Carlson v. Charter Communications
ORDER denying 48 Motion to Certify Signed by Judge Sam E Haddon on 7/14/2017. (DED)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
JUL 14 2017
Clerk, U.S. District Court
District Of Montana
No. CV 16-86-H-SEH
On May 24, 2017, Plaintiff filed a Motion to Certify Question to the
Montana Supreme Court, the text of which recites:
Assuming the facts in Plaintiffs Second Amended
Complaint are accepted as true, are Sections 50-46320(4)(b) and (5), MCA, unconstitutional as applied to
this case? 1
Plaintiff argues, in support of the certification request, that since Defendant
has filed a Fed. R. Civ. P. 12(b)(6) partial motion to dismiss, 2 "all of the facts set
Doc. 48 at I.
See Doc. 50.
forth in the SAC are considered accepted as true and construed in a light most
favorable to the Plaintiff."3 Plaintiff is simply wrong in assuming a certification
motion is to be evaluated as ifit were governed by Rule 12(b)(6) standards and
A motion for certification under Mont. R. App. P. 15(3) is a standalone
proceeding grounded in a particular rule of the Montana Supreme Court. It has no
counterpart in the Federal Rules of Civil Procedure and is fundamentally a request
directed to this Court asking this Court, and in tum the Montana Supreme Court,
to undertake a particular form of affirmative action. By no stretch can such a
request be considered the equivalent to a motion to dismiss for failure to state a
claim. The Montana Supreme Court has unequivocally so stated.
The Montana Supreme Court has been consistently clear in its
pronouncements of when a request to answer a certified question is to be
entertained. In BNSF Ry. Co. v. Feit, the Court stated its review under Mont. R.
App. P. 15(3) '"is purely an interpretation of the law as applied to the agreed facts
underlying the action.' State Farm Fire & Cas. Co. v. Bush Hog, LLC, 2009 MT
349, ii 4, 353 Mont. 173, 219 P .3d 1249" and that "[i]t is not the job of this Court
Doc. 49 at 2.
to determine questions of fact or to apply the law to the facts presented to us." 4
In Brady v. PPL Mont., LLC, the Court discussed at some length its
rejection of any willingness to render "precedential opinions" on substantial and
significant issues "in a vacuum" and without a record of agreed facts relevant to
the issues. 5 The Court in Brady plainly rejected the very concept proposed by
Plaintiff here, namely that the Montana Supreme Court "can and must accept those
facts" alleged in the complaint as true "because this is a 'Rule 12(b) motion. '" 6
The approach proposed by Plaintiffs motion would not only do violence to
the Montana Supreme Court's appropriately self-imposed and clearly stated
limitation that the Court considers itself"bound by the 'relevant facts' included in
the Certification Order," which are to be "agreed facts," but would also seem
contrary to the proposition that the Montana Supreme Court, in addressing a
certified question, is not to be expected to "determine questions of fact or to apply
the law to the facts presented. " 7
The Montana Supreme Court has left no doubt about its disagreement with
281 P.3d 225, 227 (Mont. 2012); see also Frontline Processing Corp. v. Am. Econ. Ins.
Co., 149 P.3d 906, 908 (Mont. 2006); Rich v. State Farm Mut. Auto. Ins. Co., 66 P.3d 274, 275
77 P.3d 523, 524 (Mont. 2003).
Feit, 281 P.3d at 227.
the proposition that facts alleged in a complaint presented in support of or in
response to a Rule 12(b) motion "can and must be accepted as true" under a Rule
15(3) motion for certification.
This Court cannot and will not undertake any effort to engage in any
analysis or assessment that does violence to the Montana Supreme Court's
pronouncement on this important and unique component of Montana's system of
dispute resolution. The motion for certification is not appropriate for this Court's
consideration or for submission of the requested question to the Montana Supreme
Plaintiffs Renewed Motion to Certify Quesiton [sic] to the Montana
Supreme Court8 is DENIED~
United States District Judge
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