Susan Franciere, Plaintiff and Appellant v. City of Mandan, Defendant and Appellee
No. 20190122
IN THE SUPREME COURT STATE OF NORTH DAKOTA
9/12/19
2019 ND 233
Jensen, Justice.
Appeal from the District Court of Morton County, South Central Judicial District, the Honorable James S. Hill, Judge.
VACATED AND REMANDED.
Opinion of the Court by Jensen, Justice.
Scott K. Porsborg and Austin T. Lafferty, Bismarck, ND, for defendant and aрpellee; submitted on brief.
Franciere v. City of Mandan
No. 20190122
Jensen, Justice.
[¶1] Susan Franciere appeals from a judgment dismissing her action against the City of Mandan seeking to obtain police deрartment records and an award of damages for the City’s failure to timely provide the requested records. The district court dismissed the action as moоt because Franciere eventually received the records she requested. We vacate the judgment and remand for further proceedings.
I
[¶2] 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
[¶3] On October 24, 2017, Franciere filed this action against the City alleging violations of
[¶4] Franciere received a redacted report of the incident from the police department on November 1, 2017. On January 13, 2018, she receivеd an unredacted report from the police department.
[¶5] No activity is reflected in the record for an entire year following Francierе 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 opеn was filed by November 14, 2018.
[¶6] 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 thе “Defendants assert and incorporate by reference all affirmative defenses available pursuant to Rules 8, 9, and 12 of the North Dakota and Fеderal 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.”
[¶7] Relying on Gosbee v. Bendish, 512 N.W.2d 450 (N.D. 1994), the district court dismissed the action with prejudice finding as follows:
Similarly here, this Court determines this case to be moоt. Franciere was provided
with an unredacted copy of the requested report on January 12, 2018. Franciere seeks declaratory relief, which would require this Court to issue an advisory opinion. Furthermore, Franciere seeks a Writ of Mandamus ordering the City to turn over the report. As Franciere alrеady has a copy of the requested report, there is nothing for this Court to do.
This Court declines to rule on whether personal jurisdiction over the City exists and whether the requested record was exempt from open records requests.
II
[¶8] The district court’s dismissal of Franciere’s action was limited to a detеrmination that Franciere’s claims were rendered moot by the City providing her with the requested documents. The court specifically declined to rule on the City’s motion to dismiss the proceedings for insufficient service of process and lack of personal jurisdiction.
[¶9] A party may preserve the defenses of insufficient service of process and lack of personal jurisdiction either by motion or inclusion in a timely responsive pleading. See
[¶10] A motion for a judgment on the pleadings under Rule 12 is timely if it is brought “[a]fter the pleadings are closed—but early enough not to delay trial.”
[¶11] This Court has recognized the elementary principle that it is еssential to the rendition of a valid judgment 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). In Smith, the district court granted the defendant’s motion to dismiss for lack of sufficient service of process and also grantеd summary judgment on the merits of the claim. Id. The plaintiff appealed, asserting the district court was precluded from ruling on the merits of the action once it had concluded there was a lack of personal jurisdiction over the defendant. Id. We agreed, affirmed the dismissal of the action for lack of personal jurisdiction, and vacated the portion of the judgment granting summary judgment on the merits of the claim. Id. at 373. We summarized our holding in Smith with the following quote:
“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—subjeсt matter or personal—no one is bound by anything the court may say regarding
the (de)merits of the case.” [Emphasis in original.]
Id. (quoting Petters v. Petters, 560 So.2d 722, 723 (Miss. 1990)). See also Western Life Trust v. State, 536 N.W.2d 709, 712 (N.D. 1995) (court could not rule on merits and dismiss with prejudice after determining it lacked pеrsonal jurisdiction because of insufficient service of process; court was powerless to do anything beyond dismissing without prejudice).
[¶12] Here, the district court declined to rule on the City’s motion to dismiss the action for insufficiency of service and lack of personal jurisdiction. Like jurisdiction, mootness is alsо “a threshold issue we decide before reaching the merits of the case.” Bland v. Comm’n on Medical Competency, 557 N.W.2d 379, 381 (N.D. 1996). Because a determination of subject matter and personal jurisdiction must precede any dismissal with prejudice, the court was required to resolve the motion to dismiss for insufficiency of service and lack of persоnal jurisdiction before dismissing the claims with prejudice on the grounds that they were moot.
III
[¶13] We vacate the judgment of the district court and remand this case for a determination of the City’s motion to dismiss for insufficiency of service of process and lack of personal jurisdiction.
[¶14]
Jon J. Jensen
Lisa Fair McEvers
Daniel J. Crothers
Jerod E. Tufte
Gerald W. VandeWalle, C.J.