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Hansen v. Scott6/10/2002
may be, a viable theory for assessing fault against a nonparty, i.e., a "person" under N.D.C.C. § 32-03.2-02, but for some reason that person is not a party to the lawsuit or recovery is not permitted against that person. Our cases about potential mootness under N.D.R.Civ.P. 54(b) suggest an analogous principle. See Gessner, 529 N.W.2d at 869-70 (improper service of process on one defendant); Ingalls, 529 N.W.2d at 872-73 (same); Bulman, 503 N.W.2d at 241-42 (sovereign immunity defense).
[ ] As this appeal is presently postured, the trial court has ruled that the Texas defendants had no duty to the daughters, and that the daughters' allegations against the Texas defendants do not subject them to tort liability. The Texas defendants therefore can not be said to have "contributed to the injury" within the meaning of N.D.C.C. § 32-03.2-02 based upon the trial court's ruling on the issue of duty. Although Lawrence may be entitled to raise an "empty chair" defense against Brian Erickstad, in this posture Lawrence cannot raise an empty chair defense against the Texas defendants. Any evidence about the Texas defendants' potential liability would be irrelevant, and the trial court would not be required to instruct the jury to determine a percentage of fault attributable to the Texas defendants. In this posture, no allocation of fault to the Texas defendants could occur, and a determination that Lawrence, or Lawrence and Brian Erickstad, were 100 percent at fault without a consideration of the potential fault of the Texas defendants would not render moot issues about the Texas defendants' potential fault. Under those circumstances, any personal jurisdiction issues stemming from resolution of the Texas defendants' duty will be present regardless of the outcome of the claims against Lawrence and will not be mooted or made advisory by future developments in the trial court. See Symington, 1997 ND 93, 8, 563 N.W.2d 400. We therefore conclude the trial court did not abuse its discretion in certifying the dismissal of the Texas defendants for lack of personal jurisdiction as final under N.D.R.Civ.P. 54(b).
III.
[ ] Under N.D.R.Civ.P. 4(b)(4), a court of this state may acquire personal jurisdiction over any person by service of process as provided in Rule 4, or by a voluntary general appearance. Rule 4(d)(3), N.D.R.Civ.P., provides methods for service of process on any person located outside the state if that person is subject to the personal jurisdiction of the courts of this state. We have said N.D.R.Civ.P. 4(b)(2) authorizes North Dakota courts to exercise personal jurisdiction over nonresident defendants to the fullest extent permitted by due process, and requires a two-prong determination for resolving the question of personal jurisdiction over nonresident defendants. Auction Effertz, Ltd. v. Schecher, 2000 ND 109, 6, 611 N.W.2d 173; Hust v. Northern Log, Inc., 297 N.W.2d 429, 431 (N.D. 1980). First, the requirements of one of the applicable subparagraphs of N.D.R.Civ.P. 4(b)(2) must be satisfied, and second, the nonresident must have sufficient minimum contacts with North Dakota so the exercise of personal jurisdiction does not offend traditional notions of substantial justice, fair play, or due process. Rodenburg, 2001 ND 139, 15, 632 N.W.2d 407; Schecher, at 6; Hust, at 431.
[ ] The parties agree the basis for claiming personal jurisdiction over the Texas defendants is N.D.R.Civ.P. 4(b)(2)(C), which provides:
(b) Jurisdiction Over Person.
(2) Personal Jurisdiction Based Upon Contacts. A court of this state may exercise personal jurisdiction over a person who acts directly or by an agent as to any claim for relief arising from the person's hav
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