State of North Dakota ex rel. Wayne Stenehjem, Attorney General v. Terpsichore Maras, aka Terpsichore Maria Helen Lindeman, aka Terpischore Lindeman, aka Terpsichor Maras-Lindeman, aka Terрsichore Maras-Lindeman, aka Terpsichor Maras, aka Terpsichore P Lindeman, aka Terpsechore Maras-Lindeman, aka Tore Maras-Lindeman, aka Terpsichor Lindeman, aka Terpsechore Mаras-Lindeman, aka Terpsehore P Maras-Lindeman, aka Terpsehore Pete Maras-Lindeman, aka Terpsehore Maras-Lindeman, doing business as A Magic City Christmas, MLLabs-Events
No. 20200304
IN THE SUPREME COURT STATE OF NORTH DAKOTA
APRIL 20, 2021
2021 ND 68
FILED IN THE OFFICE OF THE CLERK OF SUPREME COURT APRIL 20, 2021 STATE OF NORTH DAKOTA
Appeal from the District Court of Ward County, North Central Judicial District, the Honorable Todd L. Cresap, Judge.
AFFIRMED.
Opinion of the Court by Tufte, Justice.
Brian M. Card, Assistant Attorney General, Office of Attorney General, Bismarck, N.D., for plaintiff and appellee; submitted on brief.
David C. Thompson, Grand Forks, N.D., for respondent and appellant; submitted on brief.
[¶1] Terpsichore Maras appeals from a default judgment issued as a sanction for discovery abuses and a judgment dismissing her counterclaim for lack of jurisdiction. We affirm the default judgment, concluding the district court did not abuse its discretion. We also affirm the judgment dismissing Maras‘s counterclaim, concluding she failed to comply with notice requirements for claims against the State of North Dakota, which are jurisdictional.
I
[¶2] The case arises out of thе Attorney General‘s investigation of Maras for violation of consumer fraud protection laws. In January 2018, in a separate case, the Attorney General sought to enforce various subpoenas he issued under his power to investigate consumer fraud. See Case No. 51-2018-CV-191; see also
[¶3] In July 2018, the Attorney General commenced the present case seeking penalties, restitution, costs, and attorney‘s fees for alleged violations of consumer fraud protection laws, as well as an injunction and cancellation of a trade name. Maras pled a counterclaim for abuse of process. She alleged she is an investigative journalist who wrote critically of the Attorney General. She asserted the Attorney General‘s investigation, which she described as a “directed multi-front administrative and judicial onslaught against her,” was designed to destrоy her credibility. She sought money damages for severe emotional distress and damage to her reputation.
[¶4] The Attorney General moved to dismiss Maras‘s counterclaim. The district court granted the motion, concluding it lacked jurisdiсtion because Maras had not complied with
[¶5] The Attorney General moved the district court to issue orders compelling Maras to comply with discovery requests. The court issued two orders to compel. In its secоnd order, the court warned Maras that her “continued failure to cooperate in discovery may result in sanctions pursuant to
[¶6] On August 7, 2020, the district court granted default judgment against Maras as a sanction for discovery abuses and defiance of its orders. The court noted she had been held in contempt in thе companion lawsuit, and it found she had not complied
II
[¶7] Maras asserts the district court erred when it dismissed her abuse of process counterclaim for lack of subject matter jurisdiction. She argues that the
[¶8] The
[¶9] The Attorney General argues we should summarily affirm the judgment because there is precedent governing the notice issue raised by Maras in this appeal. The Attorney General relies on Dickinson Air Service, Inc. v. Kadrmas, 397 N.W.2d 55, 58 (N.D. 1986) and Laufer v. Doe, 2020 ND 159, ¶¶ 14, 19, 946 N.W.2d 707. However, thosе cases concerned statutes dealing with actions for damages caused by the application of pesticide. See
[¶10] Section
A person bringing a claim against the state or a state employee for an injury shall present to the director of the office of management and budget within one hundred eighty days after the alleged injury is discovered or reasonably shоuld have been discovered a written notice stating the time, place, and circumstances of the injury . . . .
Under
[¶11] Maras‘s counterclaim sought damages based on the tort of abuse of process for the injuries of emotional distress and damage to her reputation. She sought money damages “in an amount greater than Fifty Thousand Dollars.” Her counterclaim, compulsory or otherwise, therefore falls within the plain-language definition of “any claim” because it is one for money damages against the State for an injury. Maras does not assert she provided written notice of her claim to the director of the OMB, nor is there anything in the record to indicate she did. The notice requirements set out in
III
[¶12] Maras argues the district court abused its discretion when it ordered default judgment as a sanction for discovery abuses. She asserts the Attorney General‘s discovery requests were abusive. She claims the Attorney General sought documents she either did not possess or information that the Attorney Generаl had already acquired through administrative subpoena powers in a different case.
[¶13]
[¶14] A party challenging the court‘s sanction has the burden of showing an abuse of discretion. Nelson, 2019 ND 221, ¶ 13. “A court abuses its discretion when it аcts in an arbitrary, unreasonable, or unconscionable manner, it misinterprets or misapplies the law, or when its decision is not the product of a rational mental process leading to a reasoned determination.” Id. A party challenging the imposition of sanctions meets his or her burden “only when it is clear that no reasonable person would agree with the trial court‘s assessment of what sanctions are appropriate.” Id.
[¶15] The district сourt found Maras “consistently ignored” its discovery orders deliberately and in bad faith:
Based upon [Maras‘s] failure to comply with the Court‘s past orders compelling discovery, her failure to respond to the Court‘s most recent order, her consistent disregard of the State‘s discovery requests, and her willful failure to produce any responsive documents in this matter, the Court finds that [Maras‘s] non-compliance is deliberate and in bad faith. [Maras‘s] disregard for the rulеs of discovery has been a constant refrain from the first filing of this matter, and it has become clear to the Court she has no intention of complying with past or future discovery orders.
As she argued to the district court, Maras maintains on appeal that her non-compliance was permissible because the discovery requests were for “documents and information of which she was not in possession.” However, the district court found Maras did not respоnd to “requests for documents that are clearly in her control, including tax documents, banking records, online accounts, e-mail communications, and recordings she already admitted to creating.” The record supports the court‘s finding.
[¶16] Maras also maintains that the Attorney General‘s discovery requests were abusive because they were duplicative of information the Attorney General had already acquired through administrative subpoena powers. Even if some documents were duplicative, that would not excuse her non-compliance with the district court‘s orders. See Nelson, 2019 ND 221, ¶ 13 (“even when a
[¶17] The district court gave Maras multiple warnings and ample opportunity to comply with its discovery orders, and she did not do so. See Nelson, 2019 ND 221, ¶ 19 (affirming the striking of claims as a sanction for discovery abuses when the district court gave plaintiff “multiple opportunities to comply and he refused“). The record supports the court‘s finding that Maras‘s non-compliance was deliberate and in bad faith. We hold the district court did not abuse its discretion when it ordered default judgment as a sanction for discovery abuses.
IV
[¶18] The Attorney General has filed a “Motion for Summary Affirmance” and a motion to strike various factual allegations in Maras‘s briefing on appeal. We deny both motions.
V
[¶19] We affirm the default judgment and the judgment dismissing Maras‘s counterclaim.
[¶20] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte