Aarstad v. BNSF ( 2022 )

ORIGINAL 08/16/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 22-0380
DA 22-0380
KOREY L. AARSTAD, et al.,
Plaintiffs and Appellants, AUG 1 6 2022
Bowen Greenwood
Clerk of Supreme Court
v. State of Montana
BNSF RAILWAY COMPANY, a Delaware ORDER
corporation; JOHN SWING; MARYLAND
CASUALTY COMPANY, a Maryland
Corporation; ROBINSON INSULATION
COMPANY, a Montana Corporation for profit; and
DOES A-Z,
Defendants and Appellees.
Counsel for Plaintiffs and Appellants Korey L. Aarstad, et al., have filed a notice of
appeal from the June 15, 2022 Entry of Judgment as to Plaintiffs entered in the Asbestos
Claims Court of the State of Montana, Twenty-Third Judicial District Court, in its Cause
No. DV-57-20160000785-AE.
The Entry of Judgment as to Plaintiffs states, in its entirety:
On June 9, 2021 the Honorable Judge Amy Eddy signed an Order dismissing
all claims on the deferred docket unless the plaintiffs filed a motion to
activate by October 29, 2021. Plaintiffs [sic] claims were placed on the
deferred docket and no motion to activate was filed by the October 29, 2021
deadline. The Court finds pursuant to Mont. R. Civ. P. 54(b) that there is no
just reason for delaying the entry of judgment as to the claims brought by
Plaintiffs. JUDGMENT IS HEREBY ENTERED in favor of Defendants
BNSF Failrway Co. and John Swing.
Pursuant to M. R. App. P. 4(4)(b), we have reviewed the Asbestos Claims Court's
June 15, 2022 Entry of Judgment for compliance with M. R. App. P. 6(6). Rule 6(6)
provides that a district court may direct entry of final judgment under Rule 54(b) only upon
an express determination that there is no just reason for delay and, "[i]n so doing, the
district court must balance the competing factors present in the case to determine if it is in
the interest of sound judicial administration and public policy to certify the judgment as
final, and the court shall, in accordance with existing case law, articulate in its certification
order the factors upon which it relied in granting certification . . . ."
If a court abuses its discretion in certifying an order as final under Rule 54(b), we
are without jurisdiction to entertain the appeal. Kohler v. Croonenberghs, 2003 MT 260,
317 Mont. 413, 77 P.3d 531. Thus, even if not raised by a party, we will sua sponte
determine if the court's certification order meets the criteria we have set forth in Roy v.
Neibauer, 188 Mont. 81, 610 P.2d 1185 (1980), and Weinstein v. University of Montana,
271 Mont. 435, 898 P.2d 101 (1995). Kohler, TT 8-9.
To meet these criteria, the trial court must do more than "merely recite the magic
words" that "there is no just reason for delay." Kohler, ¶ 14 (citation omitted). As set forth
in Roy, 188 Mont. at 87, 610 P.2d at 1189, the factors this Court normally considers
regarding a Rule 54(b) certification include: (1) the relationship between the adjudicated
and unadjudicated claims; (2) the possibility that the need for review might or might not
be mooted by future developments in the trial court; (3) the possibility that the reviewing
court might be obliged to consider the sarne issue a second time; (4) the presence or absence
of a claim or counterclaim which could result in a set-off against the judgment sought to
be made final; and (5) miscellaneous factors such as delay, economic and solvency
considerations, shortening the time of trial, triviality of computing claims, expense, and the
like. In certifying an order under Rule 54(b), a court must follow three "guiding
principles": (1) the burden is on the party seeking certification to convince the trial court
that the case is the "infrequent harsh case" meriting a favorable exercise of discretion;
(2) the court must balance the competing factors present in the case to determine if it is in
the interest of sound judicial administration and public policy to certify the judgment as
final; and (3) the court must marshal and articulate the factors upon which it relied in
granting certification so that prompt and effective review can be facilitated. Kohler, ¶ 16
(citing Roy, 188 Mont. at 87, 610 P.2d at 1189).
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In Kohler, we reversed a district court's Rule 54(b) certification because it failed to
discuss Roy's factors and guiding principles, but was merely a "perfunctory certification."
Kohler, ¶ 17. Similarly here, the Asbestos Claims Court did not discuss Roy's factors and
guiding principles nor did it articulate the basis of its determination that there is no just
reason for delay as set forth in M. R. App. P. 6(6).
For that reason, we conclude the court's certification order is not in substantial
compliance with the requirements of Rule 6(6) and our case law interpreting certification
orders under Rule 54(b).
IT IS THEREFORE ORDERED that this appeal is DISMISSED WITHOUT
PREJUDICE.
The Clerk is directed to provide copies of this Order to all counsel of record.
Dated this \\I May of August, 2022.
694 AI 411,
3