United States v. Michael Dale

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-3813
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Vanguard Fiduciary Trust Company, *
*
Plaintiff, *
*
v. *
* Appeal from the United States
Dana L. Stuart, * District Court for the
* District of North Dakota.
Defendant-Appellant, *
* [UNPUBLISHED]
and *
*
Elisha N. Kabanuk, *
Defendant-Appellee. *
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Submitted: July 5, 2010
Filed: July 16, 2010
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Before LOKEN, BYE, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Vanguard Fiduciary Trust Company (VFTC) as trustee for the Burlington
Northern Santa Fe Investment and Retirement Plan filed this interpleader action to
determine the rights of Dana Stuart and Elisha Kabanuk, who each claimed to be the
sole beneficiary of deceased employee Lou Ann Thompson’s 401(k) account in the
Plan. See 28 U.S.C. §§ 1335 and 1397; 29 U.S.C. § 1132. Stuart and Kabanuk
answered, and Stuart filed a cross-claim against Kabanuk, seeking rescission of

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1The HONORABLE RALPH R. ERICKSON, United States District Judge for
the District of North Dakota.
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Thompson’s change-of-beneficiary document based on alleged lack of capacity and
undue influence. Stuart appeals pro se the district court’s 1 judgment entered in
accordance with a jury verdict in favor of Kabanuk.
On appeal, Stuart argues that she is the proper beneficiary because the evidence
at trial established Thompson’s lack of capacity when she signed the change-of-
beneficiary document and undue influence by Kabanuk and her mother, Thompson’s
sister. However, Stuart did not file a motion for new trial or judgment as a matter of
law, nor does the record on appeal include a trial transcript. Accordingly, Stuart has
failed to establish any preserved error or plain error in the jury’s verdict. See
Muhammad v. McCarrell, 536 F.3d 934, 938 (8th Cir. 2008); Meroney v. Delta Int’l
Mach. Corp., 18 F.3d 1436, 1437 (8th Cir. 1994). Accordingly, we affirm. See 8th
Cir. R. 47B.
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