United States District Court, D. Montana, Billings Division
KELLY D. PORCH and MICHELLE R. PORCH, Plaintiff,
OCHOA'S CONSTRUCTION, INC.; PREFERRED CONTRACTORS INSURANCE COMPANY RISK RETENTION GROUP; GOLDEN STATE CLAIMS ADJUSTERS; and JOHN DOES I-V, Defendants.
FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE
TIMOTHY J. CAVAN UNITED STATES MAGISTRATE JUDGE.
the Court is defendants Preferred Contractors Insurance
Company Risk Retention Group (“PCIC”) and Golden
State Claims Adjusters' (“Golden State”)
(collectively, “Defendants”) Motion for
Reconsideration (the “Motion”). (Doc. 60.) For
the reasons that follow, the Court recommends that
Defendants' Motion be granted.
following facts are derived from plaintiffs Kelly D. Porch
(“Kelly”) and Michelle R. Porch's
“Plaintiffs”) Second Amended Complaint and Demand
for Jury Trial (“SAC”) (Doc. 28.), the
parties' briefs, and the events occurring in the course
of this litigation as reflected by the Court's docket.
They are assumed to be true for the purposes of these
Findings and Recommendations.
filed their original Complaint and Demand for Jury Trial
(“Complaint”) on November 24, 2014, in the
Montana Thirteenth Judicial District Court, Yellowstone
County against Ochoa's Construction, Inc. (Ochoa), and
others. (Doc. 6.) The initial Complaint alleged damages
arising from a workplace accident Kelly claims to have
sustained in July 2014. (Id.) Neither PCIC nor
Golden State were named as defendants.
time of Kelly's alleged accident, PCIC insured Ochoa
under a commercial general liability policy. (Doc. 28 at
¶ 13.) PCIC informed Ochoa by letter dated May 21, 2015,
that no coverage existed for the allegations in
Plaintiffs' Complaint, and that PCIC would be denying
coverage for defense and indemnity. (Id. at
¶¶ 14, 16.)
February 24, 2016, Ochoa entered into a stipulated consent
judgment and covenant not to execute, and assigned to
Plaintiffs all of its rights against Defendants.
(Id. at ¶ 19.) Plaintiffs thereafter dismissed
all defendants except Ochoa. (Docs. 18, 23.)
March 28, 2017, Judge Ingrid Gustafson of the Montana
Thirteenth Judicial District Court held a reasonableness
hearing with respect to Plaintiffs and Ochoa's stipulated
consent judgment. (Doc. 26.) Plaintiffs were present at the
hearing and presented evidence in support of the
reasonableness of the judgment; Ochoa did not appear.
(Id.) On March 30, 2017, Judge Gustafson entered
judgment in the amount of $4, 700, 000.00 in favor of
Plaintiffs and against Ochoa. (Id.)
19, 2017, Plaintiffs filed an Unopposed Motion for
Leave to File Second Amended Complaint. (Doc. 5-1 at 515-516)
(emphasis in original). That motion apparently was not
accompanied by any briefing or argument as to the
appropriateness of amending a complaint after judgment had
been entered against the last remaining defendant.
(Id.) Judge Gustafson's order granting
Plaintiffs leave to file the SAC notes “that the
parties have conferred and the sole remaining current
Defendant in this case, [Ochoa], has consented in writing to
the filing of the Second Amended Complaint.” (Doc. 27.)
The order, also dated May 19, 2017, does not address any
concerns as to the timing of the amendment.
filed the SAC on May 23, 2017, adding PCIC and Golden State
as defendants, and asserting various claims against them
based on their coverage decisions with respect to Ochoa.
(See generally Doc. 28.) The SAC also restates
Plaintiffs' original claims against Ochoa. (Id.)
entered a Notice of Appearance in Montana state court on June
28, 2017, and then promptly removed the case to this Court.
(Docs. 1, 5-1 at 521-523.) On July 5, 2017, they filed a
motion seeking the dismissal of Plaintiffs' claims
against them pursuant to Rule 12(b)(6), Fed. R. Civ. P.,
presenting largely the same argument they make in the instant
Motion - that Judge Gustafson erred in permitting Plaintiffs
to amend their complaint after judgment had been entered in
the state court. (Docs. 3, 4.)
Findings and Recommendations of U.S. Magistrate Judge
(“F&R”), this Court found that regardless of
the merits of Defendants' position with respect to the
correctness of Judge Gustafson's order, a Rule 12(b)(6)
motion was not the proper vehicle for that argument, and
recommended that Judge Watters deny the motion. (Doc. 38.)
Judge Watters adopted the F&R in full, but indicated in a
footnote that a motion for reconsideration may be the
appropriate method to advance Defendants' argument. (Doc.
43 at 5, n. 1.) The Court subsequently granted leave for
Defendants to seek reconsideration (Doc. 59), and the instant
of Montana Local Rules permit reconsideration of “any
interlocutory order” on grounds set forth in L.R.
7.3(b)(1) or (2). L.R. 7.3(a). The pertinent provisions state
that “[a] motion ...