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Kuntz v. State

Supreme Court of North Dakota

February 21, 2019

Riley S. Kuntz, Plaintiff and Appellant
State of North Dakota, Bureau of Criminal Investigation, Criminal Justice Information Sharing Director, Department of Transportation, Attorney General Wayne Stenehjem in his official and individual capacity, Deputy Director of BCI Lonnie Grabowska in his official and individual capacity, Liz Brocker in her official and individual capacity, and Mary Kluzak in her official and individual capacity, Defendants and Appellees

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

          Riley S. Kuntz, self-represented, Dickinson, N.D., plaintiff and appellant.

          Matthew A. Sagsveen (argued), Solicitor General, and Courtney R. Titus (appeared), Assistant Attorney General, Bismarck, N.D., for defendants and appellees.

          Tufte, Justice.

         [¶ 1] Riley Kuntz appeals from a judgment granting the State's motion for judgment on the pleadings and dismissing his claims with prejudice against the State, state agencies, and state officials in their official and individual capacities. We conclude the district court erred in dismissing his open records law claim under N.D.C.C. § 44-04-21.2. We further conclude, however, the court did not err in dismissing his remaining claims and in denying his motions for default judgment, to amend the complaint, and to award sanctions. We affirm in part, reverse in part, and remand for further proceedings.


         [¶ 2] In August 2016, Kuntz submitted written requests for documents under the North Dakota open records law to the Bureau of Criminal Investigation ("BCI"), the Department of Transportation ("DOT"), and the Criminal Justice Information Sharing ("CJIS") Director, seeking records relating to an agreement with "the FBI authorizing or allowing the search of any ND Driver License or non-photo identification database pursuant to a request from any government agency for the purposes of FACE or FIRS or NGI-IPS." Responding on BCI's behalf, Liz Brocker denied his request. Brocker, also responding on CJIS's behalf, requested additional information to clarify his request. Kuntz replied, and Brocker denied his request. Responding on DOT's behalf, Mary Kluzak requested additional information to clarify his request, and Kuntz replied. Kluzak requested payment of a search and duplication fee to fulfill the request. Kuntz paid the fee and was provided a two-page attorney general opinion.

         [¶ 3] In December 2016, Kuntz submitted a letter under the Freedom of Information Act ("FOIA") to the federal Government Accountability Office ("GAO") requesting records related to an agreement between the FBI and any government agency authorizing the search of the North Dakota driver license information databases. In a February 2017 letter, the GAO responded and confirmed the existence of a Memorandum of Understanding ("MOU") between the FBI, CJIS, Attorney General, and BCI concerning searches of the North Dakota Attorney General BCI facial recognition photo repository. However, because the GAO obtained the MOU from the FBI, the GAO informed him it was GAO policy not to release records from its files that originate in another agency or organization.

         [¶ 4] On July 20, 2017, Kuntz submitted written requests under the open records law to the North Dakota Attorney General, BCI, CJIS Director, and DOT, stating in part: "Please supply the Memorandum of Understanding between the FBI, Criminal Justice Information Services Division and ND Attorney General, BCI: Concerning the Search of Probe Photos Against the ND Attorney General of Criminal Investigation Photo Repository." On July 24, 2017, Lonnie Grabowska, on BCI's behalf, replied in a letter requesting additional clarification, and Kuntz replied on August 2, 2017. Kluzak, on DOT's behalf, replied requesting funds for the fulfillment of the request. Kuntz replied to the DOT and did not pay the fee. Kluzak did not respond.

         [¶ 5] On August 16, 2017, Kuntz requested the Attorney General to review agency noncompliance with the open records law. On September 5, 2017, Kuntz notified the Attorney General of noncompliance by the BCI, CJIS, and DOT regarding the release of the MOU, and the Attorney General responded:

A request must reasonably identify specific records (N.D.C.C. § 44-04-18(2)). It is not a violation of the law if the reason a public entity denied a request is because you did not reasonably identify specific records.... Accordingly, we will not take any further action in response to your letter or any future correspondence from you in this regard.

         [¶ 6] On September 19, 2017, Kuntz commenced this action by serving a summons and complaint, naming as defendants the State, the BCI, the CJIS Director, the DOT, Attorney General Wayne Stenehjem in his official and individual capacity, BCI Deputy Director Grabowska in his official and individual capacity, and Brocker and Kluzak in their official and individual capacities (collectively, the "State"). The parties do not dispute on appeal that while the state Solicitor General accepted service on behalf of the defendants in this case, Kuntz did not personally serve any of the defendants in their individual capacities.

         [¶ 7] Kuntz's complaint claims violations of state open records laws; alleges claims for fraud, federal civil rights violations and attorney's fees; and also seeks declaratory relief. His complaint essentially claims the State, through its various agencies, had denied the existence of, or failed to respond to his open records request for, the specified MOU document. On September 22, 2017, after receiving service of the complaint, the Solicitor General mailed an MOU document to Kuntz, described by the Solicitor General as appearing to be the document requested.

         [¶ 8] On October 11, 2017, the State responded to the complaint with a joint answer served by mail. In its answer the State admitted the Attorney General's Office and CJIS did not provide a response to the request for the MOU. On October 16, 2017, Kuntz filed the summons and complaint in the district court. On October 24, 2017, Kuntz filed a motion in the district court seeking a default judgment and a motion for sanctions against the State's counsel. The State opposed the motions. In a December 1, 2017, order, the district court denied both of Kuntz's motions.

         [¶ 9] On January 19, 2018, the State moved the district court for judgment on the pleadings, arguing Kuntz's complaint failed to state a claim for which relief can be granted. Kuntz opposed the State's motion and moved the court for leave to amend the complaint. In its March 29, 2018, order, the district court granted the State's motion dismissing Kuntz's claims with prejudice. The court also denied Kuntz's motion for leave to amend his complaint.


         [¶ 10] Kuntz argues the district court erred in denying his motion for a default judgment under N.D.R.Civ.P. 55 and in denying his motion for sanctions.


         [¶ 11] Under N.D.R.Civ.P. 12(a)(1)(A), a defendant has 21 days to answer a complaint. Rule 55(a), N.D.R.Civ.P., provides that "[i]f a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise appear and the failure is shown by affidavit or otherwise, the court may direct the clerk to enter an appropriate default judgment in favor of the plaintiff and against the defendant." (Emphasis added.) Rule 55(b), N.D.R.Civ.P., states that "[a] default judgment may be entered against the state, its officers, or its agencies only if the claimant establishes a claim or right to relief by evidence that satisfies the court." This Court has explained that "default alone is not enough to obtain judgment under the rule." Bell v. State, 1998 ND 35, ¶ 11, 575 N.W.2d 211.

         [¶ 12] Whether to grant a default judgment rests within the district court's discretion. Bell, 1998 ND 35, ¶ 11, 575 N.W.2d 211. The court also has "broad discretion in determining the quality of proof necessary to support granting a default judgment." Id. A court abuses its discretion when it acts arbitrarily, unconscionably, or unreasonably, or when its decision is not the product of a rational mental process leading to a reasoned determination. Koenig v. State, 2018 ND 59, ¶ 7, 907 N.W.2d 344. The court's refusal to grant default judgment is not an abuse of discretion absent proof of "prejudice[] by the delay in the proceedings." Id.; see also Filler v. Bragg, 1997 ND 24, ¶ 11, 559 N.W.2d 225 ("By its very language, Rule 55 provides default judgment may not be obtained against a party who has appeared.").

         [¶ 13] Kuntz argues the district court erred in finding "unsigned affidavits" are the proper method of service by mail; in finding the State filed a timely answer; and in failing to cite contrary authority in dismissing his motion. To understand his arguments, we note that when the State served its joint answer on Kuntz by mail on October 11, 2017, the affidavit of service accompanying the State's documents was not signed. The State subsequently filed the executed affidavit of service in the district court.

         [¶ 14] The State asserts the affidavit of service included with a properly served document is unsigned so as to comply with the statements being attested to in the affidavit. The State's affidavit of service by mail for the joint answer provides, in relevant part: "I am of legal age and on the 11th day of October, 2017, I served the attached... upon Riley S. Kuntz by placing a true and correct copy thereof in an envelope addressed as follows... and depositing the same, with postage prepaid, in the United States mail at Bismarck, North Dakota." The State maintains that its staff cannot sign a document stating that they placed a true and correct copy in an envelope and deposited it in the mail, until they have actually done so.

         [¶ 15] In its December 1, 2017, order, the district court found it was uncontroverted that the State's joint answer had been served on October 11, 2017, which comports with the signed and sworn affidavit of service the State filed in the district court. The court also noted Kuntz's motion for default was filed on October 24, 2017, which was after the State filed its joint answer with the court on October 17, 2017. The court found no basis for entry of a default judgment under N.D.R.Civ.P. 55 because the State had appeared and filed a joint answer to the complaint. The district court ruled that entry of a default would be an affront to giving the parties a full and fair opportunity to adjudicate the matters on their merits. The court found Kuntz had notice of the State's intent to defend against the claims before he served and filed his motion for default. The court concluded the affidavit of service was proper under N.D.R.Civ.P. 12 and timely. The court also held that the unsigned affidavit included with the served copy is the correct method of service by mail and that only after the document is placed in the mail can there be a signed affidavit attesting to the mailing.

         [¶ 16] We agree that the State's practice of including an unsigned affidavit with documents served by mail is not improper. Kuntz is mistaken when he contends the State's inclusion of an unsigned copy of the affidavit of service with the joint answer mailed to him somehow renders service of the answer invalid. The executed affidavit of service provides proof of when service by mailing occurred. The affidavit of service by mail signed and filed with the district court on October 17, 2017, definitively establishes the State's answer was served on October 11, 2017.

         [¶ 17] Kuntz suggests the State is misleading the district court by filing a copy of the affidavit different from that which was mailed to him. However, the purpose of the affidavit of service is to establish record evidence of when the document was mailed. See N.D.R.Civ.P. 5(b)(3)(C) ("A document that is not required to be filed, or that will be served on a person exempt from electronic service, is served under this rule by... mailing it to the person's last known address, in which event service is complete upon mailing."); see also N.D.R.Civ.P. 4(k) (providing contents for an affidavit of mailing). Although Kuntz may also be entitled to receive a copy of the signed affidavit of service filed with the district court, see N.D.R.Civ.P. 5(a)(1)(F) (requiring "every document filed with the clerk or submitted to the ...

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