                  Filed 6/29/20 by Clerk of Supreme Court

                   IN THE SUPREME COURT
                   STATE OF NORTH DAKOTA

                                2020 ND 143



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



                                No. 20200018

Appeal from the District Court of Morton County, South Central Judicial
District, the Honorable James S. Hill, Judge.

AFFIRMED AS MODIFIED.

Opinion of the Court by Crothers, 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. 20200018

Crothers, Justice.

[¶1] Susan Franciere appeals the district court judgment granting the City of
Mandan’s motion to dismiss for lack of personal jurisdiction due to insufficient
service. Franciere argues Mandan waived its personal jurisdiction claims, the
district court improperly dismissed the case with prejudice, the district court
erred when it denied her motion to compel discovery, and the district court
judge was biased against her. We modify the judgment for dismissal without
prejudice, and affirm as modified.

                                         I

[¶2] The underlying facts were summarized in Franciere v. City of Mandan,
2019 ND 233, ¶¶ 2-6, 932 N.W.2d 907.

             “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.
             “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


                                         1
      denied her the requested records, and any other and further relief
      deemed just and appropriate by the district court.
            “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.
            “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.
            “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.’”

The district court declared Franciere’s action moot and dismissed it with
prejudice. It declined to rule on Mandan’s motion to dismiss for insufficient
service of process and lack of personal jurisdiction. This Court vacated the
district court’s judgment and remanded for determination of Mandan’s motion
to dismiss for insufficiency of service of process and lack of personal
jurisdiction. Franciere, at ¶ 13.

[¶3] Franciere moved for an extension of time and to compel discovery.
Franciere requested the district court issue an order requiring Mandan to
answer Interrogatory Nos. 34 and 35 and provide particular documents. The
district court granted the extension of time and denied the motion to compel.
Both parties briefed the personal jurisdiction issue and the district court found
Franciere did not serve process on Mandan in compliance with N.D.R.Civ.P.
4(d)(2)(E). The district court granted Mandan’s motion to dismiss with
prejudice.




                                       2
                                        II

[¶4] Franciere argues Mandan waived any arguments regarding personal
jurisdiction. Mandan argues it properly asserted and preserved its defense.

[¶5] In Franciere v. City of Mandan, 2019 ND 233, ¶ 10, 932 N.W.2d 907, we
concluded the issue of personal jurisdiction was adequately preserved. That
determination is law of the case. Gadeco, LLC v. Indus. Comm’n of State, 2013
ND 72, ¶ 13, 830 N.W.2d 535. Therefore, Mandan has not waived any
arguments on personal jurisdiction.

                                       III

                                        A

[¶6] Franciere argues the district court improperly dismissed the case for lack
of personal jurisdiction due to inadequate service of process.

[¶7] Review of a district court’s decision regarding personal jurisdiction over
a defendant is well established:

      “Analysis of a district court’s ruling regarding personal jurisdiction
      is a question of law, which we consider under the de novo standard
      of review. If the defendant challenges the court’s [exercise of
      personal] jurisdiction, the plaintiff bears the burden of proving
      jurisdiction exists. The plaintiff must make a prima facie showing
      of jurisdiction to defeat a motion to dismiss for lack of personal
      jurisdiction, and if the court relies only on pleadings and affidavits,
      the court must look at the facts in the light most favorable to the
      plaintiff. Questions of personal jurisdiction must be decided on a
      case-by-case basis, depending on the particular facts and
      circumstances.”

Solid Comfort, Inc. v. Hatchett Hosp. Inc., 2013 ND 152, ¶ 9, 836 N.W.2d 415
(internal citations and quotation marks omitted).

[¶8] An elementary principle for rendition of a valid judgment is that the
district court have both subject matter jurisdiction over the cause of action and




                                        3
personal jurisdiction over the parties. See, e.g., Smith v. City of Grand Forks,
478 N.W.2d 370, 371 (N.D. 1991).

[¶9] The holding in Smith v. City of Grand Forks, 478 N.W.2d 370 (N.D.
1991), was summarized in Franciere’s prior appeal:

      “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.”

Franciere, 2019 ND 233, ¶ 11, 932 N.W.2d 907.

