No. 85-242 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

DECKER COAL COMPANY, 

Plaintiff, 

-vsCOMMONWEALTH ED1 SON COMPANY, 

Defendant. 

ORIGINAL PROCEEDING: 

COUNSEL OF RECORD: 

For Plaintiff: 

Crowley Law Firm; Jack Ramirez argued, Billings, 

Montana 

Dykema, Gossett, Spencer, Goodnow & Trigg; Donald S. 

Young, Derek I. Meier, Jeffrey M. Lipshaw, Daniel J. 

Stephenson, Detroit, Michigan 

George F. Heiden, Omaha, Nebraska 

For Defendant : 

Hooks & Budewitz; Patrick J. Hooks argued, Townsend, 

Montana 

Isham, Lincoln & Beale; Donald J. McLachlan, James A. 

Fletcher, Michael J. Gill, James K. Meguerian, 

Chicago, Illinois 

Submitted: December 5, 1985 

~ecided: February 20, 1986 

9570 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This case is before the Montana Supreme Court pursuant 

to a certification by the United States Court of Appeals for 

the Ninth Circuit. Plaintiff Decker Coal Company ("Decker") 

brought suit against defendant Commonwealth Edison Company 

("Edison") in the United States District Court for the 

District of Montana. Edison moved to dismiss the complaint, 

asserting, among other things, that Decker lacked the 

capacity to sue in its own name. The Distict Court held that 

Decker does have the capacity to sue in its own name, and 

Edison appealed. The Ninth Circuit viewed the capacity 

question as important to the resolution of this dispute and 

certified the issue to this Court. 

For the reasons discussed below, we find that under 

Montana law Decker has the capacitiy to maintain a suit 

against Edison in its own name and consequently we answer the 

certified question presented by the Ninth Circuit in the 

affirmative. 

Decker Coal Company is a joint venture between Wytana, 

Inc., a Delaware corporation, and Western Minerals, Inc., an 

Oregon corporation. It is engaged in the surface mining of 

low sulphur coal and operates its plant in Decker, Montana. 

Commonwealth Edison Company is an Illinois corporation. In 

1974, Decker Coal and Edison entered a long-term contract 

under which Decker agreed to supply coal to Edison in 

quantities between minimum and maximum tonnages from 1978 to 

1997. 

Article XI of the contract contained a force majeure 

provision which allowed performance to be deferred or excused 

upon certain events. The contract called for delivery F.O.B. 
the Montana mine. The coal would then be shipped via 

railroad to Edison plants in Illinois and Indiana. 

Edison invoked the force majeure provision to defer or 

terminate coal purchase obligations in May, June and July, 

1983. Edison claimed that structural damage to its plant in 

Illinois and a cracked turbine rotor at its Indiana plant 

justified invocation of the force majeure provision. 

On January 4, 1984, Decker filed a complaint in the 

United States District Court for the District of Montana 

seeking a declaration that the problems at the Edison plant 

did not qualify as force majeure events. Decker also sought 

damages for breach of contract, claiming that Edison failed 

to take sufficient measures to prevent damage to its 

generating plants thereby breaching an alleged contractual 

duty to mitigate damages. 

Several days later, Edison filed an action in the 

Northern District of 1l.linoi.s seeking a declaration that it 

properly invoked the force majeure provision of the contract. 

On February 3, Decker filed a motion in the Montana 

action to enjoin further prosecution of the Illinois case. 

On February 8, Edison filed a motion to dismiss the Montana 

complaint on the grounds that: (1) Decker lacked capacity to 

maintain the action in its own name; (2) the District Court 

did not have personal jurisdiction over Edison; and (3) the 

District of Montana was an improper venue. Edison also 

sought transfer of the case to the Northern District of 

Illinois. 

The Montana District Court, Chief Judge Rattin, ruled 

that jurisdiction was properly asserted, that venue was 

proper in Montana because the alleged contract breach 

occurred in Montana, and that Decker had the capacity to sue 
as a partnership entity under Montana law. The motion to 

transfer was denied, and the motion to enjoin the Illinois 

proceeding was granted. 

Edison appealed from the Montana District Court's order 

to the United States Court of Appeals for the Ninth Circuit. 

On appea.1, Edison raised the issues of capacity, 

jurisdiction, and venue. Following full briefing and oral 

argument, the Ninth Circuit determined that the capacity 

issue, which is governed by Montana law, may be dispositive 

of this case. Accordingly, by an order dated March 21, 1985, 

has certified the following question to this Court: 

Does Decker Coal Company, a.s a joint 

venture between two out-of-state 

corporations, have capacity to bring suit 

as a plaintiff against a corporation 

under Montana law? 

Both Decker and Edison agree tha.t under Montana law, 

Decker's capacity to maintain its Federal Court action is 

governed by statute. Rule 17(b) of the Federal Rules of 

Civil Procedure provides that the capacity of a party (other 

than an individual or a corporat-ion) to sue "shall be 

determined by the law of the state in which the District 

Court is held." Thus, Montana law governs the question of 

Decker's capacity to bring suit against Edison in the Montana 

District Court. If Decker lacks capacity to maintain suit in 

the state courts of Montana, it likewise lacks capacity to 

sue in Montana Federal Court. 

Under Montana law, Rule 17(b) of the Montana Rules of 

Civil Procedure governs capacity to sue in Montana courts. 

