The Depot, Inc. et al v. Caring for Montanans, Inc. et al

Filing 38

ORDER: Defendants shall file supplementary briefs in support of their Motions to Dismiss 8 and 13 not to exceed 2,000 words, on or before January 4, 2016. Plaintiffs shall file a response brief, not to exceed 2,000 words, within 14 days of the filing of Defendants' supplementary brief. No reply brief may be filed. Signed by Judge Dana L. Christensen on 12/21/2016. (ASG)

FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

DEC 2 1 2016
Clerk, U.S. District Court
District Of Montana
Missoula

CV 16-74-M-DLC

THE DEPOT, INC., a Montana
Corporation, UNION CLUB BAR,
INC., a Montana Corporation, and
TRAIL HEAD, INC., a Montana
Corporation, on behalf of themselves
and all those similarly situated,

ORDER

Plaintiffs,
vs.
CARING FOR MONTANANS, INC.,
F!K/A BLUE CROSS AND BLUE
SHIELD OF MONTANA, INC.,
HEALTH CARE SERVICE CORP., and
JOHN DOES I-X,
Defendants.
Currently before the Court is the joint motion to dismiss of Defendants
Caring for Montanans, Inc. ("CFM") and Health Care Service Corporation
("HCSC"). In considering this motion, the Court has determined that additional
briefing from both parties is necessary.
Plaintiffs have brought a civil action against Defendants under BRISA §
502(a)(2). Plaintiffs' claim may proceed under this theory only if they have

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plausibly alleged that Defendants are fiduciaries. Plaintiffs argue that Defendants
are fiduciaries for two reasons: (1) Defendants "exercise[d] any authority or
control respecting management or disposition of [plan] assets"; and (2)
Defendants "exercise[d] discretionary authority or discretionary control regarding
management of [the] plan[.]" 29 U.S.C. § 1002(21)(A). The parties have
thoroughly and adequately briefed the Court regarding the first issue, involving
Defendants' conduct with respect to plan assets.
However, the parties have not sufficiently addressed whether Defendants
"exercise[d] discretionary authority or discretionary control regarding
management of [the] plan." Id. Defendants assert that this theory is inapplicable
but present no legal argument on the issue. The Complaint contains a legal
conclusion stating that the theory applies, and Plaintiffs argue in their response
brief-in a two-sentence footnote-that it applies. Neither party presents any
legal authority regarding the applicability or inapplicability of the theory to the
facts alleged.
Although the Defendant, as the moving party, bears the burden of showing
dismissal is warranted, the Plaintiff bears its own burden of alleging facts rather
than legal conclusions. Neither party has yet met its burden, and the Court now
orders the parties to file supplementary briefings.

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Accordingly, IT IS ORDERED that Defendants shall file supplementary
briefs in support of their Motions to Dismiss (Docs. 8, 13), not to exceed 2,000
words, on or before January 4, 2016. Plaintiffs shall file a response brief, not to
exceed 2,000 words, within 14 days of the filing of Defendants' supplementary
brief. No reply brief may be filed.

?t

DATED this 1:l_ day of December, 2016.

Dana L. Christensen, Chief Judge
United States District Court

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