Weinstein v. UNIVERSITY OF MONTANA

Justice W. William Leaphart delivered the Opinion of the Court.

Martin E. Weinstein (Weinstein) appeals from an order of the
Fourth Judicial District Court, Missoula County, which granted the
defendants, the University of Montana (University), George M.
Dennison (Dennison), and Robert L. Kindrick (Kindrick), partial
summary judgment. The defendants cross-appeal the District Court's
order certifying its partial summary judgment order as a final
judgment. Because we reverse the District Court's order certifying
its previous partial summary judgment order as a final judgment, we
decline to address the merits of Weinstein's appeal.
Backsround
Without delving into great detail, the following facts are
necessary for an understanding of the case's background to date.
Dennison is the president of the University and Kindrick is the
provost. The University established the Maureen and Mike Mansfield
Center to further the work of Mike Mansfield in the areas of ethics
in public affairs and modern Asian studies. On May 27, 1992,
Weinstein accepted the position of Mansfield Center Director.
Weinstein spoke with Dennison and Kindrick before he accepted the
position. Weinstein alleges that certain representations regarding
the powers of the Mansfield Center Director were made to him before
he accepted the position.
On June 2, 1992, Dr. Deni Elliot, a finalist for the
director's position, accepted a position as the Mansfield Center
Professor of Public Affairs and Ethics. Weinstein alleges that he

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was not given the opportunity to contribute to the decision of
whether to hire Elliot. There was great friction between Weinstein
(as Elliot's supervisor) and Elliot during the 1992-1993 academic
year. On May 18, 1993, Kindrick informed Weinstein that he would
be terminated as Mansfield Center Director effective June 30, 1993.
Weinstein's contract stated that he would receive at least one
year's notice before termination.
On May 28, 1993, Weinstein filed a complaint against the
University, Dennison, and Kindrick. Weinstein later amended his
complaint. On February 22, 1994, Weinstein filed his second
amended complaint. Weinstein's second amended complaint sought
damages from the University for breach of contract and breach of
the implied covenant of good faith and fair dealing. Weinstein
sought damages from Dennison and Kindrick fortortious interference
with his contractual relationship with the University.
Weinstein's complaint listed five factual allegations
supporting relief under each of his theories:
1. The defendants hired Elliot without Weinstein's approval.
2. Elliot was removed from Weinstein's supervision.
3. Weinstein was threatened with dismissal from his post as
Mansfield Center Director unless he signed an agreement that varied
from his employment contract.
4. Dennison and Kindrick failed to approve Weinstein's
application for tenure as a professor of Political Science.
5. Contrary to his employment agreement, Weinstein was given
less than one year's notice of termination from his position as

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Director of the Mansfield Center.
On June 16, 1994, the defendants moved for partial summary
judgment on three issues. The University sought summary judgment
on Weinstein's claim that the University breached his contract by
hiring Elliot without Weinstein's consent. Dennison and Kindrick
sought summary judgment on Weinstein's claim that Dennison and
Kindrick tortiously interfered with his contractual relationship
with the University. The defendants also moved for summary
judgment to have Weinstein's contractual damages limited to a one-
year period from the date he received notice of termination. On
September 1, 1994, the District Court entered its judgment granting
defendants' motion for partial summary judgment.
On September 23, 1994, Weinstein moved the court to certify
its order granting defendants partial summary judgment as a final
judgment pursuant to Rule 54(b), M.R.Civ.P. On January 9, 1995,
the court certified its previous order granting defendants partial
summary judgment as a final judgment. Weinstein appeals from the
order granting partial summary judgment and the defendants cross-
appeal from the District Court's order certifying its partial
summary judgment order as a final judgment.
The dispositive issue raised in the cross-appeal is: Whether
the District Court erred in certifying its order of partial summary
judgment as a final judgment.
Standard of Review
We have stated that lV[i]t is in the discretion of the District
Court to grant or deny a request for a Rule 54(b) certification."

