Energy Transfer LP and Dakota Access LLC v. North Dakota Private Investigative and Security Board and Tigerswan, LLC, and First Look Institute Inc.
No. 20220036
IN THE SUPREME COURT STATE OF NORTH DAKOTA
APRIL 28, 2022
2022 ND 84
McEvers, Justice
FILED IN THE OFFICE OF THE CLERK OF SUPREME COURT APRIL 28, 2022 STATE OF NORTH DAKOTA
Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Cynthia M. Feland, Judge.
AFFIRMED.
Opinion of the Court by McEvers, Justice.
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. Boughеy, 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.
Energy Transfer v. ND Private Investigative and Security Bd.
No. 20220036
[¶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
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[¶2] TigerSwan contracted with Enеrgy 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 wеre 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).
[¶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 Lоok 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 аnd held the documents constitute records for purposes of the
[¶6] Energy Transfer appealed and filed a motion in this Court to stay the district court‘s partial judgment pending this аppeal. Energy Transfer‘s motion was temporarily
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[¶7] Although the parties have not raised the district court‘s
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
[¶ 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 (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 sаme 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
“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 Commʼn 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).
[¶ 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 summary judgment order or require the issues be addressed again in a subsequеnt appeal. The court also determined judicial economy favored finality certification because, as to the lead case, the court‘s order provides final resolution of the issues concerning the Board and First Look.
[¶ 10] The court did not analyze the Rule 54(b) factors as applied to the two claims still pending between First Look and the Board in the consolidated case, which are for declaratory relief and a writ of mandamus. First Look specifically requеsted a declaration that the Board violated the law when it denied its open records request based on
[¶ 11] We are satisfied the district court did not improvidently grant Rule 54(b) certification. We agree with the district court‘s analysis as to the contract claim remaining in lead case. As to the consolidated case, the judgment on appeal answers the threshold question of whether the documents are government records. The court‘s affirmative holding on that questiоn narrows the issues in the consolidated case to the exceptions for disclosure. There is no risk of mootness or repetitive review because the question of whether a specific exception applies is independent from the issue of whether the documents constitute records at all. Were final certification of this partial judgment not granted, a holding on appeal that the documents are not records would moot the litigation in the companion case. The court‘s final certification favors judicial economy, minimizes litigation expense, and facilitates orderly disposition of the claims. We conclude the
III
[¶ 12] Energy Transfer argues the district court erred when it granted summary judgment categorically determining the documents constitute records. Energy Transfer also asserts there are genuine issues of material fact precluding summary judgment, and the court should have allowed Energy Transfer to conduct additional discovery.
[¶ 13] Our standard for reviewing a summary judgment decision is well established:
Summary judgment is a procedural device for the prompt resolution of a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. A party moving for summary judgment has the burden of showing there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. In detеrmining whether summary judgment was appropriately granted, we must view the evidence in the light most favorable to the party opposing the motion, and that party will be given the benefit of all favorable inferences which can reasonably be drawn from the record. On appeal, this Court decides whether the information available to the district court precluded the existence of a genuine issue of material fact and entitled the moving party to judgment as a matter of law. Whethеr the district court properly granted summary judgment is a question of law which we review de novo on the entire record.
Simmons v. Cudd Pressure Control, Inc., 2022 ND 20, ¶ 8, 969 N.W.2d 442 (quoting RTS Shearing, LLC v. BNI Coal, Ltd., 2021 ND 170, ¶ 11, 965 N.W.2d 40).
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[¶ 14] Energy Transfer challenges the district court‘s determination that the disputed documents constitute records. Energy Transfer asserts information must be relevant to public business and used by a public entity to be considered a government record. Energy Transfer argues the Board has not demonstrated it “used—i.e., reviewed or relied upon—the documents in connection with public business.”
[¶ 15] Under
Unless otherwise provided by law, all records of public or governmental bodies . . . or organizations or agencies supported in whole or in part by public funds, or expending public funds, shall be public records, open and accessible for inspection during reasonable office hours.
Various statutory provisions carry out this mandate. See
recorded information of any kind, regardless of the physical form or characteristic by which the information is stored, recorded, or reproduced, which is in the possession or custody of a public entity or its agent and which hаs
been received or prepared for use in connection with public business or contains information relating to public business. “Record” does not include unrecorded thought processes or mental impressions, but does include preliminary drafts and working papers. “Record” also does not include records in the possession of a court of this state.