[¶10] “A party must strictly comply with the specific requirements for service
of process.” Sanderson v. Walsh County, 2006 ND 83, ¶ 13, 712 N.W.2d 842.
“Absent valid service of process, even actual knowledge of the existence of a
lawsuit is insufficient to effectuate personal jurisdiction over a defendant.” Id.;
see also Riemers v. State, 2006 ND 162, ¶ 7, 718 N.W.2d 566.

[¶11] Here, the City of Mandan was the party being served. Rule 4 of the North
Dakota Rules of Civil Procedure addresses “persons subject to jurisdiction;
process; and service,” and states:

      “(d) Personal service.
      ....
      (2) How Service Made Within the State. Personal service of process
      within the state must be made as follows:
      ....
      (E) Serving a Municipal or Public Corporation. Service must be
      made on a city, township, school district, park district, county, or
      any other municipal or public corporation, by delivering a copy of
      the summons to any member of its governing board.”

[¶12] “‘[D]elivering’ a copy of the summons as contemplated under
N.D.R.Civ.P. 4(d)(2)(E) and 4(d)(2)(F) does not include mailing, even by


                                        4
certified mail with return receipt and restricted delivery.” Sanderson, 2006 ND
83, ¶ 18, 712 N.W.2d 842.

[¶13] The evidence is uncontested that Franciere mailed the summons and
complaint by certified mail to:

      City of Mandan
      205 2nd Ave NW
      Mandan, ND 58554

Personal service on a city must comply with N.D.R.Civ.P. 4(d)(2)(E) and
requires delivering a copy of the summons to any member of its governing
board. Absent valid service of process, even knowledge of the existence of a
lawsuit is insufficient to effectuate personal jurisdiction over a defendant, and
“delivery” under N.D.R.Civ.P. 4(d)(2)(E) does not include mailing, even by
certified mail. See Sanderson, 2006 ND 83, ¶ 18, 712 N.W.2d 842; Riemers,
2006 ND 162, ¶ 7, 718 N.W.2d 566. Franciere did not properly deliver a copy
of the summons, and therefore did not properly serve Mandan. As a result, the
court did not acquire personal jurisdiction over Mandan and properly
dismissed the case.

                                       B

[¶14] Franciere argues the district court erred when it dismissed her case with
prejudice. We agree.

[¶15] In Riemers v. State, 2006 ND 162, 718 N.W.2d 566, Riemers attempted
to commence the action by serving process via certified mail with return
receipt. The district court issued an order granting the dismissal for
insufficient service of process. Riemers appealed, arguing he served process in
accordance with the Rules of Civil Procedure. This Court held service was
improper and “[a]bsent personal jurisdiction, ‘the court is powerless to do
anything beyond dismissing without prejudice.’” Id. at ¶ 10. The Court stated,
“Therefore, while the district court correctly dismissed the action, it erred
doing so with prejudice.” Id.




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[¶16] Like Riemers, this case was correctly dismissed, but the district court
erred in doing so with prejudice. We affirm dismissal for lack of personal
jurisdiction as modified to dismiss without prejudice.

                                         IV

[¶17] Franciere argues the district court erred when it denied her motion to
compel discovery.

[¶18] A “district court has broad discretion regarding the scope of discovery,
and the court’s discovery decisions will not be reversed on appeal unless the
court abuses its discretion.” Krueger v. Grand Forks Cty., 2014 ND 170, ¶ 13,
852 N.W.2d 354 (citing Lynch v. New Pub. Sch. Dist. No. 8, 2012 ND 88, ¶ 23,
816 N.W.2d 53). “A court abuses its discretion when it acts in an arbitrary,
unreasonable, or unconscionable manner, when 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. “‘An abuse of discretion by the district
court is never assumed, and the burden is on the party seeking relief
affirmatively to establish it.’” Id. (quoting Leno v. K & L Homes, Inc., 2011 ND
171, ¶ 23, 803 N.W.2d 543). The party seeking relief must show that the court
positively abused its discretion and not that the court made a “poor” decision.
Krueger, at ¶ 13 (citing Lynch, at ¶ 23).

