INTHE SUPREME COURT OF THE STATE OF MONTANA

No. 82-181 

# ------------ ALICE E. JACKSON, et al., Plaintiffs and Respondents,
VS. BURLINGTON NORTHERN, INC., 

### et al., Defendants and Appellants, and 

# sac"% 449E2 THE STATE OF MONTANA, Intervenor and Respondent. 

## ------------ OPINION AND ORDER DISMISSING APPEAL

-----em----- Eurlington Northern, Inc. (referredtohereafter as BN) appeals from an order of finaljudgment issued pursuant to Rule 54(b),M.R.Civ.P., entered inthe District Court of the Seventh Judicial District, Richland County. Although other issues areraised, 

### we find that the procedural issue of whether the District Court has followed the proper procedure incertifying a finaljudgment pursuant 

### to Rule 54(b), M.R.Civ.P. 

### is dispositiveof this appeal. On July 15, 1981, BN made a motion for summary judgment. Its motion was denied by theDistrictCourt on January 11, 1982. BN thereafter moved for an order entering final judgment pursuant 

### to Rule 54(b),M.R.Civ.P., on issues raised in itsmotion for summary judgment. In its order for final judgment dated April 16, 1982, the District Court ordered "that the Clerk of [the] Court enter a finaljudgment upon the order dated January 11, 1982, denying defendant Burlington Northern, Inc.'s motion for summary judgment, and the undersigned expressly determines that there 

### is no

### just reason for delay in the entry of final judgment on said order." The District Court did not cite any of the factors it relied upon in certifying the judgment, nor did it enter the judgment as required by Rule 58, M.R.Civ.P. Rule 54(b), M.R.Civ.P., modeled after Rule 54(b), Fed.R.~iv.P.,was designed to facilitate the entry of judgments on one ormore claims, or as to one or more parties inmulti-claim or multi-party actions. The basic purpose of Rule 54(b) is to avoid the possible injustice of delay in entering judgment on a distinctly separate claim or as to fewer than all of the parties until final adjudication of the entire case by making an immediate appeal available. 10Wright and Miller Federal Practice and Procedure, § 

### 2654 (1973),at 32;

### Allis-Chalmers Corp.

v. Philadelphia Elec. Co. (3rd Cir. 1975), 521 F.2d 360. Rule 54(b),M.R.Civ.P., states, "Whenmultiple claims for relief or multiple parties are involved in an action, the court may direct the entry of final judgment as to
one ormore but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.. 

# . ." After reviewing the procedure followed by the District Court,we find that it did not comply with the requirements of Rule 54(b) for several
reasons. First, in its order for final judgment, the District Court denied BN's motion for summary judgment. Rule 1, M.R.App.Civ.P., which determines fromwhat judgments
or orders an appeal nay be taken, does not include an order denying summary judgment as an appealable order. Indeed,"an order denying a motion for summary judgment 

### is an interlocutory order, whether made in a single claim, 

### a multiple claims, ormultiple parties action, and 54(b) does not affect thatproposition." 6 Moore Federal Practice 

### B 54.40. Therefore, "the certificate

### isnot 

### - conclusive as tothe finality of the trialcourt's order. If the order 

### is in fact interlocutory,. 

# .

# . an appeal from 

### it 

### willbe dismissed, even though the trialcourt has decided totreat the orders as final." 10Wright and Miller, at § 2655; Luria Bros. & Co. v. Rosenfeld (9th Cir. 1957), 244 F.2d 192. Second, the District Court failed to citeany of the factors 

### it relied upon when 

### it certified the judgment. Rule 54(b) states that the court must make "an express determination that there 

### isno just reason for delay 

# . . According toAllis-Chalmers Corp. v. Philadelphia Elec. Co. (3rdCir. 1975), 521 F.2d 360, "theDistrict Court must marshal1 and articulate the factors upon which 

### it relied incertifying 

### a judgment as final so thatprompt and effectivereview can be facilitated." Allis-Chalmers

was followed inRoy v. Neibauer (1980), P4on

### t

# . , 610 

### - - P.2d 1185, 37 St.Rep. 897, where this Court dismissed the appeal without prejudice for failure of the DistrictCourt tocitefactors as towhy there was no just reason for delay. Finally, the District Court did not enter a final judgment. "A judgment 

### is not final until 

### it 

### is set out separately and entered as required by Rule 58." 10Wright and Miller, at § 2656. Although the District Court did order the clerk of court toenter finaljudgment inthis case, finaljudgment was never docketed inthe record. Therefore, this Court 

### iswithout jurisdiction tohear ordecide the 

### meritsof this appeal. -3-Wedismiss this appeal without prejudice. Dated 

### this 

### 14th day of October, 1982.

# \ 

### Chief Justice