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Moyle v. Liberty Mutual Retirement Benefit Plan

United States District Court, S.D. California

April 11, 2017

GEOFFREY MOYLE, an individual; PAULINE ARWOOD, an individual; THOMAS ROLLASON, an individual; and JEANNIE SANDERS, an individual, on behalf of themselves, Plaintiff,
v.
LIBERTY MUTUAL RETIREMENT BENEFIT PLAN; LIBERTY MUTUAL RETIREMENT PLAN RETIREMENT BOARD; LIBERTY MUTUAL INSURANCE GROUP, INC., a Massachusetts company; LIBERTY MUTUAL INSURANCE COMPANY, a Massachusetts company, Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT [DKT. NO. 296.]

          HON. GONZALO P. CURIEL United States District Judge.

         On October 28, 2016, Defendants filed a supplemental brief in support of their motion for summary judgment following remand. (Dkt. No. 296.) On November 10, 2016, Plaintiffs filed a supplemental brief in opposition to Defendants' motion for summary judgment following remand. (Dkt. No. 298.) On November 18, 2016, Defendants filed a reply brief. (Dkt. No. 299.) A hearing was held on December 16, 2016. (Dkt. No. 301.) At the hearing, the Court noted additional briefing was needed on certain issues, and on December 19, 2016, the Court issued an order directing the parties to address three issues that were not fully briefed in their supplemental briefs.[1](Dkt. No. 302.) On January 6, 2017, Defendants filed a supplemental brief in response to the Court's order. (Dkt. No. 304.) Plaintiffs filed a response and Defendants filed a reply. (Dkt. Nos. 305, 307.) After a review of all the briefs, supporting documentation, hearing oral argument, and the applicable law, the Court GRANTS in part and DENIES in part Defendants' supplemental motion for summary judgment following remand.

         Procedural Background

         Prior to the filing of the instant case, on March 14, 2005, Plaintiff Geoffrey Moyle (“Moyle”) filed a complaint in this Court against Golden Eagle Insurance Corporation (“Golden Eagle”) and Liberty Mutual Insurance Company (“Liberty Mutual”).[2] (Case No. 05cv507-DMS(WMC), Dkt. No. 1). On August 23, 2005, Moyle filed a first amended complaint adding Defendant Liberty Mutual Retirement Benefit Plan (“Plan”). (Id., Dkt. No. 12.) The first amended complaint sought causes of action for determination of his future rights to benefits under the plan pursuant to 29 U.S.C. § 1132(a)(1)(B), and breach of fiduciary duty pursuant to 29 U.S.C. § 1132(a)(3). (Id.) On November 14, 2005, District Judge Dana Sabraw granted Defendants' motion to dismiss for failure to exhaust administrative remedies. (Id., Dkt. No. 32.) The court also dismissed with prejudice the § 1132(a)(3) claim pursuant to Varity Corp. v. Howe, 516 U.S. 489 (1996), stating that “§ 1132(a)(3) is a ‘catchall provision' that authorizes lawsuits for equitable relief for breach of fiduciary duty and other injuries for “violation that [1132] does not elsewhere adequately remedy.” (Id. at 9.) Plaintiff appealed and on August 23, 2007, the Ninth Circuit affirmed the district court's dismissal requiring Plaintiff to exhaust and the dismissal of § 1132(a)(3) claim based on the rule in Varity concluding that Moyle “has no claim under 29 U.S.C. § 1132(a)(3) because he has adequate relief under 29 U.S.C. § 1132(a)(1). Moyle v. Golden Eagle Ins. Corp., 239 Fed. App'x 362 (9th Cir. 2007).

         On January 26, 2008, Moyle filed a claim with Liberty Mutual. (Administrative Record (“AR”) 783-86.) On July 18, 2008, Plaintiff Thomas Rollason (“Rollason”) filed a claim. (AR 639-43.) On August 21, 2008, Plaintiff Pauline Arwood (“Arwood”) filed a claim. (AR 1016-20.) Lastly, on December 4, 2008, Plaintiff Jeannie Sanders (“Sanders”) filed her claim. (AR 1511-16.)

