ORIGINAL 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

DA 22-0380 

KOREY L. AARSTAD, et al., 

v. 

Plaintiffs and Appellants, AUG 1 6 2022 

Bowen Greenwood 

Clerk of Supreme Court 

State of Montana 

BNSF RAILWAY COMPANY, a Delaware 

corporation; JOHN SWING; MARYLAND 

CASUALTY COMPANY, a Maryland 

Corporation; ROBINSON INSULATION 

COMPANY, a Montana Corporation for profit; and 

DOES A-Z, 

Defendants and Appellees. 

ORDER 

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 

08/16/2022

Case Number: DA 22-0380
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). 

2 
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. 

3 

694 AI 411,