Sanderson v. Cole

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2026 ND 16

Mitchell S. Sanderson, Plaintiff and Appellant

v.

Kelley Cole, Defendant and Appellee

No. 20250288

Appeal from the District Court of Walsh County, Northeast Judicial District, the

Honorable Donovan J. Foughty, Judge.

AFFIRMED.

Opinion of the Court by Crothers, Justice.

Mitchell S. Sanderson, Park River, ND, plaintiff and appellant; on brief.

Daniel L. Gaustad, Joseph E. Quinn, Jaxen Bratcher, Grand Forks, ND, for

defendant and appellee; on brief.

Sanderson v. Cole

No. 20250288

Crothers, Justice.

[¶1] Mitchell S. Sanderson appeals from a district court judgment dismissing

his complaint against Walsh County State’s Attorney, Kelley Cole, and awarding

Cole attorney’s fees. Sanderson argues the district court lacked subject matter

jurisdiction because he did not file the complaint, and lacked personal

jurisdiction because Cole failed to comply with N.D.R.Civ.P. 5(d)(2)(A)(ii) by

filing the complaint without serving notice on Sanderson. He argues the court

erred by dismissing his case as frivolous under N.D.R.Civ.P. 12(b)(6), and

misapplying prosecutorial immunity to an investigative or administrative act.

He further argues the court abused its discretion by dismissing the complaint

without a hearing on the motion to dismiss. Sanderson also argues the court

erred by awarding attorney’s fees under N.D.C.C. § 28-26-01(2). Sanderson also

asserts several due process violations, arguing the court did not follow

procedural rules. Sanderson seeks reassignment on remand under N.D. Code

Jud. Conduct 2.11, and argues Cole violated the rules of professional conduct.

We affirm the judgment.

I

[¶2] On February 24, 2025, Sanderson commenced this action by serving Cole

with a copy of the summons and complaint. On March 17, 2025, Cole filed the

summons and complaint with the district court. On the same day, Cole filed a

motion to dismiss under N.D.R.Civ.P. 12(b)(6) and requested attorney’s fees due

to the alleged frivolous nature of the complaint. Cole filed a declaration of service

of the notice and motion to dismiss. Cole filed and served an answer to

Sanderson’s complaint on March 21, 2025.

[¶3] On March 28, 2025, Sanderson filed a response to the motion to dismiss

titled “Stipulation to Dismiss,” stating, “Sanderson agrees to dismiss[.]” The

“stipulation” did not contain Cole’s signature. Cole and the district court treated

Sanderson’s “stipulation” as a response brief to the motion to dismiss.

Sanderson’s filing explained:

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Sanderson inadvertently served this complaint on the

Defendant. Sanderson obviously printed off a complaint by mistake

in haste and mistakenly filed the wrong papers on the Defendant. It

was in the Draft stage and never intended to be mailed to the

Defendant. It is a correctible mistake and Sanderson apologizes to

the Court and Defendant.

. . . . If Sanderson had completed the Draft Sanderson would have

evidence to the fact that laws were not enforced in Walsh and

violations of law by government officials did exist and Defendant

was made aware of them and she ignored State law by not

investigating them and by doing so no charges were filed on the

Government actors for violations of said laws. Sanderson did not file

the case with the Court—the Defendant did! Sanderson cannot be

liable for the actions of the Defendant when they have no idea if

Sanderson ever intended to actually file this case with the Court or

see if the Defendant would collaborate to settle out of Court. That is

what the 21-day rule allows for. The Defendant has filed for a

dismissal so Sanderson agrees to dismiss due to a correctable error.

(Emphasis in original.)

[¶4] On April 2, 2025, Cole filed a reply in support of the motion to dismiss,

arguing Sanderson intended to serve the summons and complaint because he

signed the summons and complaint and then delivered the signed documents to

a third party for service on Cole. On April 16, 2025, Sanderson filed a reply brief

titled “Reply/Response/Opposition to State[’]s Motion to Dismiss” with

supporting exhibits, and requested a hearing.