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Roy v. Neibauer (1980), 188 Mont. 81, 85, 610 P.2d 1185, 1188
(citations omitted). However the decision to allow an appeal to
proceed in such a situation should not be entered lightly. ROY,
610 P.2d at 1188. We review discretionary rulings to determine if
the district court abused its discretion. Montana Rail Link v.
Byard (1993), 260 Mont. 331, 337, 860 P.2d 121, 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
other form of decision, however designated, which
adjudicates less than all the claims or the rights and
liabilities of less than all the parties shall not
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
adjudicating all the claims and the rights and
liabilities of all the parties.
If a district court abuses its discretion in certifying an order as
final under Rule 54(b), we are without jurisdiction to entertain
the appeal. Reidy v. Anaconda-Deer Lodge County (1981), 196 Mont.
127, 130, 637 P.2d 1196, 1197 (citation omitted).
Rule 54(b), M.R.Civ.P., is substantially patterned after
Federal Rule 54(b). We have looked previously to federal courts'
interpretations of the federal rule for guidance in our own cases.
& ROY, 610 P.2d at 1188; citing Allis Chalmers Corp. v.
Philadelphia Electric Co. (3rd Cir. 1975), 521 F.2d 360; United
Bank of Pueblo v. Hartford Act. & Indem. Co. (10th Cir. 1976), 529

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F.Zd 490.
The defendants first argue that the District Court's order
granting partial summary judgment was a partial adjudication of a
single claim. In support, the defendants cite Sussex Drug Products
v. Kanasco, Ltd. (3rd Cir. 1990), 920 F.2d 1150, 1154, in which the
Third Circuit Court of Appeals 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 the language from Sussex Druq to the effect that in
analyzing Rule 54(b) certification issues, we will consider
alternative theories of recovery that are based on the same factual
situation as a single claim.
The defendants further argue that since the partial summary
judgment was only a partial adjudication of a single claim, the
court's order was not properly certified as a final judgment under
Rule 54(b). We would agree if it were not for the fact that there
are multiple parties to this action, & two of the three
defendants, Kindrick and Dennison, were effectively dismissed from
the case by the District Court's grant of partial summary judgment.
Before it was amended, federal Rule 54(b) applied to multiple
claims but not multiple parties. After it was amended to include
multiple party actions, the United States Supreme Court had
occasion to address Rule 54(b) in Liberty Mutual Ins. Co. v. Wetzel
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(1976), 424 U.S. 737, 96 S.Ct. 1202, 47 L.Ed.2d 435. In Liberty
Mutual, the Court noted that, following an adverse ruling in a
previous case that involved multiple parties but only one claim,
"Rule [54(b)] was amended to insure that orders finally disposing
of some but not all of the parties could be appealed pursuant to
its provisions." Libertv Mutual, 424 U.S. at 743, n. 3.
Here, the District Court's order disposes of Dennison and
Kindrick, but the University remains as a defendant in the
litigation. Because its order disposed of some, but not all, of
the parties, the District Court could conduct Rule 54(b) analysis.
However, that is only the beginning of our inquiry.
In w, we listed several factors for a district court to
consider in cases where parties seek Rule 54(b) certification.
Depending on the particular case, some or all of the factors may
bear upon the propriety of the order granting Rule 54(b)
certification. We must apply those factors to determine whether
the District Court abused its discretion. The factors listed in
Roy are:
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
not 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 setoff against the
judgment sought to be made final;
5. miscellaneous factors such as delay, economic and
solvency considerations, shortening the time of trial,
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 triviality of competing claims, expense, and the like.

Roy, 610 P.2d at 1189 (citation omitted).
Here, the District Court found that it was significant that
Weinstein's adjudicated and unadjudicated claims are legally
distinct. However, we find it more important that Weinstein's
theories all are based on the same set of facts. Thus for Rule
54(b) purposes, there is but a partial adjudication of a single
claim. This factor militates against the granting of a Rule 54(b)
certification.
The District Court did not determine whether future
developments in that court might moot the necessity of review of
the issues presently before this Court.
Next, the District Court found that it is not likely that this
Court would have to decide the same issues again if we address them
now. Weinstein alleged the same facts in each count against the
University as in his count against Dennison and Kindrick. When
Rule 54(b) certification is sought with regard to the dismissal of
two of three defendants, and the factual allegations against the
dismissed defendants overlap with the factual allegations against
the remaining defendant, the appellate court is requested to decide
issues which remain pending in the district court. The appellate
court may thus have to cover the same ground later on a direct
appeal. & N.A.A.C.P. v. American Family Mutual Ins. Co. (7th
Cir. 1992), 978 F.2d 287, 292, stating 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
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 cover the same ground when the district court acts on the
residue.
N.A.A.C.P., 978 F.2d at 292. This "overlap" factor militates
against the granting of a Rule 54(b) certification.
As the District Court correctly found, there is no possibility
of a set-off against the judgment at issue here. This factor does
not bear upon the propriety of a Rule 54(b) certification of this
case.
As to the miscellaneous factors, the District Court found that
it would be unusually harsh not to certify this case because its
order limited damages to a one-year period from Weinstein's receipt
of notice of termination. However, an order that eliminates
elements of damages flowing from a single claim does not qualify
for Rule 54(b) certification. Sussex Druq Products, 920 F.2d at
1154.
The District Court also believed that certification was
beneficial because it would "enhance opportunities to resolve the
case by settlement" and would be desirable because a decision by
this Court could be used to "control the balance of litigation in
District Court." We think it is undesirable to rely on such
considerations in determining whether to grant a Rule 54(b) motion
for certification. Such reliance leads to requests of this Court
to render advisory opinions in order to facilitate settlement or to
speed the process in district courts. We believe such advisory
opinions are beyond the scope of Rule 54(b) and we caution district
courts against the temptation to certify difficult issues to this
Court in order to provide guidance for the remainder of the case.
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 In addition, the court apparently found it significant that
Weinstein strongly opposed summary judgment and promised an
eventual appeal if Rule 54(b) certification were not granted. This
is a non-factor. Every party seeking a Rule 54(b) certification
may eventually appeal the judgment in question. If a promise of an
appeal were seriously considered in analyzing every Rule 54(b)
case, then virtually every party seeking Rule 54(b) certification
would be successful. Rule 54(b) certifications, and piecemeal
litigation, are generally disfavored. Rule 54(b) certification is
to be granted only in the "'infrequent harsh case' meriting a
favorable exercise of discretion . . . .'I Rev, 610 P.2d at 1188;
citing Allis Chalmers Core., 521 F.2d at 365.
Under the ROY factors, Weinstein failed to meet his burden of
demonstrating that this case is the infrequent harsh case. We hold
that the District Court abused its discretion in granting
Weinstein's motion for Rule 54(b) certification of the court's
partial summary judgment as a final judgment.
We conclude with these considerations for Rule 54(b) analysis.
1. Several theories based on the same set of facts are
considered as a single claim for purposes of Rule 54(b) analysis.
2. A partial adjudication of a single claim generally is not
properly certified under Rule 54(b).
3. A judgment which dismisses some but fewer than all parties
in a case involving multiple parties may be proper for
certification under Rule 54(b), depending upon the analysis of the
factors listed in w.

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 4. A case involving multiple parties in which no parties are
dismissed, and which involves a partial adjudication of a single
claim, is not proper for Rule 54(b) certification.
Because the District Court abused its discretion in certifying
its partial summary judgment order as final under Rule 54(b), we
are without jurisdiction to hear Weinstein's appeal. We reverse
the District Court's order certifying its partial summary judgment
order as a final judgment. We dismiss Weinstein's appeal without
prejudice. We reverse and remand for further proceedings.

We concur:

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