WEINSTEIN v UNIVERSITY OF MONTANA
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Justice W. William Martin Fourth Leaphart E. Weinstein Judicial defendants, Dennison Court, University (Dennison), of and Robert its its decline partial (University), Kindrick the George M. (Kindrick), partial the District Court's order the District summary judgment to address granted cross-appeal partial Because we reverse previous which of the summary judgment order L. of the Court. from an order County, Montana The defendants judgment. appeals Missoula summary judgment. certifying the Opinion (Weinstein) District the delivered Court's order order as a final the merits of Weinstein's into detail, as a final certifying judgment, we appeal. Backsround Without necessary delving for an understanding Dennison is provost. The University Center in the president to further public of the affairs established the Weinstein spoke with position. Weinstein position Dennison alleges the powers of the Mansfield to date. and Kindrick is the in the areas of ethics On May 27, studies. Mansfield and Kindrick certain Center are the Maureen and Mike Mansfield of that facts background the University and modern Asian accepted following of the case's the work of Mike Mansfield Weinstein he accepted great Director Center before 1992, Director. he accepted representations the regarding were made to him before the position. On June 2, director's position, Professor of Public 1992, Dr. Deni accepted Affairs Elliot, a position and Ethics. 2 a finalist as the Mansfield Weinstein alleges for the Center that he was not given whether to hire (as Elliot's the opportunity Elliot. supervisor) be terminated year's contract notice University, 1993, his supporting covenant 4. application than receive under Center for he would least one against the Weinstein for amended his Weinstein filed his breach amended complaint of contract and fair and Kindrick with listed each of his hired later second Elliot was threatened Director employment Dennison at a complaint unless second sought and breach of Weinstein dealing. fortortious interference the University. five allegations factual theories: without Weinstein's was removed from Weinstein's 5. Contrary less filed 1994, complaint 3. Weinstein from his he would relationship 1. The defendants Mansfield June 30, 1993. of good faith contractual 2. Elliot academic effective that 22, the University relief the 1992-1993 Director Weinstein's Weinstein's between Weinstein that Weinstein sought damages from Dennison with of Weinstein and Kindrick. amended complaint. implied friction decision informed Center On February damages from the termination. Dennison, complaint. to during Kindrick stated before On May 28, the and Elliot as Mansfield Weinstein's contribute There was great On May 18, 1993, year. to with supervision. dismissal he signed approval. from his post an agreement that to as varied Weinstein's contract. and Kindrick tenure as a professor to his one year's failed employment notice of of Political agreement, termination 3 approve Science. Weinstein from his was given position as Director of the Mansfield On June 16, judgment 1994, on three on Weinstein's Center. the defendants issues. claim The University that hiring Elliot sought with tortiously the judgment year interfered University. period from The the date motion for On September order 23, granting judgment the court certified summary judgment granting appeal its the summary judgment Court judgment as a final Standard also erred and summary to a one- of termination. its judgment On granting summary judgment. moved the court 54(b), to certify summary judgment partial as a final M.R.Civ.P. order defendants Weinstein appeals and the defendants order as a final On January granting judgment. Court's issue for moved notice summary judgment order Dennison relationship Court entered previous District The dispositive the District he received as a final that by and Kindrick damages limited 1994, Weinstein to Rule contract contractual contractual partial partial from his his Dennison claim defendants defendants pursuant order with 1, 1994, the District defendants' consent. summary summary judgment breached on Weinstein's to have Weinstein's September its Weinstein's partial sought the University summary judgment Kindrick without moved for certifying 9, 1995, partial from the cross- its partial is: Whether judgment. raised in the cross-appeal in certifying its order of partial summary of Review We have stated Court to grant judgment. that lV[i]t is in the discretion or deny a request for 4 a Rule 54(b) of the District certification." Roy v. Neibauer (citations (1980), omitted). proceed in district Byard should We review court (1993), 81, 85, However the decision such a situation 610 P.2d at 1188. the 188 Mont. to allow be entered discretionary abused its 260 Mont. not 331, 610 P.2d 337, an appeal to ROY, to determine Montana 860 P.2d 121, 1188 lightly. rulings discretion. 