Bolinske v. Sandstrom

Summary

The North Dakota Supreme Court reviewed the dismissal of Robert V. Bolinske’s claims against former Justice Dale Sandstrom and former Judge Gail Hagerty. The court affirmed dismissal of most claims, including due process and several tort claims, but reversed dismissal of the defamation claim based on the statute of limitations, vacated the attorney-fee award, and remanded for further proceedings.

Holdings

1. A person asserting an injury claim against the State or a state employee must present a written notice of claim to the director of the Office of Management and Budget within 180 days after discovering or reasonably discovering the injury. The district court lacks subject matter jurisdiction over claims subject to the statute when the notice is untimely.
2. A prior dismissal for lack of subject matter jurisdiction is not an adjudication on the merits and does not trigger claim or issue preclusion.
3. Bolinske's procedural due process claim challenging the disciplinary process was barred by res judicata because the North Dakota Supreme Court had previously determined that his procedural due process rights were not violated in the same disciplinary matter.
4. Under N.D.R. Lawyer Discipl. 6.5, claims based on communications relating to lawyer misconduct or disability, or testimony in a disciplinary proceeding, are barred when asserted against a complainant or witness.
5. Under N.D.C.C. § 28-01-39, the objection that an action was not commenced within the statutory period must be taken by answer; it may not be raised solely through a pre-answer motion to dismiss.
6. The court declined to decide in the first instance whether Sandstrom's statements were nondefamatory protected opinions or otherwise privileged.
7. A request for additional discovery under N.D.R.Civ.P. 56(f) requires the proponent to identify specifically the information sought, how it would preclude summary judgment, and why it was not previously obtained; the district court's ruling is reviewed for abuse of discretion.
8. The attorney's-fee award had to be vacated because the district court relied in part on the erroneous conclusion that the federal action precluded Bolinske's claims and because the defamation claim was being remanded for further proceedings.

Questions Presented

1. Whether Bolinske timely filed the statutory notice of claim required for claims against the State Defendants and whether the untimely notice deprived the district court of subject matter jurisdiction over the affected claims.
2. Whether the related federal action barred Bolinske's state claims under claim or issue preclusion when the federal action was dismissed for lack of subject matter jurisdiction and without prejudice.
3. Whether Bolinske's procedural due process claim was barred by the prior North Dakota Supreme Court decision affirming the disciplinary proceeding.
4. Whether communications related to the lawyer-disciplinary process were privileged under N.D.R. Lawyer Discipl. 6.5.
5. Whether the district court properly dismissed the defamation claim under the statute of limitations when the State Defendants had not pleaded that defense by answer.
6. Whether the appellate court should decide in the first instance whether Sandstrom's statements were nondefamatory protected opinions.
7. Whether the district court abused its discretion by denying additional discovery under N.D.R.Civ.P. 56(f).
8. Whether the attorney's-fee award should stand after the court partially reversed the judgment and rejected the district court's res judicata reasoning.

Disposition

other