         On April 23, 2008, Moyle's claim and subsequently Rollason, Arwood and Sanders' claims for benefits were initially denied by John R. St. Martin, Manager of Pension and Savings, Benefits at Liberty Mutual. (AR 712-718 (“Moyle”); 590-96 (“Rollason”); 991-97 (“Arwood”); 1497-1503 (“Sanders”).)

         On June 20, 2008, Plaintiffs sought review of the initial decision and all four claims were consolidated for purposes of the administrative appeal. (AR 426.) On October 23, 2009, Plaintiffs' appeals were denied by Helen Sayles, Senior Vice President of Human Resources & Administration, on behalf of the Retirement Board. (AR 4365-4414.)

         After having exhausted administrative remedies, on October 19, 2010, Plaintiffs Moyle, Arwood, Rollason, and Sanders filed the instant class action complaint against Defendants Liberty Mutual Retirement Benefit Plan (“Plan”); Liberty Mutual Retirement Benefit Plan Retirement Board (“Board”); Liberty Mutual Insurance Group, Inc. (“LMGI”); and Liberty Mutual Insurance Company (“Liberty Mutual”). (Dkt. No. 1.) On October 21, 2010, Plaintiffs filed a first amended complaint alleging causes of action for determination of his future rights to benefits under the plan pursuant to 29 U.S.C. § 1132(a)(1)(B), promissory estoppel, and denial of claim rights afforded under 29 C.F.R. § 2560.503-1(h)(2)(i). (Dkt. No. 3.) On April 25, 2011, District Judge Dana Sabraw denied Defendants' motion to dismiss the second and third claims; granted in part motion to dismiss improperly named Defendants; denied Defendants' motion to dismiss the first claim as to Plaintiff Moyle and granted Defendants' motion to strike demand for trial by jury. (Dkt. No. 18.) On September 14, 2011, the Court granted Plaintiffs' motion for leave to file a second amended complaint. (Dkt. No. 41.) On September 20, 2011, Plaintiffs filed a second amended complaint which added a claim for equitable relief under 29 U.S.C. § 1132(a)(3). (Dkt. No. 47.)

         After briefing by the parties on Plaintiffs' motion for class certification, on April 10, 2012, District Judge Sabraw certified the class as to the first, second, and fourth causes of action. (Dkt. No. 113 at 19.) On April 24, 2012, Defendants filed a petition for permission to appeal the Court's order granting class certification to the Ninth Circuit. (Dkt. No. 120.) In the meantime, the Court denied Defendants' motion for reconsideration and granted their motion for stay pending appeal. (Dkt. No. 126.) On July 11, 2012, the Ninth Circuit denied Defendants' petition for permission to appeal. (Dkt. No. 128.)

         On October 12, 2012, the case was transferred to the undersigned judge. (Dkt. No. 174.) On October 17, 2012, Plaintiffs filed a third amended complaint against Defendants Liberty Mutual Retirement Benefit Plan (“Plan”); Liberty Mutual Retirement Benefit Plan Retirement Board (“Board”), the Plan administrator; Liberty Mutual Insurance Group, Inc. (“LMGI”), the Plan sponsor; and Liberty Mutual Insurance Company (“Liberty Mutual”), the entity that purchased Old Golden Eagle, and established Golden Eagle, a subsidiary of LMGI. (Dkt. No. 178.) The operative third amended complaint alleges four causes of action: payment of benefits under the Plan pursuant to 29 U.S.C. § 1132(a)(1)(B); equitable relief under 29 U.S.C. § 1132(a)(3); violation of 29 C.F.R. § 2560.503-1(h)(2)(i); and violation of 29 C.F.R. § 2520.102-3(1) and 29 C.F.R. § 2520.102-2(a).