[¶5] On April 17, 2025, the district court granted the motion to dismiss and

awarded attorney’s fees and costs. Cole filed and served a declaration of

attorney’s fees and costs on April 18, 2025. Sanderson did not object or respond

to the declaration of fees and costs. The court awarded $3,927 in costs and fees.

[¶6] Before judgment was entered, Sanderson filed a “Motion for Void

Judgment” and “Motion for Discovery” and requested a hearing on both

motions. Cole responded to both motions and requested attorney’s fees and costs

incurred to respond to both motions. The district court held a hearing on the

motions on June 9, 2025. Sanderson filed a post-hearing brief. The court denied

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the motion for void judgment and motion for discovery, and awarded Cole

attorney’s fees and costs. Cole filed a declaration and account of attorney’s fees.

Sanderson did not object or respond to the amount Cole requested. The court

awarded Cole $3,779 in additional attorney’s fees and costs. Judgment was

entered dismissing Sanderson’s complaint against Cole, and awarding Cole

$7,706 in attorney’s fees and costs. Sanderson appeals.

II

[¶7] Sanderson claims the district court lacked jurisdiction to dismiss the

complaint. He argues under federal law only the plaintiff can file the complaint,

and Sanderson did not file the complaint. He also argues the court lacked

jurisdiction because Cole filed the complaint without serving notice of filing as

required by N.D.R.Civ.P. 5(d)(2)(A)(ii). We disagree.

[¶8] Sanderson’s reliance on the federal rules of civil procedure is misplaced.

Sanderson commenced this action in state court, not federal court. North

Dakota’s rule differs from the federal rule that requires filing of a complaint to

commence an action. Fed.R.Civ.P. 3 (“A civil action is commenced by filing a

complaint with the court.”); Hughes v. Olheiser Masonry, Inc., 2019 ND 273, ¶ 6,

935 N.W.2d 530 (same). Under the North Dakota Rules of Civil Procedure, “[a]

civil action is commenced by the service of a summons.” N.D.R.Civ.P. 3. North

Dakota rules allow the defendant to file the complaint in district court.

N.D.R.Civ.P. 5(d)(2)(A)(iv) (“The defendant may file the summons and

complaint[.]”). Cole filed the summons and complaint as permitted by Rule 5.

The district court had subject matter jurisdiction.

[¶9] Sanderson argues the district court lacked personal jurisdiction. “Valid

service of process is necessary to assert personal jurisdiction over a defendant.”

Cache Priv. Cap. Diversified Fund LLC v. Braddock, 2025 ND 168, ¶ 10, 26 N.W.3d

688 (citation omitted). A district court “may acquire personal jurisdiction over

any person through service of process as provided in this rule or by statute, or

by voluntary general appearance in an action by any person either personally or

through an attorney or any other authorized person.” N.D.R.Civ.P. 4(b)(4). “A

party must strictly comply with the specific requirements for service of process.”

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Baker v. Erickson, 2022 ND 137, ¶ 11, 977 N.W.2d 316 (quoting Sanderson v. Walsh

Cnty., 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. (quoting Sanderson v. Walsh Cnty.,

¶ 13).

[¶10] Sanderson admits he served the summons and complaint on Cole on

February 24, 2025, thereby commencing this action. Sanderson’s complaint

asserted the State of North Dakota, in District Court, County of Walsh, Northeast

Judicial District, has “personal jurisdiction and is the proper venue as a Citizen

of Walsh County” and “the defendant is the State[’]s Attorney works and lives

in Walsh County.” “A plaintiff who commences an action alleging a district court

has personal jurisdiction over a defendant cannot later challenge that court’s

personal jurisdiction[.]” Sanderson v. Myrdal, 2024 ND 202, ¶ 8, 13 N.W.3d 739;

see also Bryan v. Miller, 16 N.W.2d 275, 284 (N.D. 1944) (“The rule that one who

invokes the aid of the court in a case in which the court has general jurisdiction

thereby confers jurisdiction upon the court to try and determine the action, is not

restricted to a defendant. Obviously, it applies as well to a plaintiff.”). Sanderson

submitted to the district court’s jurisdiction when he served process. Therefore,

the court had personal jurisdiction over Sanderson for all proceedings in this

matter.

