Energy Transfer LP v. N.D. Private Investigative & Sec. Bd.

Decision Date28 April 2022
Docket Number20220036
Parties ENERGY TRANSFER LP and Dakota Access LLC, Plaintiffs and Appellants v. NORTH DAKOTA PRIVATE INVESTIGATIVE AND SECURITY BOARD and TigerSwan, LLC, Defendants and Appellees and First Look Institute Inc., Intervenor and Appellee
CourtNorth Dakota Supreme Court

Jennifer S. Recine (argued), New York, NY, Shawn A. Grinolds (appeared), Bismarck, ND, Randall J. Bakke (on brief), Bismarck, ND, and Thomas B. Kelly (on brief), New York, NY, for plaintiffs and appellants.

Courtney R. Titus, Bismarck, ND, for defendant and appellee North Dakota Private Investigative and Security Board.

Lynn M. Boughey, Mandan, ND, for defendant and appellee TigerSwan, LLC.

Timothy Q. Purdon (argued), Bismarck, ND, Victoria J. Noble (appeared), New York, NY, David Bralow (appeared), New York, NY, for intervenor and appellee.

Jack McDonald Jr., Bismarck, ND, for Reporters Committee for Freedom of the Press, the North Dakota Newspaper and Association, and Forum Communications Company, amicus curiae, submitted on brief .

McEvers, Justice.

[¶1] Energy Transfer LP and Dakota Access LLC (together "Energy Transfer") appeal from an order for partial summary judgment certified as final by the district court. The court held documents the North Dakota Private Investigative and Security Board received in response to discovery requests in an administrative proceeding against TigerSwan, LLC fall within the N.D.C.C. ch. 44-04 and 54-46 provisions dealing with government records. We conclude the court did not abuse its discretion in certifying the partial summary judgment as final under N.D.R.Civ.P. 54(b), and it did not err in granting partial summary judgment. We affirm.

I

[¶2] TigerSwan contracted with Energy Transfer to provide services related to the Dakota Access Pipeline. The Board commenced administrative proceedings against TigerSwan alleging it provided investigative and security services in North Dakota without a license. TigerSwan was compelled to disclose documents to the Board, some of which are the focus of this appeal. Energy Transfer filed a motion to intervene in the administrative proceedings claiming roughly 16,000 documents TigerSwan disclosed were confidential. Energy Transfer sought to intervene for the purpose of compelling the return of the documents and to obtain a protective order. Energy Transfer's motion was denied and is the subject of the appeal in Energy Transfer LP v. North Dakota Private Investigative & Security Board (Docket No. 20210244, Dist. Ct. Case No. 08-2020-cv-03049) 973 N.W.2d 394.

[¶3] Energy Transfer commenced this action after its unsuccessful attempt to intervene in the administrative proceeding. Energy Transfer alleged the Board produced "certain" documents in response to an open records request. Energy Transfer requested an injunction requiring the Board and TigerSwan to "keep confidential and not produce to any third party the documents that are the subject of this complaint" and requiring the Board and TigerSwan to return the documents. Energy Transfer also brought claims for conversion and immediate delivery of the documents against the Board and a claim for breach of contract against TigerSwan. The district court granted a temporary restraining order requiring the documents be kept confidential.

[¶4] First Look Institute commenced a separate suit against the Board requesting a declaration that the Board violated various laws when it denied First Look's open record request concerning the disputed documents. See First Look Media Works, Inc. v. N.D. Investigative Review and Sec. Bd. , Case No. 08-2020-CV-3093. First Look sought an order requiring the Board to release all of the documents "not subject to independent exemptions determined on a document-by-document basis." The district court consolidated First Look's case with Energy Transfer's case.

[¶5] TigerSwan filed a "Motion to Enforce Agreement with Board, Return of All Materials to ETP, and Dismiss Case." TigerSwan's motion sought enforcement of a promise the Board's attorney allegedly made to keep the documents confidential. The Board, First Look, and Energy Transfer all filed cross motions for summary judgment. Energy Transfer responded to the motions, in part, with a declaration asserting additional discovery was necessary. The district court denied Energy Transfer's request and held the documents constitute records for purposes of the N.D.C.C. ch. 44-04 open records laws and the N.D.C.C. ch. 54-46 document retention laws "[a]bsent a specific exception." The court also denied TigerSwan's motion to dismiss concluding it was inadequately supported. The court dismissed Energy Transfer's claims for delivery, conversion, and injunction, withdrew the temporary restraining order, and certified the partial judgment as final pursuant to N.D.R.Civ.P. 54(b).