1185, Rail if Link v. 125. Discussion 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 a 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. In the absence of such determination and direction, any order or however designated, other form of decision, which adjudicates less than all the claims or the rights and the parties shall not liabilities of less than all terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment claims adjudicating all the and the rights and liabilities of all the parties. If a district final court under the appeal. 127, 130, 54(b), ROY, Philadelphia is of the federal 610 P.2d Electric at Co. Bank of Pueblo v. Hartford 1188; rule (1981), patterned previously for guidance Allis 1975), after to federal courts' in our own cases. Chalmers (3rd Cir. Act. & Indem. Co. (10th 5 196 Mont. omitted). substantially citing as to entertain Lodge County We have looked an order jurisdiction 1197 (citation M.R.Civ.P., Rule 54(b). in certifying we are without 637 P.2d 1196, interpretations & 54(b), discretion Reidy v. Anaconda-Deer Rule Federal Rule abuses its 521 F.2d Cir. Corp. 360; v. United 1976), 529 F.Zd 490. The defendants granting partial single Third argue In support, Ltd. Circuit that summary judgment claim. v. Kanasco, first 1990), of Appeals District was a partial the defendants (3rd Cir. Court the cite Court's order adjudication of a Sussex Drug Products 920 F.2d 1150, 1154, in which the stated: Hesitant to slog through an exhaustive survey of opinions in search of an elusive decisive formula, we will mention but a few of the governing considerations discussed in case law. Alternative theories of recovery based on the same factual situation are but a single claim, not multiple ones. Alleshenv Countv Sanitarv Auth. [v. EPA (3rd Cir. 1984)1, 723 F.2d [1167] at 1172. An order that eliminates two of several elements of damages flowing from a single claim does not qualify for Rule 54(b) certification. [Citation omitted.] We adopt analyzing the language Rule alternative 54(b) theories situation of recovery court's order Rule 54(b). are further a partial parties to Kindrick multiple occasion it actions, to address since certified it consider Rule 54(b) as a final claim, judgment the under the fact that there two the three & were effectively grant of partial Rule 54(b) After parties. the a single summary action, this Court's of the partial were not for was amended, federal but not multiple party that and Dennison, the case by the District Before will in are based on the same factual adjudication We would agree if defendants, claims argue was not properly multiple that we that claim. The defendants was only issues, certification as a single judgment from Sussex Druq to the effect United in Liberty 6 it of dismissed from summary judgment. applied to multiple was amended to include States Mutual Supreme Ins. Court had Co. v. Wetzel (1976), 424 U.S. Mutual, the previous "Rule Court [54(b)] not that, involved all District but the 47 L.Ed.2d following multiple that University order Because its order disposed the parties, the District Court could is only the beginning However, that In w, consider in Depending bear upon certification. the we listed District cases where several on the particular the propriety We must apply Court abused its one claim, finally disposing pursuant a of Dennison defendant might district 2. the possibility not be mooted court; of some, but conduct and the all, not Rule 54(b) for seek Rule a district 54(b) some or all the those order factors of analysis. court between the of the factors granting Rule to determine whether adjudicated and might or in the that the reviewing court might 3. the possibility not be obliged to consider the same issue a second time; 4. the presence or absence of a claim counterclaim which could result in a setoff against judgment sought to be made final; may 54(b) listed that the need for review by future developments to certification. The factors discretion. or the 5. miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, 7 to in Roy are: 1. The relationship unadjudicated claims; a of our inquiry. case, of in at 743, n. 3. as factors parties ruling only disposes remains litigation. In Liberty be appealed 424 U.S. Court's but orders could Mutual, 435. an adverse parties of the parties Libertv the Kindrick, 1202, was amended to insure provisions." Here, 96 S.Ct. noted case that of some but its 737, in triviality Roy, of competing 610 P.2d at 1189 (citation Here, the District Weinstein's distinct. However, theories all found and we find claim. This there purposes, factor is that it was significant unadjudicated it are based on the 54(b) and the like. omitted). Court adjudicated expense, claims, but important more same set of a partial are that facts. legally Weinstein's Thus for adjudication against