                                                                                          06/09/2020


            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                                                                      Case Number: DA 20-0237


                                         DA 20-0237


 KOLE FITZPATRICK, DBA FITZPATRICK
 TRUCKING,
                                                                        IF/LED
              Plaintiff and Appellant,
                                                                       JUN 0 9 2020
                                                                    Bowen
       v.                                                         Clerk of Greenwood
                                                                          Supreme Couri
                                                                     State of
                                                                              Montana

 TRAIL CREEK ENTERPRISES,LLC,JASON
 SUBATCH,WESTERN STATES EQUIPMENT                                   ORDER
 COMPANY("CAT"), AND JOHN DOES 1-60,

              Defendants and Appellees,

 TRAIL CREEK ENTERPRISES,LLC AND
 JASON SUBATCH,

              Counter-Plaintiffs and Appellees.


       Counsel for Appellant Kole Fitzpatrick, dba Fitzpatrick Trucking (Fitzpatrick), has
filed a notice of appeal from an order of the Twentieth Judicial District Court,
Sanders County, granting a motion to dismiss in favor of Defendant Western States
Equipment Company(Western States). On April 10, 2020,the District Court certified this
order as final for purposes of immediate appeal pursuant to M. R. Civ. P. 54(b). On
April 24, 2020, Fitzpatrick filed his notice of appeal.
       Under M. R. App. P. 4(4)(b), upon the filing of a notice of appeal undertaken
pursuant to a Rule 54(b)certification, the Clerk of this Court immediately forwards copies
of the Notice of Appeal to this Court. Then,"Nile appeal shall not proceed further" until
this Court has reviewed the certification order, determined that it complies with Rule 54(b)
and M. R. App. P. 6(6), and enters an order allowing the appeal to proceed.
      Prior to this Court's undertaking review pursuant to Rule 4(4)(b), Appellees Trail
Creek Enterprises, LLC, and Jason Subatch ("Subatch") moved to dismiss Fitzpatrick's
appeal. Subatch argues the District Court should not have certified this order as final
pursuant to Rule 54(b)because it was not a finaljudgment that ends litigation on the merits,
that the order of dismissal fails to expressly determine there is no just reason for delay
pursuant to Rule 54(b) and M.R. App.P. 6, and thejudgment did not issue a final decision
upon the relief requested by Fitpatrick. In response, Fitzpatrick contends Subatch is not a
party to this appeal, and the District Court's final judgment is final as to Western States.
        Pursuant to M. R. App. P. 4(4)(b), we have reviewed the District Court's
April 10, 2020 order 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, "Mil so doing, the district court
must balance the competing factors present in the case to determine if it is in the interest
ofsound 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 . . . ."
        To meet these criteria,the District Court must do more than "merely recite the magic
words" that "there is no just reason for delay." Kohler v. Croonenberghs, 2003 MT 260,
¶ 14, 317 Mont. 413, 77 P.3d 531 (citation omitted). As set forth in Roy v. Neibauer,
188 Mont. 81, 87, 610 P.2d 1185, 1189 (1980), 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 district court;(3)the possibility that the reviewing
court might be obliged to consider the same 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 oftrial, triviality ofcomputing claims, expense, and the
like.   In certifying an order under Rule 54(b), a district court must follow three
"guiding principles": (1) the burden is on the party seeking certification to convince the
district court that the case is the "infrequent harsh case meriting a favorable exercise of

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discretion;(2) the district court must balance the competing factors present in the case to
determine if it is in the interest ofsound judicial administration and public policy to certify
the judgment as final; and(3)the district court must rnarshal 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).
       In this instance, the District Court applied these factors in determining that
Rule 54(b) certification was warranted regarding the order granting dismissal. However,
Subatch's Motion to Dismiss Appeal and Breif[sic] in Support fails to cite these factors or
argue that the District Court abused its discretion in certifying the order as final for
purposes of appeal. Of the arguments Subatch raises, only one—that the District Court
failed to expressly determine there is no just reason for delay—is relevant to the applicable
factors. However, this argument is factually incorrect, as the District Court ftilly analyzed
this factor in its certification order, concluding that there was no just reason to delay finality
for Western States when it diligently participated in the litigation and defended itself, and
that Western States should not have to bear the expense of "monitor[ing] the litigation
between [Fitzpatrick] and [Subatch] in order to obtain a final judgment."
       Pursuant to M. R. App. P. 4(4)(b), we have reviewed the District Court's
certification order for compliance with M. R. App. P. 6(6). We conclude the court's

certification order is in substantial compliance with the requirements of Rule 6(6) and our

case law interpreting certification orders under Rule 54(b).

       Therefore,

       IT IS ORDERED that this appeal may proceed.

       IT IS FURTHER ORDERED that Subatch's Motion to Dismiss Appeal is DENIED.

       The Clerk is directed to provide copies of this Order to all counsel of record.
       Dated this 1 — day of June, 2020.



                                                                   Chief Justice
                                               .3
    Justices




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