Franciere v. City of Mandan

• Decision Date: 29 June 2020
• Docket Number: No. 20200018,20200018
• Citation: 945 N.W.2d 251
• Parties: Susan FRANCIERE, Plaintiff and Appellant v. CITY OF MANDAN, Defendant and Appellee
• Court: North Dakota Supreme Court

945 N.W.2d 251

Susan FRANCIERE, Plaintiff and Appellant

v.CITY OF MANDAN, Defendant and Appellee

No. 20200018

Supreme Court of North Dakota.

Filed June 29, 2020

Rehearing Denied August 27, 2020

Susan Franciere, Mandan, ND, plaintiff and appellant; submitted on brief.

Scott K. Porsborg and Austin T. Lafferty, Bismarck, ND, for defendant and appellee; submitted on brief.

Crothers, Justice.

[¶1] Susan Franciere appeals the district court judgment granting the City of Mandan's motion to dismiss for lack of personal jurisdiction due to insufficient service. Franciere argues Mandan waived its personal jurisdiction claims, the district court improperly dismissed the case with prejudice, the district court erred when it denied her motion to compel discovery, and the district court judge was biased against her. We modify the judgment for dismissal without prejudice, and affirm as modified.

I

[¶2] The underlying facts were summarized in Franciere v. City of Mandan , 2019 ND 233, ¶¶ 2-6, 932 N.W.2d 907.

"On August 14, 2017, Franciere and her dog were attacked by a dog in Mandan. On August 16, 2017, she went to the Mandan Police Department, asserted her rights under Article I, § 25 of the North Dakota Constitution, and requested a copy of the police report on the incident under the open records law. On August 17, 2017, she called the police department and was informed the dog was undergoing a 10-day rabies quarantine. On August 18, 2017, Franciere sent a letter to the chief of police requesting the police report. On August 22, 2017, she received a phone call from a police lieutenant who told her she would not receive the report because the case was still active and no information would be released until the case was closed. In September 2017, she contacted the city attorney about the incident.

"On October 24, 2017, Franciere filed this action against the City alleging violations of Article I, § 25, and Article XI, § 6, of the North Dakota Constitution, and the open records law. In her complaint Franciere requested judgment providing declaratory relief that she was entitled to the records she had requested, providing a Writ of Mandamus ordering the City to immediately deliver to her a copy of the requested records, a recovery of her costs and disbursements, damages of $1,000 based on her assertion the City intentionally or knowingly violated the law when it had denied her the requested records, and any other and further relief deemed just and appropriate by the district court.

"Franciere received a redacted report of the incident from the police department on November 1, 2017. On January 13, 2018, she received an unredacted report from the police department.

"No activity is reflected in the record for an entire year following Franciere filing her complaint on October 24, 2017. On October 24, 2018, the district court sent notice that the case would be dismissed unless a request to keep the file open was filed by November 14, 2018.

"On November 14, 2018, Franciere filed a motion for summary judgment. On November 15, 2018, the City filed an answer to the complaint which included a statement the ‘Defendants assert and incorporate by reference all affirmative defenses available pursuant to Rules 8, 9, and 12 of the North Dakota and Federal Rules of Civil Procedure.’ On December 6, 2018, the City filed a response to Franciere's motion for summary judgment and initiated a cross-motion for summary judgment including an assertion the records requested were not subject to the open records law and a request to ‘dismiss this case for Insufficient Service of Process and Lack of Personal Jurisdiction.’ "

The district court declared Franciere's action moot and dismissed it with prejudice. It declined to rule on Mandan's motion to dismiss for insufficient service of process and lack of personal jurisdiction. This Court vacated the district court's judgment and remanded for determination of Mandan's motion to dismiss for insufficiency of service of process and lack of personal jurisdiction. Franciere , at ¶ 13.

[¶3] Franciere moved for an extension of time and to compel discovery. Franciere requested the district court issue an order requiring Mandan to answer Interrogatory Nos. 34 and 35 and provide particular documents. The district court granted the extension of time and denied the motion to compel. Both parties briefed the personal jurisdiction issue and the district court found Franciere did not serve process on Mandan in compliance with N.D.R.Civ.P. 4(d)(2)(E). The district court granted Mandan's motion to dismiss with prejudice.

II

[¶4] Franciere argues Mandan waived any arguments regarding personal jurisdiction. Mandan argues it properly asserted and preserved its defense.

[¶5] In Franciere v. City of Mandan , 2019 ND 233, ¶ 10, 932 N.W.2d 907, we concluded the issue of personal jurisdiction was adequately preserved. That determination is law of the case. Gadeco, LLC v. Indus. Comm'n of State , 2013 ND 72, ¶ 13, 830 N.W.2d 535. Therefore, Mandan has not waived any arguments on personal jurisdiction.