[¶11] Sanderson argues the district court lacked personal jurisdiction over him

because Cole did not serve notice of filing the summons and complaint under

N.D.R.Civ.P. 5(d)(2)(A)(ii). Rule 5(d)(2), N.D.R.Civ.P., provides:

(2) Initiating Pleading.

(A) The Summons and Complaint.

(i) The summons and complaint, or other initiating

pleading, must be filed before a subpoena may

be issued. Unless otherwise authorized by rule

or statute, a party seeking to file an initiating

pleading must provide proof that the pleading

was served under Rule 4. The proof of service

must be filed with the initiating pleading.

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(ii) A party who files a complaint or other initiating

pleading must serve notice of filing on the other

parties.

....

(iv) The defendant may file the summons and

complaint, and the costs incurred on behalf of

the plaintiff may be taxed as provided in Rule

54(e).

(Emphasis added.)

[¶12] Cole filed the summons, complaint and affidavit dated February 24, 2025,

attesting Sanderson served his summons and complaint on Cole by mail. Under

N.D.R.Civ.P. 5(d)(2)(A)(i), “[u]nless otherwise authorized by rule or statute, a

party seeking to file an initiating pleading must provide proof that the pleading

was served under Rule 4. The proof of service must be filed with the initiating

pleading.” The Explanatory Note to Rule 5, N.D.R.Civ.P., states:

Subparagraph (d)(2)(A) was amended, effective March 1, 2013, to

require that proof of service be provided and filed by a party seeking

to file an initiating pleading. Under Rule 3, an action is commenced

on service of the initiating pleading, not on filing. Unless a rule

specifically provides otherwise, service under Rule 4 must be

accomplished before any pleadings in an action may be filed.

[¶13] Service under Rule 4, N.D.R.Civ.P., was accomplished by Sanderson

before Cole filed this action. Cole’s filing of Sanderson’s affidavit of service

satisfies N.D.R.Civ.P. 5(d)(2)(A)(i).

[¶14] “A party who files a complaint or other initiating pleading must serve

notice of filing on the other parties.” N.D.R.Civ.P. 5(d)(2)(A)(ii). The Explanatory

Note to Rule 5 states, “Subparagraph (d)(2)(A) was amended, effective April 1,

2013, to clarify that any party who files a complaint or other initiating pleading

must serve notice on the other parties in the matter.” Cole did not serve notice

she filed the summons and complaint. Cole did not comply with N.D.R.Civ.P.

5(d)(2)(A)(ii).

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[¶15] The action was commenced by Sanderson’s service of the summons, and

the district court acquired personal jurisdiction over both Sanderson and Cole at

that time. A failure to serve notice of an action is a procedural irregularity that

could give rise to a due process claim. Zittleman v. Bibler, 2025 ND 87, ¶ 7, 20

N.W.3d 148 (“Due process requires a party receive adequate notice and a fair

opportunity to be heard.” (citation omitted)). “Subject-matter jurisdiction is the

court’s power to hear and determine the general subject involved in the action,

while personal jurisdiction is the court’s power over a party.” Winter v. Solheim,

2015 ND 210, ¶ 6, 868 N.W.2d 842 (citation omitted). Neither the court’s subject

matter nor personal jurisdiction was lost because Cole did not serve notice she

filed Sanderson’s summons and complaint as required in N.D.R.Civ.P.

5(d)(2)(A)(ii). The district court had jurisdiction over the matter and the parties.

[¶16] Nor has Sanderson shown he was prejudiced by Cole’s failure to serve

notice that she filed the summons and complaint. Rather, Sanderson timely

responded to Cole’s motion to dismiss and other matters pending in the district

court. “Unless justice requires otherwise, no error . . . by the court or a party, is

ground for . . . vacating, modifying, or otherwise disturbing a judgment or order.

At every stage of the proceeding, the court must disregard all errors and defects

that do not affect any party’s substantial rights.” N.D.R.Civ.P. 61. We therefore

reject Sanderson’s arguments the district court did not have jurisdiction to fully

and finally adjudicate this matter.

