          Filed 9/12/19 by Clerk of Supreme Court
               IN THE SUPREME COURT
                STATE OF NORTH DAKOTA

                               2019 ND 233

Susan Franciere,                                     Plaintiff and Appellant
     v.
City of Mandan,                                     Defendant and Appellee



                                No. 20190122

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.

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.
                       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 department records and
an award of damages for the City’s failure to timely provide the requested
records. The district court dismissed the action as moot because Franciere
eventually received the records she requested. We vacate the judgment and
remand for further proceedings.

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[¶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 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.

[¶3] 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



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requested records, and any other and further relief deemed just and
appropriate by the district court.

[¶4] 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.

[¶5] 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.

[¶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 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.”

[¶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
      moot. 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 already 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.


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                                       II

[¶8] The district court’s dismissal of Franciere’s action was limited to a
determination 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 N.D.R.Civ.P. 12(h). We have recognized that
under our current rules of procedure, a special appearance is no longer
necessary to contest personal jurisdiction if the lack of jurisdiction is raised
in a defendant’s answer. Kimball v. Landeis, 2002 ND 162, ¶ 20, 652
N.W.2d 330 (citing Moon v. Moon, 499 N.W.2d 597, 600-01 (N.D. 1993)
(stating civil rules no longer require special appearances and effectively
overruling Petition of Village Bd. of Wheatland, 77 N.D. 194, 42 N.W.2d 321
(1950)).

[¶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.” N.D.R.Civ.P. 12(c). In the present case the City asserted the
defenses listed under Rule 12 in its answer and, within two weeks of
answering the complaint and prior to the initial scheduling conference, filed
a motion to dismiss the case based on the defenses of insufficient service of
process and lack of personal jurisdiction. We conclude the issue of personal
jurisdiction was adequately preserved.

[¶11] This Court has recognized the elementary principle that it is essential
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 granted summary
judgment on the merits of the claim. Id. The plaintiff appealed, asserting


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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—subject 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
personal 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 also “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 personal jurisdiction before dismissing the claims with
prejudice on the grounds that they were moot.




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                                      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.




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