                                                                              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                            NOT FOR PUBLICATION                               MAR 13 2014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.




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