III

A

[¶6] Franciere argues the district court improperly dismissed the case for lack of personal jurisdiction due to inadequate service of process.

[¶7] Review of a district court's decision regarding personal jurisdiction over a defendant is well established:

"Analysis of a district court's ruling regarding personal jurisdiction is a question of law, which we consider under the de novo standard of review. If the defendant challenges the court's [exercise of personal] jurisdiction, the plaintiff bears the burden of proving jurisdiction exists. The plaintiff must make a prima facie showing of jurisdiction to defeat a motion to dismiss for lack of personal jurisdiction, and if the court relies only on pleadings and affidavits, the court must look at the facts in the light most favorable to the plaintiff. Questions of personal jurisdiction must be decided on a case-by-case basis, depending on the particular facts and circumstances."

Solid Comfort, Inc. v. Hatchett Hosp. Inc. , 2013 ND 152, ¶ 9, 836 N.W.2d 415 (internal citations and quotation marks omitted).

[¶8] An elementary principle for rendition of a valid judgment is that the district court have both subject matter jurisdiction over the cause of action and personal jurisdiction over the parties. See, e.g. , Smith v. City of Grand Forks , 478 N.W.2d 370, 371 (N.D. 1991).

[¶9] The holding in Smith v. City of Grand Forks , 478 N.W.2d 370 (N.D. 1991), was summarized in Franciere's prior appeal:

"Jurisdiction precedes adjudication. Before a court may say anything worth listening to regarding the (de)merits of a party's claim, that court must have authority to speak. That court has such authority only when the claim is one within the court's subject matter jurisdiction and after the court has acquired personal jurisdiction of the parties. If the court is without jurisdiction—subject matter or personal—no one is bound by anything the court may say regarding the (de)merits of the case."

Franciere , 2019 ND 233, ¶ 11, 932 N.W.2d 907.

[¶10] "A party must strictly comply with the specific requirements for service of process." Sanderson v. Walsh County , 2006 ND 83, ¶ 13, 712 N.W.2d 842. "Absent valid service of process, even actual knowledge of the existence of a lawsuit is insufficient to effectuate personal jurisdiction over a defendant." Id. ; see also Riemers v. State , 2006 ND 162, ¶ 7, 718 N.W.2d 566.

[¶11] Here, the City of Mandan was the party being served. Rule 4 of the North Dakota Rules of Civil Procedure addresses "persons subject to jurisdiction; process; and service," and states:

"(d) Personal service.

....

(2) How Service Made Within the State. Personal service of process within the state must be made as follows:

....

(E) Serving a Municipal or Public Corporation. Service must be made on a city, township, school district, park district, county, or any other municipal or public corporation, by delivering a copy of the summons to any member of its governing board."

[¶12] " ‘[D]elivering’ a copy of the summons as contemplated under N.D.R.Civ.P. 4(d)(2)(E) and 4(d)(2)(F) does not include mailing, even by certified mail with return receipt and restricted delivery." Sanderson , 2006 ND 83, ¶ 18, 712 N.W.2d 842.

[¶13] The evidence is uncontested that Franciere mailed the summons and complaint by certified mail to:

City of Mandan205 2nd Ave NWMandan, ND 58554

Personal service on a city must comply with N.D.R.Civ.P. 4(d)(2)(E) and requires delivering a copy of the summons to any member of its governing board. Absent valid service of process, even knowledge of the existence of a lawsuit is insufficient to effectuate personal jurisdiction over a defendant, and "delivery" under N.D.R.Civ.P. 4(d)(2)(E) does not include mailing, even by certified mail. See Sanderson , 2006 ND 83, ¶ 18, 712 N.W.2d 842 ; Riemers , 2006 ND 162, ¶ 7, 718 N.W.2d 566. Franciere did not properly deliver a copy of the summons, and therefore did not properly serve Mandan. As a result, the court did not acquire personal jurisdiction over Mandan and properly dismissed the case.

B

[¶14] Franciere argues the district court erred when it dismissed her case with prejudice. We agree.

[¶15] In Riemers v. State , 2006 ND 162, 718 N.W.2d 566, Riemers attempted to commence the action by serving process via certified mail with return receipt. The district court issued an order granting the dismissal for insufficient service of process. Riemers appealed, arguing he served process in accordance with the Rules of Civil Procedure. This Court held service was improper and "[a]bsent personal jurisdiction, ‘the court is powerless to do anything beyond dismissing without prejudice. ’ " Id. at ¶ 10. The Court stated, "Therefore, while the district court correctly dismissed the action, it erred doing so with prejudice." Id.

[¶16] Like Riemers , this case was correctly dismissed, but the district court erred in doing so with prejudice. We affirm dismissal for lack of...