North Dakota Private Investigative and Security Board, Plaintiff, Appellant and Cross-Appellee
TigerSwan, LLC and James L. Patrick Reese, Defendants, Appellees, and Cross-Appellants
from the District Court of Burleigh County, South Central
Judicial District, the Honorable John W. Grmstemer, Judge.
L. Rogneby (argued) and Justin J. Hagel (appeared), Special
Assistant Attorneys General, Bismarck, ND, for plaintiff,
appellant and cross-appellee.
M. Boughey, Mandan, ND, for defendants, appellees and
VANDEWALLE, CHIEF JUSTICE.
The North Dakota Private Investigative and Security Board
appealed, and TigerSwan, LLC and James Reese cross-appealed,
from a judgment dismissing the Board's request for an
injunction under N.D.C.C. § 43-30-10 prohibiting
TigerSwan and Reese from providing private investigative and
security services without a license. TigerSwan and Reese also
appeal from an order denying their motion for sanctions and
attorney fees. Because the district court did not abuse its
discretion in denying the injunction or the motion for
sanctions and attorney fees, we affirm the judgment and
Reese is the majority interest owner in TigerSwan, which is a
limited liability company organized under North Carolina law.
TigerSwan is registered as a foreign limited liability
company in North Dakota and has listed its business on the
Secretary of State's website as providing "security
services" and "management consulting." During
the protests over construction of the Dakota Access Pipeline,
TigerSwan provided services to Energy Transfer Partners. On
September 23, 2016, the Board wrote a letter to TigerSwan
informing it that "you may be conducting security
services without a proper license" and requested a
response. TigerSwan denied providing private security
services and "submitted a packet to become a licensed
private security firm within the state of North Dakota should
such services, which are not present at the time, be required
from TigerSwan." The Board denied Reese and
TigerSwan's application to become licensed private
security providers in North Dakota.
In June 2017 the Board brought this action against TigerSwan
and Reese. Count one alleged that TigerSwan and Reese were
illegally providing security semces. Count two alleged that
they were illegally providing private investigative services.
Count three sought an injunction prohibiting them from
further violating N.D.C.C. ch. 43-30 and an award of expenses
and administrative fees. TigerSwan and Reese filed separate
answers denying the allegations. Shortly after the action was
commenced, TigerSwan removed all of its employees from North
After unsuccessful settlement negotiations, TigerSwan and
Reese brought a motion to dismiss Reese from the action, a
motion for summary judgment dismissing counts one and two of
the complaint, a motion for summary judgment to dismiss the
request for injunctive relief in count three of the
complaint, and a motion in limine to limit or exclude
evidence at trial. The district court denied the motion to
dismiss Reese from the action, concluding the complaint
adequately stated a claim for relief against him. The court
denied the motion in limine, concluding the motion was
premature. The court also denied the motion to dismiss counts
one and two, concluding there were genuine issues of material
fact that must be resolved at trial. However, the court
granted the motion for summary judgment on count three
requesting injunctive relief and dismissed the count without
Here, TigerSwan argues its employees left North Dakota on or
before June 23, 2017. Doc. ID #67 (Exhibit 6). The Board
alleges that TigerSwan's assertions should not preclude
the Board from seeking an injunction to prevent TigerSwan
from returning to North Dakota and resuming the alleged
illegal activity. The Board has failed to present evidence to
support its position that TigerSwan is currently in North
Dakota or may return to North Dakota in the immediate future.
Furthermore, the Board has failed to show that this conduct
would produce injury to the Board.
TigerSwan and Reese then renewed their motion to dismiss
counts one and two and the Board's claim for
administrative fees for providing services without a license.
The district court granted the motion to dismiss the
Board's remaining claims, explaining:
Sections 43-30-10 and 43-30-10.1 expressly differentiate
between and provides different procedures for civil,
criminal, and administrative remedies. The statute does,
however, provide a narrow exception in which civil and
administrative remedies overlap. The plain language of the
statute states, “[i]n addition to issuing the
injunction, the court may impose an administrative fee."
N.D.C.C. § 43-30-10.
This Court interprets the statute to mean that if an
injunction is issued, then the Court may also impose
administrative fees. In other words, the issuing of an
injunction is a prerequisite to the district court's
ability to impose administrative fees. This interpretation is
supported both by the plain language of the statute and by
the principle of judicial economy.
Here, this Court has dismissed the Board's claim for
injunctive relief (Count III). Therefore, there are no civil
or criminal claims before the Court. As a result, there is
nothing left of the Complaint that is within the purview of
the district court. It would be improper for this Court to
impose itself on an otherwise regulatory function. As such,
this matter must be dismissed in favor of administrative
The district court denied the Board's motion for
reconsideration. The court also denied Reese and
TigerSwan's motion for attorney fees under N.D.R.Civ.P.
11 and N.D.C.C. § 28-26-01 and the Board's motion to
strike that motion and award it attorney fees under ...