NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
MICHAEL PETERSON, individually and as the personal representative for the estate of Joshua Peterson, Plaintiff - Appellant, v. TIME INSURANCE COMPANY, ASSURANT HEALTH, JOHN ALDEN LIFE INSURANCE COMPANY, AETNA LIFE INSURANCE COMPANY, JOHN DOES, 1,2,3, Defendants - Appellees. No. 12-35505D.C. No. 9:11-CV-00081-DWMJCL MEMORANDUM *

Appeal from the United States District Court for the District of Montana Donald W. Molloy, District Judge, Presiding Submitted March 5, 2014 ** Portland, Oregon 

# FILED

MAR 13 2014 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).Before: TROTT and W. FLETCHER, Circu it Judges, and BLOCK, Senior District Judge. *** 1. The district court correctly held that Peterson’s claims against Aetna Life Insurance Company were preempted by ERISA. See Qualls v. Blue Cross of Cal., Inc. , 22 F.3d 839, 843 n.4 (9th Cir. 1994). 2. With respect to Time Insurance Company, Assurant Health and John Alden Life Insurance Company (collectiv ely, “Assurant”), the district court correctly held that Peterson’s claims fo r negligent and intentional infliction of emotional distress were barred by Mont. Code Ann. § 33-18-242(3). See Brewington v. Employers Fire Ins. Co. , 992 P.2d 237, 239-41 (Mont. 1999). 3. The district court correctly held that Peterson failed to plead his claims for constructive fraud/breach of fiduciary duty with the particularity required by Fed. R. Civ. P. 9(b). Pete rson failed to allege any specific false statements made by Assurant. See Town of Geraldine v. Montana Mun. Ins. Auth. , 198 P.3d 796, 801 (Mont. 2008) (requiring plaintiff to plead, inter alia , false representations); Vess v. Ciba-Geigy Corp. , 317 F.3d 1097, 1106 (9th Cir. 2003) (“The plaintiff must set forth what is fa lse or misleading about a statement, and

*** The Honorable Frederic Block, Senior United States District Judge for the Eastern District of New York, sitting by designation. 2why it is false.” (citation and internal quotation marks omitted)). We deny Peterson’s request for leave to amend because he has failed to explain what specific false statements he would allege by way of amendment. 4. The district court correctly held that Montana’s Unfair Trade Practices Act (“UTPA”) does not create a private right of action for violations of subsections (2), (3), (7) or (14) of Mont. Code Ann. § 33-18-201. See Mont. Code Ann. § 33- 18-242(1). 5. The district court correctly held that Assurant satisfied its initial burden of showing that it complied with th e insurance contract and the actionable subsections of UTPA, and that Peterson failed to offer evidence of noncompliance. See Devereaux v. Abbey , 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc) (citing Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986)). 6. Because the district court’s substa ntive holdings were all correct, we do not address Peterson’s argument that the magistrate judge should have been recused. We by no means imply that th e magistrate judge showed any actual or apparent bias against Peterson or in favor of insurance companies. AFFIRMED.

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