United States District Court, D. Montana, Billings Division
LAZY E L RANCH, INC.; FOOTHILLS COMPANY; GEORGE BENEDICT; REBECCA SPENCER; AL SPENCER; ROBERT TIMMERMAN; DOROTHY TIMMERMAN; CATHERINE TOBIN; RICHARD SHOLLEY; THOMAS MORROW; ROBERT CIRI; ANN CIRI, Plaintiffs,
NORTHWESTERN CORPORATION; NORTHWESTERN ENERGY; NORTHWESTERN ENERGY INC.; NORTHWESTERN ENERGY, LLC; JOHN DOES 1-10; JOHN DOE CORPORATIONS A-Z, or other business entities, subsidiaries and affiliates, Defendants.
FINDINGS AND RECOMMENDATION OF U.S. MAGISTRATE
TIMOTHY J. CAVAN UNITED STATES MAGISTRATE JUDGE.
Lazy E L Ranch, Inc., Foothills Company, George Benedict,
Rebecca & Al Spencer, Robert & Dorothy Timmerman,
Catherine Tobin & Richard Sholley, Thomas Morrow, and
Robert & Ann Ciri (“Plaintiffs”) bring this
action against Defendants Northwestern Corporation,
Northwestern Energy, Northwestern Energy Inc., and
Northwestern Energy, LLC (“Northwestern”) for
damage to their properties resulting from a fire known as the
East Rosebud Fire. (Doc. 6.) Plaintiffs' complaint
alleges three counts against Northwestern: (Count I) strict
liability; (Count II) negligence; and (Count III) negligence
per se. (Id.)
before the Court is Northwestern's Motion to Dismiss
Count I, which has been referred to the undersigned under 28
U.S.C. § 636(b)(1)(B). (Doc. 3.) The motion is fully
briefed and ripe for the Court's review. (Docs. 4, 9,
considered the parties' submissions, the Court
RECOMMENDS Northwestern's Motion to
Dismiss Count I be GRANTED.
Plaintiffs are the owners of rural properties located in
Carbon County, Montana. (Doc. 6 at ¶ 4.) Northwestern
owns, operates, controls and maintains electrical power
equipment, poles, and lines in the vicinity of
Plaintiffs' property. (Id. at ¶ 3.) On or
about August 28, 2012, a fire ignited in Northwestern's
utility right-of-way on or near the property of Plaintiffs
Catherine Tobin and Richard Sholley. (Id. at ¶
5.) The fire is referred to as the East Rosebud Fire.
(Id.) Plaintiffs contend they suffered property
damage and diminution of the value of their properties as a
result of the fire. (Id. at ¶ 7.)
allege the East Rosebud Fire was caused by “a live
electrical malfunction from equipment owned, controlled,
maintained and operated by [Northwestern].”
(Id. at ¶ 6.) Plaintiffs assert Northwestern
breached its duty to properly “control, maintain,
operate, install and replace its electrical lines, poles and
equipment, ” which directly caused the fire.
(Id. at ¶ 13.) Plaintiffs further allege in
Count I of their complaint that Northwestern is strictly
liable under Mont. Code Ann. §§ 50-63-103 and
50-63-104 as the responsible party. (Id. at ¶
under Rule 12(b)(6) is proper when the complaint either (1)
lacks a cognizable legal theory or (2) fails to allege
sufficient facts to support a cognizable legal theory.”
Zixiang Li v. Kerry, 710 F.3d 995, 999 (9th Cir.
2013) (quoting Mendiondo v. Centinela Hosp. Med.
Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008)). The
Court's standard of review under Rule 12(b)(6) is
informed by Rule 8(a)(2), which requires that a pleading
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Ashcroft v. Iqbal, 556 U.S. 662, 677-678 (2009)
(quoting Fed. R. Civ. P 8(a)).
survive a motion to dismiss under Rule 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Iqbal, 556 U.S. at 678.
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. A plausibility
determination is context specific, and courts must draw on
judicial experience and common sense in evaluating a
complaint. Levitt v. Yelp! Inc., 765 F.3d 1123, 1135
(9th Cir. 2014).
argues Plaintiffs have failed to allege a cognizable strict
liability claim. (Doc. 4.) Northwestern contends §
50-63-103 only imposes strict liability where the facts show
the fire was deliberately and intentionally set, and points
out that Plaintiffs do not allege it intentionally set the
East Rosebud Fire. (Id.) Northwestern further argues
§ 50-63-104 is merely a limitation on damages in cases
where fires are caused by a negligent or unintentional act,
and is not a strict liability statute. (Id.)
Northwestern therefore argues Count I should be dismissed.
counter that they have asserted a facially plausible claim
under § 50-63-103 because they alleged Northwestern
failed to control, maintain, operate, install and replace its
electrical power lines, poles and equipment, which directly
caused the fire. (Doc. 9.) Plaintiffs further argue it is
premature to dismiss Count I until after discovery of
information regarding Northwestern's knowledge of its
electrical equipment malfunctions, and its actions/inactions
on the day of the fire and the days leading up to the fire.
(Id.) Plaintiffs concede that § 50-63-104 is
only a limitation on damages, and not a basis for strict
Turning to the operative statute, § 50-63-103 provides
in relevant part:
Except as provided in 50-63-104, a person who sets or leaves
a fire that spreads and damages or destroys property of any
kind not belonging to the person is liable for all damages
caused by the fire, and an owner of property damaged or
destroyed by the fire may ...