982 N.W.2d 573
N.D.2022Background
- Pro se plaintiff LeRoy Wheeler served a summons and complaint on the North Dakota State Penitentiary (the State) but never filed the complaint with the district court or served a notice of filing.
- Wheeler moved for a "continuance" to extend time to reply to an answer that was served on him but never filed with the court.
- A pre-filing vexatious-litigant order was entered against Wheeler in December 2021 restricting him from filing new documents without prior leave of court; this order was previously affirmed on appeal.
- The district court issued a notice of intent to dismiss for failure to act; no party responded and the court dismissed the action without prejudice in February 2022.
- Wheeler sought reconsideration, claiming he did not receive the notice; the district court denied reconsideration and relied on the prior reasoning that no timely request to keep the case open was filed.
- The Supreme Court held the dismissal without prejudice and the denial of reconsideration (treated as denial of leave to file under the pre-filing order) were not appealable; the appeal was dismissed.
Issues
| Issue | Wheeler's Argument | State's Argument | Held |
|---|---|---|---|
| Appealability of dismissal without prejudice | Dismissal effectively terminates forum; statute of limitations or pre-filing order will bar refiling | Dismissal without prejudice is generally non-appealable; statute of limitations has not run | Not appealable; statute of limitations (3 years) would not bar refiling here |
| Appealability of denial of reconsideration | Motion for reconsideration should be reviewable; he did not get notice | Pre-filing order required leave to file; he did not obtain leave; denial is not appealable | Treated as denial of leave to file under pre-filing order; not appealable |
Key Cases Cited
- James Vault & Precast Co. v. B&B Hot Oil Serv., Inc., 908 N.W.2d 108 (2018) (dismissal without prejudice generally not appealable; appealable when dismissal effectively terminates forum)
- Everett v. State, 892 N.W.2d 898 (2017) (denial of leave to file is akin to dismissal without prejudice and is not appealable)
- Everett v. State, 910 N.W.2d 835 (2018) (courts must make required pre-filing determinations before ruling on filings by vexatious litigants)
- Everett v. State, 952 N.W.2d 95 (2020) (reiterating pre-filing determination requirement and non-appealability of denied leave)
- Wheeler v. State, 965 N.W.2d 416 (2021) (affirming pre-filing order and enforcing requirement to obtain leave before filing)