[¶ 16] Energy Transfer claims that for material to constitute a government record “an agency must show the requisite connection to public business and/or that it reviewed, used, and relied upon the documents.” Energy Transfer claims that merely receiving a document during an investigation does not satisfy the “for use” requirement in
[¶ 17] We apply the following principles when interpreting statutes:
Our primary goal [in statutory interpretation] is to ascertain the intent of the legislature, and we first look to the plain language of the statute and give each word of the statute its ordinary meaning. When the wording of the statute is clear and free оf all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit. If, however, the statute is ambiguous or if adherence to the strict letter of the statute would lead to an absurd or ludicrous result, a court may resort to extrinsic aids, such as legislative history, to interpret the statute. A statute is ambiguous if it [is] susceptible to meanings that are different, but rational. We presume the legislature did not intend an absurd or ludicrous result or unjust consequences, and we construe statutes in a practical manner, giving consideration to the context of the statutes and the purpose for which they were enacted.
Motisi v. Hebron Pub. Sch. Dist., 2021 ND 229, ¶ 11, 968 N.W.2d 191 (quoting Wilkens v. Westby, 2019 ND 186, ¶ 6, 931 N.W.2d 229).
[¶ 18] We are not convinced by Energy Transfer‘s reading of
[¶ 19] Energy Transfer cited public record cases from other jurisdictions that it claims support a different result. Energy Transfer also relies on federal cases applying the Freedom of Information Act. We find no persuasive guidance in those cases. FOIA does not provide a definition for the term “record.” See Project on Predatory Lending of the Legal Servs. Ctr. of the Harvard Law Sch. v. United States Dep‘t of Justice, 325 F.Supp.3d 638, 648 (W.D. Pa. 2018). Rather, FOIA necessitates courts weigh various factors that have been articulated different ways to determine whether material falls within the FOIA disclosure requirements. See id. at 649 (“some courts adhere to a strict four-factor test requiring all factors to be met, others balance and weigh the four-factors, and others use a totality of the circumstances approach“); see also Judicial Watch, Inc. v. Fed. Hous. Fin. Agency, 646 F.3d 924, 926-27 (D.C. Cir. 2011) (describing a four-factor test); Reich v. United States Dep‘t of Energy, 784 F.Supp.2d 15, 21 (D. Mass. 2011) (same). Unlike courts deciding FOIA claims, we are bound by the definition of “record” under
[¶ 20] Energy Transfer argues a case where the term “public record” was defined in a manner similar to
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[¶ 21] Having determined Energy Transfer‘s interpretation of
[¶ 22] Under
all matters that relate or may foreseeably relate in any way to:
- The performance of the public entity‘s governmental functions, including any matter over which the public entity has supervision, control, jurisdiction, or advisory power; or
- The public entity‘s use of public funds.
[¶ 23] There is no dispute the Board obtained the documents through discovery during administrative proceedings concerning TigerSwan‘s provision of private investigative and security services in North Dakota. Energy Transfer asserts the documents were not responsive to the Board‘s discovery request, are not relevant to the administrative proceedings, and therefore were not received for use in connection with official or public business. We disagree. The Board is an administrative agency tasked with enforcing the licensing and regulаtion of private investigative and security services in North Dakota. See
C
[¶ 24] Energy Transfer asserts there are factual disputes that preclude the district court‘s award of partial summаry judgment. Energy Transfer claims more discovery is necessary regarding the State‘s practices concerning protective orders and returning privileged documents. Energy Transfer asserts the district court should have granted additional time to conduct discovery under
[¶ 25] Protective orders may be issued in administrative proceedings pursuant to the North Dakota Rules of Civil Procedure.
[¶ 26]
IV
[¶ 27] TigerSwan filed a “Motion tо Enforce Agreement with Board, Return of All Materials to ETP, and Dismiss Case.” TigerSwan claims the Board‘s attorney entered into an enforceable agreement to keep the documents confidential. The district court denied TigerSwan‘s motion holding it was inadequately supported.
[¶ 28] TigerSwan argues on appeal that it “should receive the benefit of the promise of confidentiality made by the Board‘s counsel.” We note TigerSwan has not addressed
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[¶ 29] First Look filed a motion to strike extra-record evidence requesting we limit our review to the certified record. Energy Transfer submitted the extra-record evidence in support of its motion for a stay. The stay was temporarily granted and was not lifted during the pendency of the appeal. Energy Transfer has not requested we rely on the extra-record evidence while determining the merits of this appeаl, and even if it had, we would not. See Discover Bank v. Bolinske, 2020 ND 228, ¶ 6, 950 N.W.2d 417 (“It is well established that this Court may not consider items outside the record.“); see also State v. Horn, 2014 ND 230, ¶ 15, 857 N.W.2d 77 (“This Court will not consider documents not in the certified record.“). Because the temporary stay remained in effect during the pendency of this appeal and is now lifted, First Look‘s motion is moot.
VI
[¶ 30] We have considered the remaining issues and arguments raised by the parties and conclude they are either without merit or unnecessary to our decision.
VII
[¶ 31] We conclude the district court did not err when it granted
[¶ 32] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte