MERVIN GUNDERSON and PATRICIA GUNDERSON, husband and wife, and ALL SECURE, INC., Plaintiffs/Appellants,
LIBERTY MUTUAL INSURANCE and THE OHIO CASUALTY INSURANCE COMPANY and CENTRAL INSURANCE AGENCY, Defendants/Appellees.
Mervin Gunderson, Patricia Gunderson, and All Secure, Inc.
(collectively "Gundersons"), filed suit against
Liberty Mutual Insurance, the Ohio Casualty Insurance Company
("OCIC"), and Central Insurance Agency
("CIA"). On December 14, 2018, the Eighteenth
Judicial District Court, Gallatin County, entered its Order
on Summary Judgment in favor of OCIC. OCIC then filed a request
for entry of judgment and, on December 19, 2018, the District
Court entered Judgment in favor of OCIC. On December 20,
2018, OCIC filed and served a Notice of Entry of Final
Judgment On January 22, 2019, Gundersons filed their Notice
of Appeal to this Court.
also naming CIA in its Complaint, Gundersons did not serve
CIA until December 20, 2018, after the District Court had
entered Judgment in favor of OCIC. On January 8, 2019, CIA
made its first appearance before the District Court and moved
to dismiss Gundersons' claims against it. On January 19,
2019, Gundersons filed a motion in the District Court to
bifurcate the claim against CIA.
move to stay this appeal pending the District Court's
resolution on its motion to bifurcate. Gundersons argue that
this appeal should be stayed, rather than dismissed, because
the District Court's Judgment and OCIC's Notice of
Entry of Final Judgment are premature. OCIC argues
Gundersons' Motion to Stay should be denied, and that
this appeal should proceed, because the District Court's
Judgment was a final judgment that adjudicated all claims
between all parties and did not require certification
pursuant to M. R. Civ. P. 54(b)(1). Although this matter has
not been squarely addressed in Montana, OCIC argues that the
majority of federal appellate courts and state courts hold
that unserved defendants, such as CIA, are not considered
"parties" for the purposes of M. R. Civ. P.
54(b)(1). Therefore, OCIC argues that the District
Court's Judgment does not lack finality for appeal merely
because a claim against CIA as an unserved defendant remains.
argues that Gundersons' Motion to Stay should be denied,
and that this appeal should be dismissed without prejudice,
because the Gundersons failed to seek certification under M.
R. Civ. P. 54(b)(1). CIA notes that it filed its Motion to
Dismiss in the District Court on January 8, 2019, prior to
the Gundersons' Notice of Appeal on January 22, 2019. CIA
acknowledges that most federal appellate courts and state
courts hold that unserved defendants are not litigants for
purposes of determining the appealability of an order under
the final judgment rule; however, CIA argues that this matter
is different because it appeared and filed its Motion to
Dismiss in the District Court before Gundersons appealed to
this Court. Therefore, CIA argues it cannot be assumed that
the District Court's Order on Summary Judgment or entry
of judgment concluded the case. See Patchick v.
Kensington Pub. Corp., 743 F.2d 675, 677 (9th Cir. 1984)
("When, however, defendants remain in the action upon
whom service has been made, we cannot assume that the action
is final."). Accordingly, CIA argues that the District
Court's Order on Summary Judgment and entry of Judgment
leave matters of litigation against CIA undetermined and,
thus, neither the District Court's Order nor Judgment can
be classified as an appealable final order or judgment
pursuant to M. R. App. P. 4(1)(a) and M. R. App. P. 6(5)(a).
App. P. 4(a)(1) provides that a final judgment
"conclusively determines the rights of the parties and
settles all claims in controversy in an action or proceeding
. . . ." M. R. App. P. 6(5)(a) further provides that in
cases involving multiple parties or claims for relief, an
order or judgment which adjudicates fewer than all claims as
to all parties and leaves matters in the litigation
undetermined, which is not certified as final by the district
court for the purposes of appeal, is not appealable.
not been served, appeared, and moved to dismiss
Gundersons' claims against it before Gundersons appealed
the Judgment in favor of OCIC, OCIC's argument that the
District Court's Judgment was a final judgment that
adjudicated all claims between all parties and did not
require certification might be well taken. However, given the
procedural posture of this case at the time Gundersons
appealed, the District Court's Order on Summary Judgment
and its entry of Judgment in favor of OCIC only decided those
claims against OCIC, while claims against CIA, who had
appeared, remained undetermined. Therefore, IT IS ORDERED
that Gundersons' Motion to Stay is DENIED.
FURTHER ORDERED that Gundersons' appeal is DISMISSED
WITHOUT PREJUDICE as prematurely filed.
Clerk is directed to provide copies of this Order to all
counsel of record, and to the Honorable John Brown, presiding
District Court Judge.
 Gundersons named "Liberty Mutual
Insurance" as a Defendant in this action; however,
"Liberty Mutual Insurance" is a trade name, not a
corporate entity, and it did not ...