militates claims that of the granting Rule a single of a Rule 54(b) certification. The District developments the issues Court not court might moot the necessity before this in that presently Next, did the District Weinstein alleged University as in Rule 54(b) certification two of three dismissed his count defendants defendant, issues remain court appeal. Cir. thus may & 1992), against have to N.A.A.C.P. 978 F.2d 287, again factual with regard of against court the When against of the against is requested to decide court. American Family later Mutual The appellate on a direct Ins. Co. that: Ideally the facts and theories separated for immediate appeal should not overlap with those retained; to the extent they do, the court of appeals is "deciding" claims still pending in the district court, and may have to 8 them allegations same ground stating we address this to the dismissal the 292, if that allegations in the district v. review and Kindrick. the factual the appellate cover future is not likely Dennison and the pending of in each count with overlap the remaining which facts same is sought defendants, it the same issues the whether Court. Court found that Court would have to decide now. determine (7th cover the same ground when the district residue. N.A.A.C.P., against 978 F.2d the granting not bear 292. This "overlap" of a Rule 54(b) As the District of a set-off at upon the propriety factor found, there at issue the judgment acts on the militates certification. Court correctly against court here. of a Rule 54(b) is no possibility This factor certification does of this case. As to the miscellaneous it would order of be unusually limited notice factors, harsh to certify damages to a one-year of of damages flowing for 54(b) Court this period However, termination. elements Rule not the District case because from Weinstein's an order from a single claim that its receipt eliminates does not Sussex Druq Products, certification. found that qualify 920 F.2d at 1154. The District beneficial Court because it case by settlement" this Court District for in determining certification. advisory speed the process opinions in it whether to grant leads against Court in order the temptation to provide to certify guidance 9 to for a decision rely by motion of this settlement We believe the remainder Court or to such advisory and we caution difficult in on such a Rule 54(b) to facilitate courts. the of litigation to requests are beyond the scope of Rule 54(b) courts because undesirable was to resolve the balance is in order district certification "enhance opportunities Such reliance to render that and would be desirable We think Court." opinions would believed be used to "control could considerations also issues district to this of the case. In addition, Weinstein strongly eventual is the appeal if a non-factor. be successful. litigation, to are generally be granted favorable citing only exercise Allis Core., Under the ROY factors, demonstrating that the that District Weinstein's partial this We conclude with Several 1. considered abused based claim for properly certified under A judgment certification factors listed involving is meriting a 610 P.2d at 1188; to meet his burden harsh case. discretion We hold in of of granting the court's judgment. on the which dismisses case case' certification purposes adjudication a Rev, failed these considerations A partial in certification harsh its 54(b) 2. 3. 54(b) and piecemeal Rule 54(b) as a final theories as a single Rule of an certification certifications, Weinstein Rule summary judgment a promise Rule 54(b) . . . .'I This certification every case is the infrequent for an 521 F.2d at 365. Court motion 54(b) analyzing seeking of discretion Chalmers a Rule "'infrequent the promised If 54(b) that were not granted. disfavored. in and in party Rule significant in question. considered every it judgment seeking the judgment then virtually would summary party seriously case, found Rule 54(b) certification appeal were apparently opposed Every may eventually appeal court of a single for Rule 54(b) same set of analysis. facts of Rule 54(b) claim than all parties be analysis. generally some but fewer are is not Rule 54(b). multiple under Rule 54(b), depending in w. 10 may parties proper upon the analysis for of the 4. A case involving dismissed, claim, and which is not proper multiple involves for Because the District its partial Court's order as a final prejudice. order discretion as final certifying We dismiss and remand for We concur: 11 of are a single certification. to hear Weinstein's judgment. We reverse order in which no parties adjudication Court abused its jurisdiction the District a partial Rule 54(b) summary judgment are without parties its under Rule appeal. partial 54(b), we We reverse summary judgment Weinstein's further in certifying appeal proceedings. without
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