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Gessner v. City of Minot8/18/1998
case. We hold, therefore, the district court erred in granting the District's motion for summary judgment dismissal.
[ ] We affirm the district court's order dismissing the City of Minot as a party defendant, we reverse the district court's order dismissing the District as a party defendant, and we remand for a trial on the merits against the District.
[ ] Gerald W. VandeWalle, C.J. Dale V. Sandstrom William A. Neumann Mary Muehlen Maring
Meschke, Justice, Concurring and Dissenting.
[ ] I agree the district court properly decided there was insufficient service of process upon the City of Minot itself. Still, I deplore the special technical treatment created by our rules of procedure for service of process upon a governmental entity, as differentiated from a business entity. Compare service of process on a business entity (delivery "to an officer, director, superintendent or managing or general agent," under N.D.R.Civ.P. 4(d)(2)(D)(i)) with service on a governmental entity (delivery "to any member of its governing board," under Rule 4 (d)(2)(E)). While it may be desirable to provide specifically for service on governmental entities for some reasons, there seems to be no reason that the rules do not authorize service on the chief executive officer of a governmental entity. More than any quasi-legislative delegate of a governmental unit, the chief executive officer would be the most responsible figure for acting to defend against a claim.
[ ] "The city manager shall be the chief administrative officer of the city . . . ." N.D.C.C. § 40-10-03. Elsewhere, generally, the chief administrative officer or chief executive of a governmental unit qualifies for service of process on the entity. Notable is F.R.Civ.P. 4(j)(2): "Service upon a state, municipal corporation, or other governmental organization subject to suit shall be effected by delivering a copy of the summons and of the complaint to its chief executive officer . . . ." It is not just ironic, but unjust, that the service on the City in this case would have been perfectly valid if this case had been brought in federal court. We of this Court, who are responsible for making the procedural rules, should be more contemplative of the potential for inJustices in their content. I hope our Joint Procedure Committee will recommend a revision to remedy this differential treatment that can lead to inJustices for other litigants, and that this Court will adopt it.
[ ] I concur in reversing the summary judgment dismissing this claim against the Water Resource District. There are numerous issues of fact concerning both its direct and vicarious liability.
[ ] I respectfully Dissent, however, from the majority's Conclusion that the Water Resource District cannot be "a joint contractor or otherwise united in interest" with the City of Minot. In my opinion, most of the issues of fact concerning the District's vicarious liability are equally issues of fact for its unity of interest with the City of Minot. The majority's interesting speculations about different defenses possible for the City and the District mirror undecided factual questions for joint liability.
[ ] A city and a water resource district can jointly exercise their powers. Part of N.D.C.C. § 54-40-01(1) declares: "Two or more governmental units or municipal corporations having in common any portion of their territory or boundary, by agreement entered into through action of their governing bodies, may jointly or cooperatively exercise their respective separate powers, or any power common to the contracting parties or any similar powers . . . ." (My emphasis). The powers of a municipality include: "Flood control projec
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