IN THE SUPREME COURT OF THE STATE OF MONTANA 

No. 82-181 

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ALICE E. JACKSON, et al., 

Plaintiffs and Respondents, 

VS. 

BURLINGTON NORTHERN, INC., et al., 

Defendants and Appellants, 

and sac"% 4 49E2 

THE STATE OF MONTANA, 

Intervenor and Respondent. 

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OPINION AND ORDER DISMISSING APPEAL -----em----- 

Eurlington Northern, Inc. (referred to hereafter as 

BN) appeals from an order of final judgment issued pursuant 

to Rule 54(b), M.R.Civ.P., entered in the District Court 

of the Seventh Judicial District, Richland County. Although 

other issues are raised, we find that the procedural issue of 

whether the District Court has followed the proper procedure 

in certifying a final judgment pursuant to Rule 54(b), 

M.R.Civ.P. is dispositive of this appeal. 

On July 15, 1981, BN made a motion for summary judgment. 

Its motion was denied by the District Court 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 its motion 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 final judgment 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 or more claims, or as to one or more 

parties in multi-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. 10 Wright 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, "When multiple claims 

for relief or multiple parties are involved in an action, 

the court may direct the entry of final judgment as to 

one or more 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 from what 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, or multiple parties action, and 54(b) 

does not affect that proposition." 6 Moore Federal 

Practice B 54.40. Therefore, "the certificate is not - 

conclusive as to the finality of the trial court's order. 

If the order is in fact interlocutory,. . . an appeal 

from it will be dismissed, even though the trial court 

has decided to treat the orders as final." 10 Wright and 

Miller, at § 2655; Luria Bros. & Co. v. Rosenfeld (9th 

Cir. 1957), 244 F.2d 192. 

Second, the District Court failed to cite any 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 is no just reason for delay . . 

According to Allis-Chalmers Corp. v. Philadelphia Elec. 

Co. (3rd Cir. 1975), 521 F.2d 360, "the District Court 

must marshal1 and articulate the factors upon which it 

relied in certifying a judgment as final so that prompt 

and effective review can be facilitated." Allis-Chalmers 

was followed in Roy 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 District Court 

to cite factors as to why 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." 10 Wright 

and Miller, at § 2656. Although the District Court did order 

the clerk of court to enter final judgment in this case, 

final judgment was never docketed in the record. Therefore, 

this Court is without jurisdiction to hear or decide the 

merits of this appeal. 

-3- 
We dismiss this appeal without prejudice. 

Dated this 14th day of October, 1982. 

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Chief Justice