn argue that Ms. Owens’s status as a non-fiduciary 

of the Plan indicated that preemption was not appropriate. The district court did not 

abuse its discretion in determining that Mr. Lebahn’s fiduciary argument was not 

timely raised and was therefore not a proper basis on which to grant Rule 60(b) 

relief.5

 5

 Mr. Lebahn also argues the district court failed to address other “issues 

concerning mistake of law and ERISA preemption” and “specific instances where the 

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In the end, we are faced only with the question of whether the district court 

abused its discretion in denying relief on the basis it “overlooked” the issue of 

whether Ms. Owens was a fiduciary in its initial ruling. The record supports the 

district court’s conclusion that this issue was not properly raised in opposition to Ms. 

Owens’s motion to dismiss. And the district court correctly observed a party may not 

use Rule 60(b) to raise arguments that could have been raised earlier. See Cashner, 

98 F.3d at 577. The district court’s determination that Mr. Lebahn did not present 

exceptional circumstances justifying Rule 60(b) relief is neither arbitrary nor 

manifestly unreasonable such that we could conclude the district court abused its 

discretion. Weitz, 214 F.3d at 1181. We therefore affirm the district court’s denial of 

relief under Rule 60(b). 

IV. CONCLUSION 

Mr. Lebahn’s untimely Rule 59 motion did not toll his time to appeal, and his 

notice of appeal is therefore timely only with respect to the denial of postjudgment 

relief. We therefore lack jurisdiction to entertain his challenges to the district court’s 

underlying judgment granting Ms. Owens’s motion to dismiss. Mr. Lebahn’s 

argument regarding Ms. Owens’s status as a fiduciary could have been raised in 

opposition to her motion to dismiss, and the district court therefore did not abuse its 

 

Court made substantive mistakes of law.” But Mr. Lebahn’s briefing does not 

identify the specific issues he seeks to challenge or provide meaningful legal analysis 

to demonstrate error by the district court, and he has therefore waived these issues. 

See Harsco Corp. v. Renner, 475 F.3d 1179, 1190 (10th Cir. 2007). 

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discretion in denying Mr. Lebahn’s motion for reconsideration under Rule 60(b). We 

therefore affirm the district court’s denial of Rule 60(b) relief. 

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