Montana. Rule 17 (b) provides that " [t] he capacity of persons 

to sue and be sued shall be determined by appropriate 

statutory provisions." Thus, both parties agree, Montana 

Rule 17(b) is entirely dispositive of the question before 
this Court. Therefore, early Montana cases which disputably 

held that a partnership does not have the capacity to 

maintain a suit in its own name are of little value. See 

Gardiner v. Eclipse Grocery Company (1925), 72 Mont. 540, 234 

P. 490; Wilson v. Yegen Bros. (1909), 38 blont. 504, 100 P. 

613. It should also be noted that under Montana law a joint 

venture (such as Decker) is treated like a partnership. 

Murphy v. Redland (1978), 178 Mont. 296, 583 P.2d 1049. 

In light of the above discussion, this Court is 

essentially being asked to interpret Rule 17(b) of the 

Montana Rules of Civil Procedure. Edison argues we must 

strictly interpret this rule. In other words, that in the 

absence of express statutory authorization, no person has the 

capacity to file a lawsuit in Montana. And, Edison argues, 

there is simply no statutory provision granting a partnership 

(or joint venture) the capacity to sue in its own name in 

Montana courts. 

Decker, on the other hand, argues Rule 17 (b) should be 

interpreted liberally. Decker argues Rule 17(b) does not say 

that no person has capacity to sue unless and until there is 

a statute passed that expressly grants such capacity. The 

rule merely says that in determining whether someone has the 

capacity to sue, this Court should look at the statutes of 

Montana. There is no statute in Montana that expressly 

denies partnerships the capacity to sue, just as there is no 

statute expressly granting the capacity to sue. Therefore, 

Decker argues, this Court must determine on the basis of 

existing statutes whether the Montana Legislature intended 

that partnerships be treated as separate entities distinct 

from their partners. If so, then Decker should have the 
capacity to sue. We agree with Decker's interpretation of 

Rule 17 (b) . 

First, Decker directs this Court's attention to the 

Uniform Partnership Act (UPA) , adopted by Montana in 1.947, 

S 35-10-101 et. seq., MCA. Although Decker submits the UPA 

does not expressly deal with the question of a partnership's 

capacity to sue, Deck.er argues the UPA does show the modern 

tendency to treat a partnership as a legal entity distinct 

from and independent of the individuals composing it. For 

example, under S 35-10-301, MCA, a partnership may own 

property in its own name. Al.so, und.er S 35-10-301 (3) (e) , 

MCA, a partnership may own a "claim" against third persons. 

The Minnesota Supreme Court, in Gleason v. Sing inn. 1941), 

297 N.W. 720, described the changes brought about by the UPA: 

While a copartnership at common law was 

not considered a distinct entity from the 

partners composing it, the modern 

tendency is the other way, i.e., to treat 

a partnership as an entity distinct from 

and independent of the individuals 

composing it. 20 R.C.L. p. 804, S6, and 

cases under note 16. That notion has 

grown in popularity and has been 

confirmed in many situations so as to be 

recognized as "the oneness of any 

somewhat permanently combined group 

without the aid of law." ID. p. 805. 

The uniform partnership act, 2 Mason 

Einn. St. 1927, 57384-7428, has wrought 

decided changes in the common law 

conception of such organizations, as was 

pointed out in Windom Nat. Bank v. Klein, 

191 Minn. 447, 254 N.W. 602. There is a 

tendency to treat a partnership as an 

entity under our bankruptcy act. Cf . Loomis v. Wallblom, 94 Minn. 392, 396, 

102 N.W. 1114, 69 L.R.A. 771, 3 Ann.Cas. 

798; Angel1 v. White Eagle 0. & R. Co., 

169 Minn. 183, 210 N.W. 1004, 20 Harv. L. 

Rev. 589. 1t is so generally treated in 

the business world, and no good reason is 

apparent why the law should not conform 

to business custom and usage. 22 

Harv.L.Rev. 393; 24 Id. 603; 28 Id. 762; 

29 Id. 158, 291, 838; 8 Columbia L.Rev. 

391; 13 Id. 143. 
297 N.W. at 722. 

We agree with Decker that from the language of the UPA 

and Gleason it is clear that a partnership is indeed a legal 

entity distinct from its partners. Therefore, a partnership 

has the capacity to sue in its own name. 

Decker goes on to list some examples of other Montana 

statutes which show an intent by the Montana Legislature to 

treat the partnership as a distinct entity for the purposes 

of litigation. For instance, under § 25-5-104, MCA, a 

partnership may be sued in its own name. Also, § 25-35-505, 

MCA, provides that a partnership may sue in small claims 

court in its own name. 

In light of the above discussion, this Court has little 

choice but to follow the clear intent of the Montana 

Legislature to treat partnerships as distinct entities with 

power to sue. It would be illogical and unfair to conclude 

that a partnership may own a claim but cannot enforce it; may 

own property but cannot protect it; may be sued but cannot 

sue; may sue in small claims court but not in Federal Court. 

The Montana Legislature should not be deemed to have acted so 

capriciously. 

It is undoubtedly true, as Edison suggests, that the 

Montana Legislature could have enacted a statute permitting 

partnerships to sue in their own names. Conversely, it could 

have enacted a statute prohibiting a partnership from suing 

in its own name. The fact is that it did neither. In the 

absence of express guidance from the Legislature this Court 

must follow what we submit is the clear intent of the 

Legislature to treat partnerships as distinct entities with 

power to sue. 
We find that under Xontana law Decker has the capacity 

to maintain a suit against Edison in its own name and 

consequently we answer the certified question presented by 

the Ninth Circuit in the affirmative. 

We concur: