Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Gail H. Hagerty, Judge.
The opinion of the court was delivered by: Maring, Justice
[¶1] Arden Nygaard appeals from a domestic violence protection order prohibiting him from committing domestic violence against Rhonda Hanneman or from having direct or indirect contact with her. Nygaard argues the district court erred in denying his motion to dismiss on the ground of res judicata and there was insufficient evidence to support the domestic violence protection order. We affirm.
[¶2] Hanneman and Nygaard have two children together from a previous relationship. On March 11, 2009, the district court issued an order prohibiting Hanneman from initiating direct or indirect contact with Nygaard's mother. On June 16, 2009, in the context of allegations that Hanneman had stabbed Nygaard during a domestic altercation on June 15, 2009, the district court issued an order requiring Hanneman to refrain from any domestic violence or direct or indirect contact with Nygaard.
[¶3] On July 9, 2009, Hanneman petitioned for a domestic violence protection order against Nygaard. Hanneman's handwritten affidavit in support of her petition stated there was an "altercation" between her and Nygaard on June 15, and she was arrested even though she had numerous visible bruises all over her body. Her affidavit also stated Nygaard had kicked in her apartment door many times and she had received several "hang up" phone calls throughout the night for seven to ten days after the June 15 incident. She claimed police had attributed those phone calls to Nygaard. She also stated that Nygaard was seen walking outside her apartment building at 5 a.m. a couple of weeks earlier, that she feared for her and her children's lives, that Nygaard had previously split her head open and given her many fat lips, black eyes, and bruises, and that the abuse continued while she was pregnant. She claimed she had changed locks on her residence, but Nygaard had come into her apartment through a window and forced his way through the front door. The district court issued a temporary domestic violence protection order against Nygaard, but Hanneman did not appear for a July 23, 2009, hearing on that petition and a judicial referee dismissed the petition after checking a box on a preprinted order of dismissal form that said "[p] etitioner did not appear for hearing." The dismissal did not state whether it was with or without prejudice.
[¶4] On August 7, 2009, Hanneman filed a second petition against Nygaard for a domestic violence protection order. Hanneman's second petition was supported by another handwritten affidavit, which stated Nygaard had used physical force against her for many years, including strangling her, punching her in the face, pulling her hair on many occasions, pushing her down to the ground, threatening her, and assaulting her at a park around June 9. She stated she feared for her life, and on June 15, Nygaard came to her house and a physical altercation occurred between them, which resulted in her being charged with assault. She stated he has continued to call her late at night, and on July 14, he confronted a girl in Hanneman's vehicle in a grocery store parking lot while Hanneman's children were in the vehicle and Hanneman was in the store. Hanneman claimed Nygaard "has been calling my friends to tell me I'm a fucking bitch and has been sending nasty text messages to them about me." She stated that "at this time I have to have a friend stay with me because I am scared of him," and in the past, he has kicked in her apartment door and "the physical violence has been almost a daily occurrence for the last year and few months." The court issued a temporary domestic violence protection order against Nygaard.
[¶5] Nygaard moved to dismiss the second petition, arguing it was barred by the doctrines of res judicata and collateral estoppel. The district court denied Nygaard's motion to dismiss at the beginning of an evidentiary hearing on September 9, 2009. At the hearing, Hanneman testified that everything in her request for the domestic violence protection order was "true and correct." She testified the police had come to her house more than five times because of domestic disturbances and there was a pending aggravated assault charge against her. Nygaard denied any contact with Hanneman after June 15 and stated he "never punched her, pulled her hair while she was pregnant, [and] never kicked her in the stomach, and threatened her." Nygaard asserted Hanneman had assaulted him on June 15, and that he had not assaulted her. Nygaard's attorney claimed the petition was retaliatory because "there hasn't been any [actual physical violence]. There's no fear of imminent physical violence. The only thing has been a no-contact order that's been filed against [Hanneman] and this is why this is retaliatory. . . . We've disputed all the allegations that [Hanneman] has brought and it should be dismissed."
[¶6] At the conclusion of the evidentiary hearing, the district court said "[b]ased on the evidence in the record before me, I am finding there are grounds for issuance of a domestic violence protection order." The court issued a written domestic violence protection order, effective for two years, on a preprinted form on which the court entered a handwritten note finding that Nygaard "has assaulted [Hanneman] and engaged in threatening behavior." The court also checked a box on the preprinted form that stated Nygaard "represents a credible threat to the safety" of Hanneman.
[¶7] Nygaard argues the district court erred in denying his motion to dismiss the second petition because the dismissal of the first petition precluded litigation of the second petition on the ground of res judicata. He claims the second petition is based on the same allegations as the first petition. He asserts the court did not "otherwise specif[y]" in dismissing the first petition and that dismissal was an adjudication on the merits under N.D.R.Civ.P. 41(b), which provides:
For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.
[¶8] "The primary purpose for dismissing an action for failure to prosecute [under N.D.R.Civ.P. 41(b)] is to prevent unnecessary delays in the disposition of pending cases and to avoid congestion in court calendars by disposing of cases not being seriously prosecuted." Ternes v. Knispel, 374 N.W.2d 879, 881 (N.D. 1985) (citations and footnote omitted). Each case must be evaluated on its own particular facts and circumstances, and courts must consider several competing factors in assessing a request to dismiss for lack of prosecution under N.D.R.Civ.P. 41(b), including a court's need to manage its docket, the public interest in expeditious resolution of litigation, and the risk of prejudice to adverse parties from delay. Ternes, at 881. Those factors are balanced by a reluctance to impose the harsh remedy of dismissal in light of our policy favoring disposition of a case on the merits. Id. A dismissal with prejudice is a harsh and permanent remedy when it resolves a case on the merits. Riverwood Commercial Park, L.L.C. v. Standard Oil Co., Inc., 2007 ND 36, ¶ 31, 729 N.W.2d 101.
[¶9] In Ternes, we also recognized the interpretations of F.R.Civ.P. 41(b) are highly persuasive in interpreting N.D.R.Civ.P. 41(b). Ternes, 374 N.W.2d at 881 n.4. A dismissal for failure to appear constitutes an adjudication on the merits under F.R.Civ.P. 41(b) if the court does not otherwise specify. See LeBlang Motors, Ltd. v. Subaru, 148 F.3d 680, 687 (7th Cir. 1998) (treating order involuntarily dismissing action, which did not otherwise specify, as adjudication on merits under F.R.Civ.P. 41(b)); LeBeau v. Taco Bell, Inc., 892 F.2d 605, 607-09 (7th Cir. 1989) (same); In re Jee, 799 F.2d 532, 534 n.2 (9th Cir. 1986) (same); Hines v. Delta Air Lines, Inc., 461 F.2d 576, 579 n.12 (5th Cir. ...