United States District Court, D. Montana, Helena Division
E.HADDON United States District Judge
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 50-46-320(4)(b) and (5), MCA,
unconstitutional as applied to this case?
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,  "all of the facts set forth
in the SAC are considered accepted as true and construed in a
light most favorable to the Plaintiff." Plaintiff is
simply wrong in assuming a certification motion is to be
evaluated as if it were governed by Rule 12(b)(6) standards
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 turn 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
Montana Supreme Court has been consistently clear in its
pronouncements of when a request to answer a certified
question is to be entertained. In BNSFRy. 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, ¶ 4, 353 Mont. 173, 219 P.3d 1249" and
that "[i]t is not the job of this Court to determine
questions of fact or to apply the law to the facts presented
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. 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)
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
Montana Supreme Court has left no doubt about its
disagreement with 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.
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 Court.
Plaintiffs Renewed Motion to Certify Quesiton [sic] to the
Montana Supreme Court is DENIED DATED