DONALD W. MOLLOY, District Judge.
In the Court's Order granting summary judgment to the Defendant on all claims raised in Plaintiff Montana Trucks' Amended Complaint (doc. 7), Plaintiff was ordered to show cause for continuing to litigate the constructive fraud claim related in its Second Amended Complaint (doc. 71) filed after Defendant's Motion for Summary Judgment. (Doc. 81 at 27-28.) The Court ordered the Plaintiff to distinguish the applicability of the statute of limitations to its constructive fraud claim as a matter of law or present a unique issue of material fact as to that claim, or summary judgment would be granted on the constructive fraud claim sua sponte pursuant to Federal Rules of Civil Procedure 56(f)(3).
Plaintiff's brief in response to the Court's Order argues that its claim of constructive fraud relates a negligent misrepresentation claim. The Plaintiff argues that, despite the label "constructive fraud, " Plaintiff's Second Amended Complaint (doc. 71) pleads a claim for negligent misrepresentation and that the claim relates back to the date its original complaint was filed, February 15, 2012. Plaintiff further contends that the original complaint was filed within the three-year statute of limitations for negligent misrepresentation. See Pederson v. Rocky Mt. Bank, 272 P.3d 663, 665 (Mont. 2012) (citing Mont. Code Ann. § 27-2-204(1)) (statute of limitations for negligent misrepresentation is 3 years).
Assuming, arguendo, the Plaintiff did sufficiently plead a claim for negligent misrepresentation, its claim would still be time-barred. To fall within the three-year statute of limitations for negligent misrepresentation, all elements of Plaintiff's claims must have accrued and been discovered no earlier than February 15, 2009. Id. (citing Mont. Code Ann. § 27-2-102). Negligent misrepresentation has six elements:
1. the defendant made a representation as to a past or existing material fact;
2. the representation must have been untrue;
3. regardless of its actual belief, the defendant must have made the representation without any reasonable ground for believing it to be true;
4. the representation must have been made with the intent to induce the plaintiff to rely on it;
5. the plaintiff must have been unaware of the falsity of the representation; it must have acted in reliance upon the truth of the representation, and it must have been justified in relying on the representation; and
6. the plaintiff, as a result of his or her reliance, sustained damage.
Hayes v. AMCO Ins. Co., 2012 WL 5354553, 3-4 (D. Mont. 2012).
Plaintiff's argument that its negligent misrepresentation claim falls within the three-year period is predicated on the Court's dating of the point of discovery for the Plaintiff's fraud claim. The Order granting the Defendant's Motion for Summary Judgement on the Plaintiff's fraud claim noted that the latest possible date on which the Plaintiff's fraud claim accrued was February 1, 2010. ( See Doc. 81 at 5.) Based on facts advanced by the Plaintiff, however, it appears the Plaintiff discovered and accrued a cause of action for negligent misrepresentation by January 30, 2009.
Pursuant to Federal Rule of Civil Procedure 56(c)(3), the Court considered the following materials in the record not ...