         On January 3, 2013, Defendants filed a motion for summary judgment on all four causes of action while Plaintiffs filed a motion for partial summary judgment on the second and fourth causes of action and on certain of Defendants' affirmative defenses. (Dkt. Nos. 212, 213.) On July 1, 2013, the Court granted Defendants' motion for summary judgment on all four causes of action in the third amended complaint, and denied Plaintiffs' motion for summary judgment. (Dkt. No. 252.) Plaintiffs appealed the Court's ruling on the first, second and fourth causes of action while Defendants cross-appealed that the suit was time-barred and that class certification was not proper. Moyle v. Liberty Mutual Retirement Benefit Plan, 823 F.3d 948, 952 (9th Cir. 2016). On May 20, 2016, the Ninth Circuit affirmed the district court's ruling on summary judgment on the first and fourth causes of action and reversed the district court's ruling on the second cause of action for equitable relief under 29 U.S.C. § 1132(a)(3). Id. The Ninth Circuit also found that class certification was proper. Id. The court concluded there was a factual dispute whether “Liberty Mutual breached its fiduciary duty by failing to inform Golden Eagle employees that past service credit for the purpose of benefit accrual did not include the period prior to October 1, 1997, when they were first employed by Golden Eagle.” Id. at 962. The Ninth Circuit remanded “for determinations of fact and equitable relief in the form of reformation and surcharge.” Id. at 965. The Ninth Circuit also declined to consider “Liberty Mutual's argument that the statute of repose in 29 U.S.C. § 1113 acts to bar some of Appellants' claims under 29 U.S.C. § 1132(a)(3). The district court may consider such arguments on remand.” Id. at 959 n. 5.

         Factual Background

         The Court recites the facts from its prior order on summary judgment and from the Ninth Circuit's opinion. Plaintiffs Moyle, Arwood, Rollason, and Sanders are four former employees of Golden Eagle Insurance Company (“Old Golden Eagle” or “OGE”). On January 31, 1997, the Superior Court of San Diego County placed OGE into conservatorship proceedings under the supervision of the California Insurance Commissioner. Liberty Mutual took an interest in acquiring OGE and was in a bidding war with American International Group, Inc. (“AIG”) for the acquisition of OGE. In order to increase its chances to win the bidding war, Liberty Mutual submitted an enhanced bid which included improved employee benefits such as a retirement plan, which had not been offered by OGE. The increased employee benefits were used to retain OGE employees and to increase the likelihood of court approval of its bid.

         On May 29, 1997, the Conservation Court held an evidentiary hearing to evaluate Liberty Mutual's and AIG's competing bids. One of Liberty Mutual's exhibit expressly stated that the value that it added was to “increase employee benefits (credit for prior year's of service and participation in the benefits plan).” Liberty Mutual also told the Conservation Court that OGE employees would have the rights that Liberty Mutual employees had with “X years of service.” This representation was later repeatedly made to OGE employees.

         On May 30, 1997, the Conservation Court approved the sale and transfer of certain OGE assets and liabilities to Liberty Mutual. The approval was memorialized in a Rehabilitation Agreement drafted by Liberty Mutual on June 18, 1997. (AR 3013.) Article 5.1(c) of the Rehabilitation Agreement states:

As to the employees of [OGE] who become employees of New Eagle or another Subsidiary of LMIC by reason of the transactions contemplated by this Agreement . . . [s]uch employees shall be provided benefits which are at least comparable to those offered by [OGE] and shall be credited for all prior years of service with [OGE] . . . for purposes of eligibility, vesting and early retirement subsidies under the LMIC Retirement Benefit Plan . . . provided, that such period of service with [OGE] will not be credited for purposes of benefits accruals under the LMIC Thrift Incentive Plan and Retirement Benefit Plan . . . .

         The Rehabilitation Agreement was never provided to OGE employees and the Conservator was not required to send notification of the agreement to OGE employees. The Rehabilitation Agreement is the only document that expressly states that past service credit with OGE would not be credited for purposes of benefits accrual. This language does not appear elsewhere during the transition period or in any communications with OGE employees.

         As former employees of OGE, Plaintiffs had the opportunity to participate in a 401(k) Plan and profit-sharing plan. OGE did not offer a traditional defined benefit pension plan to its employees. OGE did not contribute any assets to the Plan at issue in this case and Plaintiffs did not make any contributions to the Plan.

