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Hansen v. Scott6/10/2002
regards to Defendant Robert Lawrence, [the Texas defendants] unreasonably and recklessly failed to comply with the standard of care in supervising Defendant Robert Lawrence as set forth by the applicable policies and procedures governing supervision of inmates on parole, including but not limited to, the policies and procedures required and developed by the Parole and Probation Compact Administrators' Association[,]
in developing and implementing the policies and procedures adopted and utilized by the Texas Department of Criminal Justice for determining when a parolee should be returned from a receiving state due to violations of his or her parole, [the Texas defendants] acted in an unreasonable and reckless manner in violation of the applicable standard of care.
[ ] The Texas defendants made a special appearance to contest North Dakota's exercise of personal jurisdiction over them. The trial court granted the Texas defendants' motion to dismiss for lack of personal jurisdiction under N.D.R.Civ.P. 4(b)(2)(C), concluding that, although the Texas defendants had sufficient minimum contacts with North Dakota to satisfy due process, the daughters' claims against the Texas defendants did not allege a tort because the Texas defendants did not take charge of Lawrence under Restatement (Second) of Torts ยง 319 (1965) and therefore did not have a tort duty to the daughters for Lawrence's criminal acts. The daughters' wrongful death and survivorship claims against Lawrence have not been resolved and are still pending. The trial court granted the daughters' request for certification of the dismissal of the Texas defendants as a final judgment under N.D.R.Civ.P. 54(b), and the daughters appealed.
II.
[ ] The Texas defendants argue the trial court improvidently entered a N.D.R.Civ.P. 54(b) certification. The daughters assert the Texas defendants waived their objection to the Rule 54(b) certification by not opposing the daughters' request for certification in the trial court.
[ ] We are not bound by a trial court's certification under N.D.R.Civ.P. 54(b), and we may sua sponte review the certification. Mitchell v. Sanborn, 536 N.W.2d 678, 681 (N.D. 1995). Because we may review a Rule 54(b) certification on our own motion, we reject the daughters' claim that the Texas defendants waived their objection to the certification.
[ ] Rule 54(b), N.D.R.Civ.P., authorizes a trial court to direct entry of a final judgment adjudicating fewer than all of the claims, or the rights and liabilities of fewer than all of the parties upon "express determination that there is no just reason for delay" and "express direction for the entry of judgment." We review a trial court's Rule 54(b) certification under the abuse-of-discretion standard. Nodak Mut. Farm Bur. v. Kosmatka, 2000 ND 210, 4, 619 N.W.2d 852; Symington v. Walle Mut. Ins. Co., 1997 ND 93, 5, 563 N.W.2d 400; Sickler v. Kirkwood, 1997 ND 40, 5, 560 N.W.2d 532, 533; Wyatt v. Adams, 551 N.W.2d 775, 777 (N.D. 1996); Ingalls v. Glass Unlimited, Inc., 529 N.W.2d 872, 873 (N.D. 1995); Gessner v. City of Minot, 529 N.W.2d 868, 870 (N.D. 1995); Bulman v. Hulstrand Const. Co., Inc., 503 N.W.2d 240, 241 (N.D. 1993).
[ ] The trial court's discretion must be measured against the "interest of sound judicial administration." Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 10 (1980) (quoting Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 437 (1956)). In Union State Bank v. Woell, 357 N.W.2d 234, 236 (N.D. 1984), we noted an increase in Rule 54(b) certifications and said they should not be routinely granted. We cited Allis-Chalmers Corp. v. Philadelphia Elec. Co., 521 F.2d 360, 364 (3d Cir. 1975), for
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