III

[¶17] Sanderson claims the court erred by dismissing his case under

N.D.R.Civ.P. 12(b)(6), and misapplying prosecutorial immunity to an

investigative or administrative act. Rule 12(b)(6), N.D.R.Civ.P., permits

dismissals of civil actions when the claimant fails “to state a claim upon which

relief can be granted[.]” “The legal sufficiency of a claim is tested by a motion to

dismiss under N.D.R.Civ.P. 12(b)(6).” Puklich v. Puklich, 2022 ND 158, ¶ 7, 978

N.W.2d 668.

[¶18] “Dismissals under N.D.R.Civ.P. 12(b)(6) are reviewed de novo and will be

affirmed if this Court is unable to discern a potential for proof to support the

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complaint.” Sanderson v. Agotness, 2024 ND 232, ¶ 5, 15 N.W.3d 1 (cleaned up).

“We construe the complaint in the light most favorable to the plaintiff and accept

as true the well-pleaded allegations in the complaint.” Severance v. Howe, 2023

ND 197, ¶ 8, 997 N.W.2d 99 (cleaned up). “A court’s scrutiny of pleadings should

be deferential to the plaintiff, unless it is clear there are no provable facts entitling

the plaintiff to relief.” Killoran v. Kaler, 2025 ND 64, ¶ 10, 18 N.W.3d 867 (citation

omitted). “Rule 12(b)(6) motions are viewed with disfavor and should be granted

only if it is disclosed with certainty the impossibility of proving a claim upon

which relief can be granted.” Id.

[¶19] Cole moved to dismiss Sanderson’s complaint arguing he failed to state a

claim and Cole is entitled to absolute prosecutorial immunity. Sanderson argues

prosecutorial immunity does not apply because absolute immunity protects

advocacy decision but does not extend to administrative or investigative

conduct. He concedes “allegations of administrative blocking of public records

and investigative inaction are, at minimum, subject to qualified immunity.”

[¶20] Sanderson’s complaint states venue, jurisdiction and the information of

the parties. His “facts” section states:

Cole has repeatedly ignored crimes presented to her when

state law demands that she “SHALL” investigate them! Shall is not

discretionary it is mandatory according to US Supreme Court

rulings!

WHEREFORE, Mr. Sanderson demands that this Court

address each of these claims to be each ruled on separately:

Claim 1: Cole violated her Oath of Office ND Constitution

Article XI.

Claim 2: Cole violated State law on Oath of Office NDCC 44-

01-05.

Claim 3: Cole violated State law NDCC 44-04-06.

Claim 4: That Cole deprived Sanderson of his Constitutional

rights, 42 USC 1983.

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Claim 5: Cole is [in] violation of professional conduct rules.

Plaintiff is demanding a bench Trial in this matter. Defendant

could settle out of Court but if she refuses to this case will be

appealed if the law is not upheld!

(Emphasis in original.) Sanderson’s “prayer for relief” requests:

Plaintiff demands judgment against Cole for Injunctive and

Declaratory relief. That Walsh State’s Attorneys office be ordered to

investigate the crimes Sanderson has reported with Sanderson’s

input in the investigation. The Plaintiff demands Cole’s bond be

forfeited to Sanderson. That Sanderson be awarded Punitive

damages for Sanderson’s rights being violated. Award Mr.

Sanderson general and special damages for his emotional distress

and legal filings. The defendants shall be found guilty of violations

of statutory law, and Constitutional law. That Cole be disbarred and

investigated for misconduct for ignoring Forgery, ignoring Evidence

tampering, Commissioners not following the law, judges violating

the law.

[¶21] The district court determined Sanderson “concedes the Complaint lacks

any factual basis necessary to establish his claim” because his response to the

motion to dismiss states: “If Sanderson had completed the Draft Sanderson

would have evidence to the fact that laws were not enforced . . . .” The court

further determined “the nature of the claim raised cannot succeed as a matter of

law due to absolute prosecutorial immunity afforded to Cole. There is simply no

potential for proof to support a claim such as this.”

[¶22] “Under N.D.R.Civ.P. 12(b)(6), a complaint should not be dismissed for

failure to state a claim unless it appears beyond doubt that the plaintiff can prove

no set of facts in support of his claim which would entitle him to relief.”