         During August 1997, Liberty Mutual hosted a series of benefits enrollment meetings so that OGE employees could obtain information about the transition. The presenters used a “Facilitator Guide” developed by Liberty Mutual as a script to convey the terms and conditions of employee benefits. The Facilitator Guide did not mention that past service credit with OGE would not be credited for benefits accrual. OGE employees, including Plaintiffs, testified that after attending the meetings, it was their understanding that past service credit with OGE would apply to the retirement plan and that is why everybody stayed with the company. When specifically asked about prior years of service at these meetings, Plaintiffs were told past years of service with OGE would count. During the enrollment period, the operative 1987 Plan and 1996 Summary Plan Descriptions (“SPD”) were available to OGE employees, but the 1987 Plan and the 1996 SPD did not address past service credit.

         On October 1, 1997, pursuant to the Rehabilitation Agreement, Liberty Mutual purchased certain assets of OGE and formed and incorporated a new entity, Golden Eagle Insurance Corporation, (“Golden Eagle”), as a subsidiary of Liberty Mutual.

         The Plan and the SPD were not amended to address past service credit until 2001 when the Plan and the 2002 SPD specifically addressed OGE employees stating that past service credit for OGE employees would be “credited for eligibility, vesting, early retirement, and spouse's benefits . . . .” In 2009, the word “solely” was added.

         Subsequently, Liberty Mutual Retirement Benefit Plan Retirement Board, the Retirement Plan's administrator, denied the claims of a dozen former OGE employees who sought past service credit, including the named plaintiffs in this case. Liberty Mutual explained that it had “informed former Golden Eagle employees about when past service credit applied and therefore, former Golden Eagle employees should have known when past service credit did not apply.” Moyle, 823 F.3d at 955.

         On October 19, 2010, Plaintiffs filed the class action complaint in this Court. (Dkt. No. 1.) Upon remand by the Ninth Circuit, Defendants move for summary judgment arguing that the remaining cause of action for breach of fiduciary duty under 29 U.S.C. § 1132(a)(3) is barred by the statute of repose and statute of limitations under 29 U.S.C. § 1113. They also argue that the equitable relief of reformation and surcharge under 29 U.S.C. § 1132(a)(3) are not available as remedies to Plaintiffs. Plaintiffs oppose arguing that Defendants waived the statute of limitation defense, that the breach of fiduciary claim is timely under the fraud or concealment exception under 29 U.S.C. § 1113, and as to Moyle, he is entitled to equitable tolling. They further argue that they have provided sufficient facts to entitle them to equitable relief in the form of reformation and surcharge.

         Discussion

         A. Legal Standard on Motion for Summary Judgment

         Federal Rule of Civil Procedure (“Rule”) 56 empowers the Court to enter summary judgment on factually unsupported claims or defenses, and thereby “secure the just, speedy and inexpensive determination of every action.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 327 (1986). Summary judgment is appropriate if the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). A fact is material when it affects the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         The moving party bears the initial burden of demonstrating the absence of any genuine issues of material fact. Celotex Corp., 477 U.S. at 323. The moving party can satisfy this burden by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element of his or her claim on which that party will bear the burden of proof at trial. Id. at 322-23. If the moving party fails to bear the initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-60 (1970).

         Once the moving party has satisfied this burden, the nonmoving party cannot rest on the mere allegations or denials of his pleading, but must “go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file' designate ‘specific facts showing that there is a genuine issue for trial.'” Celotex, 477 U.S. at 324. If the non-moving party fails to make a sufficient showing of an element of its case, the moving party is entitled to judgment as a matter of law. Id. at 325. “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.'” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The court must view all inferences from the evidence in favor of the nonmoving party. Id.; Fontana v. Haskin, 262 F.3d 871, 876 (9th Cir. 2001) (“the court must “view[] the evidence in the light most favorable to the nonmoving party.”) The Court does not engage in credibility determinations, weighing of evidence, or drawing of legitimate inferences from the facts; these functions are for the trier of fact. Anderson, 477 U.S. at 255.

         B. Waiver of Statute of Limitations Affirmative Defense

         In their original opposition to Defendants' motion for summary judgment, and in their recent supplemental opposition in response to the Court's order, Plaintiffs argue that Defendants waived their 29 U.S.C. § 1113 statute of limitations affirmative defense by failing to raise it until the motion for summary judgment. (Dkt. No. 233 at 40; Dkt. No. 305 at 14.) Defendants argue that they did not waive the affirmative defense of statute of limitations because it was raised as to the contractual claim underlying breach of fiduciary duty.

