# 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 ofJudgment as to Plaintiffs entered in the Asbestos Claims Court ofthe State ofMontana, Twenty-Third Judicial District Court, in its Cause No. DV-57-20160000785-AE. The Entry ofJudgment as to Plaintiffs states, in its entirety: OnJune 9, 2021 theHonorable JudgeAmy 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 findspursuant to Mont. R. Civ. P. 54(b)that there is no just reason for delaying the entry ofjudgment 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) providesthat a district court may direct entry offinaljudgment underRule 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 22-0380district court must balance the competing factorspresent inthe case to determine ifit is in

the interest of soundjudicial administration and public policy to certify thejudgment as final, andthe court shall, in accordancewith 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 withoutjurisdiction 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 ifthe 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 ofMontana, 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 isnojustreason 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 courtmightbe obligedtoconsiderthe sarneissue asecondtime;(4)thepresenceorabsence ofa claim or counterclaim which could result in a set-offagainst thejudgment sought to be made final; and (5) miscellaneous factors such as delay, economic and solvency considerations, shorteningthetime oftrial,triviality ofcomputingclaims, expense, andthe 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 ifit is in the interest of soundjudicial administration and public policy to certify thejudgment 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 (citingRoy, 188 Mont. at 87, 610 P.2d at 1189). 2In Kohler, we reversed a district court's Rule 54(b) certification because it failed to

discuss Roy's factors and guidingprinciples, but was merely a "perfunctory certification." Kohler, ¶ 17. Similarly here, the Asbestos Claims Court did not discussRoy's factors and guiding principles nor did it articulate the basis of its determination that there is nojust
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 ofRule 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 ofthis Order to all counsel ofrecord. Dated this \\I May ofAugust, 2022.

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