FILED
NOT FOR PUBLICATION MAR 13 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL PETERSON, individually and No. 12-35505
as the personal representative for the estate
of Joshua Peterson, D.C. No. 9:11-CV-00081-DWM-
JCL
Plaintiff - Appellant,
v. MEMORANDUM*
TIME INSURANCE COMPANY,
ASSURANT HEALTH, JOHN ALDEN
LIFE INSURANCE COMPANY, AETNA
LIFE INSURANCE COMPANY, JOHN
DOES, 1,2,3,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Submitted March 5, 2014**
Portland, Oregon
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: TROTT and W. FLETCHER, Circuit Judges, and BLOCK, Senior District
Judge.***
1. The district court correctly held that Peterson’s claims against Aetna
Life Insurance Company were preempted by ERISA. See Qualls v. Blue Cross of
Cal., Inc., 22 F.3d 839, 843 n.4 (9th Cir. 1994).
2. With respect to Time Insurance Company, Assurant Health and John
Alden Life Insurance Company (collectively, “Assurant”), the district court
correctly held that Peterson’s claims for negligent and intentional infliction of
emotional distress were barred by Mont. Code Ann. § 33-18-242(3). See
Brewington v. Employers Fire Ins. Co., 992 P.2d 237, 239-41 (Mont. 1999).
3. The district court correctly held that Peterson failed to plead his
claims for constructive fraud/breach of fiduciary duty with the particularity
required by Fed. R. Civ. P. 9(b). Peterson failed to allege any specific false
statements made by Assurant. See Town of Geraldine v. Montana Mun. Ins. Auth.,
198 P.3d 796, 801 (Mont. 2008) (requiring plaintiff to plead, inter alia, false
representations); Vess v. Ciba-Geigy Corp., 317 F.3d 1097, 1106 (9th Cir. 2003)
(“The plaintiff must set forth what is false or misleading about a statement, and
***
The Honorable Frederic Block, Senior United States District Judge for
the Eastern District of New York, sitting by designation.
2
why it is false.” (citation and internal quotation marks omitted)). We deny
Peterson’s request for leave to amend because he has failed to explain what
specific false statements he would allege by way of amendment.
4. The district court correctly held that Montana’s Unfair Trade Practices
Act (“UTPA”) does not create a private right of action for violations of subsections
(2), (3), (7) or (14) of Mont. Code Ann. § 33-18-201. See Mont. Code Ann. § 33-
18-242(1).
5. The district court correctly held that Assurant satisfied its initial
burden of showing that it complied with the insurance contract and the actionable
subsections of UTPA, and that Peterson failed to offer evidence of noncompliance.
See Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
6. Because the district court’s substantive holdings were all correct, we
do not address Peterson’s argument that the magistrate judge should have been
recused. We by no means imply that the magistrate judge showed any actual or
apparent bias against Peterson or in favor of insurance companies.
AFFIRMED.
3