         Despite Rule 8(c)'s[3] requirement that an affirmative defense be raised in the answer, the Ninth Circuit has liberalized its requirement such that a defendant may raise an affirmative defense for the first time in a motion for summary judgment as long as the plaintiff is not prejudiced. Rivera v. Anaya, 726 F.2d 564, 566 (9th Cir. 1984) (defendant did not waive defense of statute of limitations by failing to include it in his initial pleading because plaintiff had not claimed any prejudice); see also Camarillo v. McCarthy, 998 F.2d 638, (9th Cir. 1993) (defense of qualified immunity not waived even though it was not raised in the answer, and plaintiff had not claimed prejudice).

         The first two counts in the first amended complaint, filed on October 21, 2010, alleged causes of action for determination of terms of plan and clarification of rights to future benefits under 29 U.S.C. § 1132(a)(1)(B) and promissory estoppel. (Dkt. No. 3, FAC.) The promissory estoppel claim was based on promises by Defendants that if Plaintiffs accepted employment with Defendants, Plaintiffs would be credited for time employed at OGE for purposes of benefits under the Plan. (Id., FAC ¶¶ 78-82.) In their answer, Defendants' fifteenth affirmative defense alleged, “Plaintiffs' claims for benefits under 29 U.S.C. § 1132(a)(1)(B) and/or estoppel are barred by the statute of limitations and the doctrine of laches.” (Dkt. No. 11 at 11.) Over a year later, on September 20, 2011, Plaintiffs obtained leave of court and filed a second amended complaint (“SAC”). (Dkt. No. 47.) The first count remained the same as in the FAC but the second count now alleged a cause of action under 29 U.S.C. § 1132(a)(3) instead of promissory estoppel. (Id., SAC ¶¶ 77-84.) Defendants' answer to the SAC asserted the same fifteenth affirmative defense of statute of limitations as they asserted in their answer to the FAC. (Dkt. No. 59 at 13.)

         On October 17, 2012, a third amended complaint was filed due to clerical errors. (Dkt. No. 178.) Based on a joint stipulation to correct clerical errors within the second amended complaint, Plaintiffs filed a third amended complaint and Defendants' answer to the second amended complaint was deemed to be the answer to the third amended complaint. (Dkt. No. 170.)

         The issue is whether Plaintiffs are prejudiced by Defendants assertion of the statute of limitation's defense in their motion for summary judgment. Plaintiffs appear to argue that they were prejudiced because they did not receive any statute of limitations discovery from Defendants during discovery and they believed that Defendants would assert the one year statute of limitations asserted in the Plan as asserted in prior litigation and in the administrative process. Plaintiffs' arguments are not persuasive.

         When Plaintiffs filed a second amended complaint alleging the breach of fiduciary duty under 29 U.S.C. § 1132(a)(3), they merely altered the legal cause of action from promissory estoppel to equitable relief. (Dkt. No. 47.) However, the underlying facts generally remained the same. (Compare Dkt. No. 3, FAC ¶¶ 78-82 with Dkt. No. 47, SAC ¶¶ 77-84.) In fact, paragraphs 78, 80 and part of 81 of the FAC 1 are nearly identical to paragraphs 78, 81, 82 of the SAC. The promissory estoppel and 2 breach of fiduciary causes of action are based on Defendants' representations/promises 3 that if Plaintiffs accepted employment with Liberty Mutual, their time of employment 4 with Old Golden Eagle would be credited for purposes of benefits under the Plan. Plaintiffs relied on Defendants' representations/promises by accepting employment but 6 Defendants refused to grant credit to Plaintiffs for their time employed at Old Golden 7 Eagle. While the label of the cause of action changed, the underlying facts did not and 8 Plaintiffs had notice that Defendants would be asserting the affirmative defense of 9 statute of limitations. Thus, Plaintiffs were not prejudiced. The Court concludes that 10 the statute of limitations affirmative defense was not waived by Defendants.