Sanderson v. Agotness, 2024 ND 232, ¶ 6 (cleaned up). “Section 8(a)(1),

N.D.R.Civ.P., requires that a claim for relief contain a short and plain statement

of the claim showing that the pleader is entitled to relief.” Id. (cleaned up). We

have explained:

Under N.D.R.Civ.P. 8(a), a pleading that states a claim for relief

must contain “a short and plain statement of the claim showing that

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the pleader is entitled to relief.” Although a concise and non-

technical complaint is all that is required by N.D.R.Civ.P. 8(a), a

complaint nevertheless must be sufficient to inform and notify the

adversary and the court of the pleader’s claim. Rule 8 does not

require the complaint to have detailed factual allegations, but

allegations that are merely conclusory statements unsupported by

factual allegations are not sufficient to state a cause of action. Well-

pleaded factual allegations are entitled to an assumption of truth,

but conclusions unsupported by factual allegations are not.

Krile v. Lawyer, 2022 ND 28, ¶ 28, 970 N.W.2d 150 (cleaned up).

[¶23] The allegations in Sanderson’s complaint are merely conclusory

statements unsupported by factual allegations, and are not sufficient to state a

cause of action. “Rule 8 does not empower a party to plead the bare elements of

his cause of action, affix the label ‘general allegation,’ and expect his complaint

to survive a motion to dismiss.” Krile, 2022 ND 28, ¶ 29 (cleaned up).

[¶24] A political subdivision employee may not be held liable for “[t]he decision

to undertake or the refusal to undertake any judicial or quasi-judicial act,

including the decision to grant, to grant with conditions, to refuse to grant, or to

revoke any license, permit, order, or other administrative approval or denial.”

N.D.C.C. § 32-12.1-03(3)(c). “Employee” means “any officer, employee, board

member, volunteer, or servant of a political subdivision, whether elected or

appointed and whether or not compensated.” N.D.C.C. § 32-12.1-02(3). “Political

subdivision” includes “all counties” such as Walsh County. N.D.C.C. § 32-12.1-

02(6).

[¶25] “Prosecutors may be entitled to either absolute or qualified immunity from

civil liability under 42 U.S.C. § 1983 for actions undertaken in accordance with

their official duties.” Perry Ctr., Inc. v. Heitkamp, 1998 ND 78, ¶ 45, 576 N.W.2d

505. “Prosecuting attorneys are considered ‘quasi-judicial officers’ entitled to

absolute immunity granted judges when their activities are ‘intimately

associated with the judicial phase of the criminal process.’” Krile v. Lawyer, 2020

ND 176, ¶ 24, 947 N.W.2d 366 (citations omitted). “Guided by the standard

applied in cases concerning prosecutorial immunity, a state’s attorney’s official

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duties are those activities that are ‘intimately associated with the judicial phase

of the criminal process.’” Id. ¶ 25.

[¶26] “While absolute immunity covers prosecutorial functions such as the

initiation and pursuit of a criminal prosecution . . . and other conduct intimately

associated with the judicial process, prosecutors have only the protection of

qualified immunity when functioning in the role of an administrator or

investigative officer rather than in the role of an advocate.” Perry Ctr., Inc., 1998

ND 78, ¶ 45. “The procedural difference between the two immunities is

significant. Absolute immunity defeats a suit at the outset, while an official with

qualified immunity must establish his or her conduct did not violate clearly

established statutory or constitutional rights of which a reasonable person would

have known.” Id.

[¶27] Sanderson alleges in his complaint Cole failed to investigate or initiate

criminal proceedings. Although Sanderson now argues Cole committed

administrative misconduct regarding open records violations, his complaint

does not address that topic. Absolute immunity applies to the allegations in

Sanderson’s complaint. As to those claims, the district court did not err by

dismissing the complaint under N.D.R.Civ.P. 12(b)(6).

[¶28] Sanderson argues the district court “further dismissed under Rule 12(b)(6)

while considering matters outside the pleadings, without converting to

summary judgment under Rule 12(d). [Sanderson] should have been permitted

amendment under Rule 15(a) and limited discovery under Rule 26.” Sanderson

did not move to amend his complaint under Rule 15, nor does he provide further

support for this argument.

