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Budd v. Caring for Montanans, Inc.

United States District Court, D. Montana, Butte Division

January 31, 2017

KEVIN BUDD, and KENNETH WALSH on behalf of themselves and all others similarly situated, Plaintiffs,
v.
CARING FOR MONTANANS, INC., BLUE CROSS BLUE SHIELD of MONTANA, INC., HEALTH CARE SERVICES CORPORATION, INC., and JOHN DOES 3 through 20, Defendants.

          ORDER

          SAM E. HADDON, United States District Judge

         Cause CV-09-25-BU-SEH was filed in state court on February 26, 2009, [1]and removed to this Court on April 1, 2009.[2]

         Cause CV-09-62-H-SEH was filed in state court on February 20, 2008, [3] and removed to this Court on October 19, 2009.[4]

         On January 6, 2010, the cases were consolidated for the limited purpose of addressing pretrial and discovery issues common to both.[5]

         On July 12, 2010, both cases were stayed pending resolution of related class action proceedings in state court.[6] The stay was lifted on July 5, 2016.[7]

         Plaintiffs filed a First Amended Consolidated Class Action Complaint[8] in this Court on July 29, 2016. Defendant Caring for Montanans, Inc. ("CFM") answered on August 12, 2016.[9]

         Plaintiffs moved for class certification on August 26, 2016.[10] CFM opposed.[11]

         The Court issued its Opinion and Order denying Plaintiffs' Motion for Class Certification[12] on December 27, 2016.

         Federal Rule of Civil Procedure 23(f) provides:

A court of appeals may permit an appeal from an order granting or denying class-action certification under this rule if a petition for permission to appeal is filed with the circuit clerk within 14 days after the order is entered.

         The time allowed by Rule 23(f) to appeal the Order denying class certification expired on January 10, 2017. No such appeal was sought.

         On January 12, 2017, the Court issued its Order, [13] which, inter alia, vacated the consolidation of cause numbers CV-09-25-BU-SEH and CV-09-62-H-SEH and directed Plaintiffs to "file an amended complaint on or before January 27, 2017, limited to the remaining issues now presented and before the Court in each of the two cases."[14]

         Separate Amended Complaints were filed in CV-09-25-BU-SEH[15] and in CV-09-62-H-SEH[16] on January 27, 2017. Neither complied with the directive in the Court's January 12, 2017, Order that any amended complaint be "limited to the remaining issues now presented and before the Court in each of the two cases."[17]Rather, both Complaints reasserted essentially the same claims on behalf of the same plaintiff classes for which this Court had denied certification on December 27, 2016.

         Plaintiffs in cause CV-09-25-BU-SEH on January 27, 2017, filed Plaintiffs' Unopposed Motion for Reconsolidation and for Entry of Judgment[18] and supporting brief[19], seeking the reconsolidation of CV-09-25-BU-SEH and CV-09-62-H-SEH and entry of judgment in favor of Defendants.

         In its December 27, 2016, Opinion, the Court denied class certification of Plaintiffs' two proposed classes:

(a) CFM state class action members who were ERISA insureds and have breach of fiduciary duty claims against CFM for: (1) failing to provide notice regarding the settlement in [Diaz v. BCBSMT[20]]; and (2) proposing to give ERISA beneficiaries' funds to Montana Healthcare Foundation.[21]
(b) CFM insureds who, submitted claims on or after March 1, 2001, to the present (or on whose behalf claims were submitted) to CFM for medical expenses arising from the automobile/premises accidents where CFM failed to pay the claim due to the possible availability of automobile or premises liability insurance, but where CFM did not apply the denial codes used to define the CFM state class action.[22]

         In its ruling, the Court held:

         1. Plaintiffs' lacked standing to assert claims arising from: (a) CFM's failure to tell Plaintiffs of Diaz v. BCBSMT;[23]and (b) CFM's planned transfer ...


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