[¶19] Here, the district court stated:

             “Plaintiff Franciere clearly misunderstands the Amended
      Order of this Court dated October 4, 2019[,] [DE 89] and appears
      not to have read closely the specific remand language of Franciere
      v. City of Mandan, 2019 ND 233 at ¶ 13. In apparent response to
      the specific directive of this Court Plaintiff Franciere ignore[d] the
      directive of this Court and instead files two motions, a Motion to
      Compel [DE 90] and a Motion for Extension of Time. [DE 103]
             “Plaintiff Franc[]iere is attempting to take advantage of the
      very specific remand directed by the North Dakota Supreme Court
      in order to pursue discovery motions. . . . The reasons she offers for
      an extension [DE 104] are nothing more than a request to delay
      the process in order to conduct discovery on what she believes are



                                          6
      remaining substantive issues in her case. That was not the
      mandate upon remand by the North Dakota Supreme Court.
            ....
            “She completely ignored briefing the specific issues on
      remand, specifically ‘a determination of the City’s motion to
      dismiss for insufficiency of service of process and lack of
      personal jurisdiction.’
            ....
            “This Court intends to do exactly what Justice Jensen has
      directed in his opinion. It will make ‘a determination of the
      City’s motion to dismiss for insufficiency of service of
      process and lack of personal jurisdiction.’ [emphasis added]
      Franciere v. City of Mandan, 2019 ND 233 at ¶ 13. And that
      determination can be made on the record and based upon legal
      argument presented by the parties. It is not dependent on factual
      discovery.”

[¶20] We remanded the case to determine personal jurisdiction. Franciere,
2019 ND 233, 932 N.W.2d 907. Therefore, the district court had no legal
authority to determine anything other than the jurisdiction question. Smith,
478 N.W.2d 370, 371, 373 (N.D. 1991); see King v. Menz, 75 N.W.2d 516, 521
(N.D. 1956) (“There being no service on the defendant the trial court had no
jurisdiction to make any order in regard to the issue raised by the complaint.”).
Until jurisdiction is decided, the court can only determine issues regarding
jurisdiction. This includes resolving discovery requests if aimed at resolving
that question. Smith, at 373.

[¶21] In the brief supporting her motion to compel jurisdictional discovery
Franciere requested the district court order that Mandan provide answers for
Interrogatory Nos. 34 and 35 and provide documents. Interrogatory No. 34
requested, “Identify all individual(s) with the City who gave approval to use of
the services of SPSAM & S for the above-titled action against the City.”
Interrogatory No. 35 requested, “Identify all individual(s) with the City who
discussed with SPSAM & S the above-titled action against the City.” Franciere
also requested Mandan, “Produce all [d]ocuments identifying who gave
approval to retain the services of SPSAM & S for this civil action,” and




                                       7
“[p]roduce all [d]ocuments listing the fees and any other costs approved for
services by SPSAM & S for this civil action.”

[¶22] These discovery requests do not relate to personal jurisdiction, therefore
the district court did not abuse its discretion by denying Franciere’s motion to
compel discovery.

                                       V

[¶23] Franciere alleges multiple instances of misconduct by the district court.
These claims are made for the first time on appeal.

[¶24] “The purpose of an appeal is to review the actions of the trial court, not
to grant the appellant an opportunity to develop and expound upon new
strategies or theories.” Spratt v. MDU Res. Grp., Inc.¸ 2011 ND 94, ¶ 14, 797
N.W.2d 328 (internal citations and quotation marks omitted). “We have
repeatedly held that issues not raised in the trial court cannot be raised for the
first time on appeal. The failure to raise the issue of judicial bias in the trial
court precludes our review on appeal.” Molitor v. Molitor, 2006 ND 163, ¶ 12,
718 N.W.2d 13 (citing Wenzel v. Wenzel, 469 N.W.2d 156, 158 (N.D. 1991).
Because alleged judicial bias was not raised in the district court, we will not
address it for the first time on appeal.

                                       VI

[¶25] We affirm the judgment granting dismissal based on lack of personal
jurisdiction due to insufficient service as modified to dismiss without prejudice,
affirm the denial of Franciere’s motion to compel discovery, and decline to
address the misconduct issue raised for the first time on appeal.

[¶26] Daniel J. Crothers
      Jerod E. Tufte
      Gerald W. VandeWalle
      Jon J. Jensen, C.J.
      Lisa Fair McEvers




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