[¶6] Energy Transfer appealed and filed a motion in this Court to stay the district court's partial judgment pending this appeal. Energy Transfer's motion was temporarily granted and the stay remains in place pending appeal. First Look has filed a motion to strike documents not in the record.

II

[¶7] Although the parties have not raised the district court's N.D.R.Civ.P. 54(b) certification as an issue, we must ensure we have jurisdiction when an interlocutory appeal is taken and that the requirements of Rule 54(b) have been met. PLS Servs., LLC v. Valueplus Consulting, LLC , 2021 ND 99, ¶ 7, 960 N.W.2d 780. " ‘Only judgments and decrees which constitute a final judgment of the rights of the parties to the action and orders enumerated by statute are appealable.’ " Eubanks v. Fisketjon , 2021 ND 124, ¶ 4, 962 N.W.2d 427 (quoting Brummund v. Brummund , 2008 ND 224, ¶ 5, 758 N.W.2d 735 ). We lack jurisdiction if there is no statutory basis for an appeal. Dellinger v. Wolf , 2020 ND 112, ¶ 5, 943 N.W.2d 772. We apply the following analysis when determining whether an interlocutory order is appealable:

First, the order appealed from must meet one of the statutory criteria of appealability set forth in NDCC § 28-27-02. If it does not, our inquiry need go no further and the appeal must be dismissed. If it does, then Rule 54(b), NDRCivP, must be complied with. If it is not, we are without jurisdiction.

Id. at ¶ 8 (quoting Ziegler v. Meadowbrook Ins. Grp., Inc. , 2009 ND 192, ¶ 11, 774 N.W.2d 782 ). The partial judgment in this case dismisses three of Energy Transfer's claims on the merits. Thus there is a statutory basis for the appeal under N.D.C.C. § 28-27-02. The first prong of our test is satisfied. We must now determine whether the district court complied with N.D.R.Civ.P. 54(b).

[¶8] " ‘A Rule 54(b) certification should not be routinely granted and is reserved for cases involving unusual circumstances where failure to allow an immediate appeal would create a demonstrated prejudice or hardship.’ " PLS Servs., 2021 ND 99, ¶ 9, 960 N.W.2d 780 (quoting Citizens State Bank-Midwest v. Symington , 2010 ND 56, ¶9, 780 N.W.2d 676 ). Rule 54(b), N.D.R.Civ.P., provides:

If an action presents more than one claim for relief, whether as a claim, counterclaim, crossclaim, or third-party claim, or if multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.

When determining whether Rule 54(b) certification is appropriate, the court should consider the following factors:

(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 setoff against the judgment sought to be made final; (5) miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like.

City of West Fargo v. McAllister , 2021 ND 136, ¶ 8, 962 N.W.2d 591 (quoting Capps v. Weflen , 2013 ND 16, ¶ 8, 826 N.W.2d 605 ). We review a decision to grant N.D.R.Civ.P. 54(b) certification for an abuse of discretion. McAllister , at ¶ 6. "A court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, when its decision is not the product of a rational mental process leading to a reasoned determination, or when it misinterprets or misapplies the law." Id.

"We have recognized that a Rule 54(b) certification may be appropriate if the certified judgment completely decides an entire claim." Symington , 2010 ND 56, ¶ 10, 780 N.W.2d 676. "We have also held that a district court does not abuse its discretion in granting a Rule 54(b) certification if the issues raised in the appeal will not be mooted by future developments in the district court." Id. (citing Public Service Comm'n v. Wimbledon Grain Co. , 2003 ND 104, ¶ 12, 663 N.W.2d 186 ; Hansen v. Scott , 2002 ND 101, ¶ 15, 645 N.W.2d 223 ; Symington v. Walle Mut. Ins. Co. , 1997 ND 93, ¶ 8, 563 N.W.2d 400 ).

PLS Servs. , at ¶ 10.

[¶9] There are three remaining claims among these two consolidated cases. The first is a breach of contract claim between Energy Transfer and TigerSwan in the lead case. The remaining two claims are between First Look and the Board in the consolidated case. The district court found the contract claim in the lead case presents a "completely separate issue" that will not moot the questions answered in its partial...

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