[¶29] Rule 12(d), N.D.R.Civ.P., states:

If, on a motion under Rule 12(b)(6) or 12(c), matters outside the

pleadings are presented to and not excluded by the court, the motion

must be treated as one for summary judgment under Rule 56. All

parties must be given a reasonable opportunity to present all the

material that is pertinent to the motion.

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“In deciding a motion under Rule 12(b)(6) or 12(c), district courts may consider,

in addition to the pleadings, materials embraced by the pleadings and materials

that are part of the public record, without converting the motion to a summary

judgment under Rule 56.” Krile v. Lawyer, 2020 ND 176, ¶ 13 (cleaned up).

[¶30] Here, the district court concluded “even under the highly deferential

standard” Sanderson’s complaint must be dismissed for lack of a factual basis

supporting the asserted claims. The court also concluded that, even if the

complaint alleged sufficient facts, “the nature of the claim raised cannot succeed

as a matter of law due to absolute prosecutorial immunity afforded to Cole.” In

reaching its conclusions, the court did not consider information outside the

pleadings. Therefore, the court did not err by dismissing his complaint under

N.D.R.Civ.P. 12(b)(6) or in its application of prosecutorial immunity.

[¶31] Sanderson claims the district court erred by denying his request for a

hearing under N.D.R.Ct. 3.2 and further argues such denial violated his due

process rights. “We review such denials for an abuse of discretion.” Sanderson v.

Myrdal, 2024 ND 202, ¶ 24.

[¶32] Rule 3.2(a) specifies when a party is entitled to a hearing on a motion:

If any party who has timely served and filed a brief requests a

hearing, the request must be granted. A timely request for a hearing

must be granted even if the moving party has previously served

notice indicating that the motion is to be decided on briefs. The party

requesting a hearing must secure a time for the hearing and serve

notice upon all other parties. Requests for a hearing or the taking of

evidence must be made not later than seven days after expiration of

the time for filing the answer brief. If the party requesting a hearing

fails within 14 days of the request to secure a time for the hearing,

the request is waived and the matter is considered submitted for

decision on the briefs. If an evidentiary hearing is requested in a civil

action, notice must be served at least 21 days before the time

specified for the hearing.

N.D.R.Ct. 3.2(a)(3). “A Rule 3.2 request for oral argument must be granted to any

requesting party who has timely served and filed a brief. Rule 3.2, however,

requires that the party requesting oral argument must secure a time for the

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argument and serve notice upon all other parties. Failure to secure a time for oral

argument renders the request incomplete.” Sanderson v. Myrdal, 2024 ND 202,

¶ 25 (cleaned up).

[¶33] Cole argues Sanderson’s request for a hearing was not timely, and not in a

recognized pleading because Sanderson’s response brief to the motion to dismiss

did not include a request for a hearing. Sanderson argues he requested a hearing

in his “Reply/Response/Opposition filed April 16, 2025.”

[¶34] On March 17, 2025, Cole filed a motion to dismiss and served notice on

Sanderson. On March 28, 2025, Sanderson filed a response to the motion to

dismiss titled “Stipulation to Dismiss.” Sanderson’s “stipulation” did not

request a hearing. On April 2, 2025, Cole filed and served a reply in support of

the motion to dismiss. On April 16, 2025, Sanderson filed a reply brief titled

“Reply/Response/Opposition to State[’]s Motion to Dismiss” and requested a

hearing. On April 17, 2025, the district court granted the motion to dismiss

without a hearing. The district court order “notes Sanderson’s response is not a

stipulation,” and found “[n]either party requested a hearing[.]”

[¶35] “Requests for a hearing or the taking of evidence must be made not later

than seven days after expiration of the time for filing the answer brief.” N.D.R.Ct.

3.2(a)(3). “[T]he opposing party must have 14 days after service of a brief within

which to serve and file an answer brief and other supporting papers.” N.D.R.Ct.

3.2(a)(2). “Upon the filing of briefs, or upon expiration of the time for filing, the

motion is considered submitted to the court unless counsel for any party requests

a hearing on the motion.” Id.