         C. 29 U.S.C. § 1113

         Defendants argue that the claim for breach of fiduciary duty is barred by the 13 statute of repose and the statute of limitations under 29 U.S.C. § 1113. Plaintiffs 14 respond that their claim is not governed by the statute of repose because their claim 15 falls under the “fraud or concealment” exception that applies to both the statute of 16 limitations and statue of repose under 29 U.S.C. § 1113, and is therefore, timely.

         ERISA's statute of repose and statute of limitations provide:

No action may be commenced under this subchapter with respect to a fiduciary's breach of any responsibility, duty, or obligation under this 19 part, or with respect to a violation of this part, after the earlier of--
(1) six years after (A) the date of the last action which constituted a part of the breach or violation, or (B) in the case of an omission the 21 latest date on which the fiduciary could have cured the breach or violation, or
(2) three years after the earliest date on which the plaintiff had actual 23 knowledge of the breach or violation; 24 except that in the case of fraud or concealment, such action may be commenced not later than six years after the date of discovery of such 25 breach or violation.

26 29 U.S.C. § 1113. 29 U.S.C. § 1113(1) is considered the statute of repose while 29 27 U.S.C. § 1113(2) is considered the statute of limitations. See Landwehr v. DuPree, 7228 F.3d 726, 733 (9th Cir. 1995) (distinguishing between three year statute of limitations with six year “interest in repose”); Bruno v. Time Warner Pension Plan, 534 F. App'x 654, 655 (9th Cir. 2013) (noting repose period to be provided in § 1113(1).) While statutes of limitations and statutes of repose both limit the “temporal extent or duration of liability for tortious acts” and can bar a plaintiff's case, the “time periods are measured from different points, and the statutes seek to attain different purposes and objectives.” CTS Corp. v. Waldburger, 134 S.Ct. 2175, 2182 (2014). Ordinarily, a statute of limitations creates “a time limit for suing in a civil case, based on the date when the claim accrued” while a statute of repose “puts an outer limit on the right to bring a civil action. That limit is measured not from the date on which the claim accrues but instead from the date of the last culpable act or omission of the defendant.” Id. “The statute of repose limit is ‘not related to the accrual of any cause of action; the injury need not have occurred, much less have been discovered.'” Id. (citation omitted). This reflects a legislative decision that there should be a specific time when a defendant should be free from liability. Id. at 2183. Therefore, a statute of repose is not subject to equitable tolling. Id.

         1. Fraud or Concealment Exception

         Defendants contend that the breach of fiduciary claim is barred by the six year statute of repose under § 1113(1), three year statute of limitations under § 1113(2) and that the “fraud or concealment” exception of § 1113 does not apply because the facts in the case do not support an allegation of “fraud or concealment.” Plaintiffs respond first by arguing that the “fraud or concealment” tolling exception applies to their claim, and alternatively, even if the “fraud or concealment” exception does not apply, their claims are timely because the breach was not completed until Liberty Mutual issued its final denial in 2009, the latest date Liberty Mutual could have cured the violation or breach.[4]

         Ziegler presented a two step analysis in analyzing the statute of limitation under 29 U.S.C. § 1113. The two step analysis asks 1) “when did the alleged ‘breach or violation' occur” and then “when did [the defendant] have ‘actual knowledge' of the breach or violation?” Ziegler v. Connecticut Gen. Life Ins. Co., 916 F.2d 548, 550 (1990) (analyzing the three year statute of limitations under § 1113(2)). On the first step, to determine when the alleged breach or violation occurred, “we must first isolate and define the underlying violation upon which . . . [plaintiff's] claim is founded.” Id. at 550-51. On this first step, the court need not consider when the plaintiffs suffered actual harm except it may shed light on the second question of when a plaintiff gains “actual knowledge” injured. Id. at 551-52. In Ziegler, the breach occurred upon the contract's creation, not at the time of termination or at the time of injury. Id. at 551.

         Defendants argue that the “last action which constituted a part of the breach or violation” was when Plaintiffs accepted employment with New Golden Eagle on October 1, 1997 which was when they could have avoided the detriment of giving up the opportunity to seek other employment. Plaintiffs do not address this argument. ...


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