[¶36] Cole filed and served her motion by electronic filing and by mail on

Sanderson on March 17, 2025. Sanderson’s answer brief was due 14 days after

service of the brief. Sanderson further had 7 days after expiration of the time for

filing his answer brief to request a hearing. Sanderson’s “stipulation to dismiss”

was timely filed before expiration of the deadline to file an answer brief. He did

not request a hearing. Sanderson’s “Reply/Response/Opposition to State[’]s

Motion to Dismiss” was filed on April 16, 2025, which was after expiration of the

deadline to file his answer brief. Sanderson’s request for a hearing was untimely

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and the district court did not abuse its discretion by dismissing the complaint

without a hearing.

IV

[¶37] Sanderson claims the district court erred in awarding Cole attorney’s fees

under N.D.C.C. § 28-26-01(2). “We review an award of attorney’s fees for an

abuse of discretion.” Sanderson v. Myrdal, 2024 ND 202, ¶ 27.

[¶38] Section 28-26-01(2), N.D.C.C., provides:

In civil actions the court shall, upon a finding that a claim for relief

was frivolous, award reasonable actual and statutory costs,

including reasonable attorney’s fees to the prevailing party. Such

costs must be awarded regardless of the good faith of the attorney

or party making the claim for relief if there is such a complete

absence of actual facts or law that a reasonable person could not

have thought a court would render judgment in that person’s favor,

providing the prevailing party has in responsive pleading alleged

the frivolous nature of the claim.

[¶39] A district court has discretion under N.D.C.C. § 28-26-01(2) to determine

whether a claim is frivolous and, if so, how much attorney’s fees to award.

Sanderson v. Myrdal, 2024 ND 202, ¶ 28. “Frivolous claims are those which have

such a complete absence of actual facts or law that a reasonable person could not

have expected that a court would render judgment in that person’s favor.” Id.

(citation omitted). “The district court must award costs and attorney’s fees if it

finds the claim is frivolous.” Id.

[¶40] Sanderson argues the district court’s order lacks the findings required to

conclude his claims were frivolous. The district court found:

A reasonable person in Sanderson’s position could not have

expected that a court would render judgment in his favor. His claim

for relief is frivolous. This is particularly evident when one considers

that Sanderson made similar claims in another dismissed action,

with that dismissal upheld on appeal to the North Dakota Supreme

Court. See Sanderson v. Agotness, 2024 ND 232, 15 N.W.3d 1.

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While Sanderson’s claims in Agotness involved judicial

immunity, it provides clear guidance here. Absolute prosecutorial

immunity, like judicial immunity, is “a well-established and long-

standing legal doctrine” and Sanderson did not request any form of

relief not barred by the immunity. Agotness at ¶ 12. Sanderson did

not provide any legal argument disputing application of absolute

prosecutorial immunity and admits to a lack of factual basis, arguing

he would have later drafted a complaint that did have sufficient

facts.

His assertions that he never meant for his Complaint to reach

Cole are incredulous, considering he signed two documents,

provided the documents to another individual to serve upon Cole,

and his response to the motion to dismiss clearly indicated an intent

behind serving the documents, when he states Cole had “no idea if

Sanderson ever intended to actually file this case with the Court or

see if the Defendant would collaborate to settle out of Court.” Index

at 16, ¶ 4. This shows Sanderson intended to, and did, serve the

Complaint upon Cole.

Even setting that aside, Sanderson’s argument that he can’t be

held responsible for fees and costs because it was Cole who filed the

summons and complaint was also made, and squarely rejected, in

the Agotness decision, “Attorney’s fees in a frivolous action are not

awarded based on who was first to file but on the prevailing party

who was sued on a meritless claim.” Id. at ¶ 13.

[¶41] The district court specifically found a “reasonable person in Sanderson’s

position could not have expected that a court would render judgment in his

favor.” The court did not abuse its discretion by awarding attorney’s fees.

V

[¶42] Sanderson’s remaining arguments are inadequately briefed, not properly

before this Court, without merit, or unnecessary to our decision. We affirm the

judgment.

[¶43] Lisa Fair McEvers, C.J.

Daniel J. Crothers

Jerod E. Tufte

Jon J. Jensen

Douglas A. Bahr

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