Killoran v. Kaler: North Dakota Clarifies Rule 12(b)(6) Limits—No Dismissal on Unraised Grounds Without Notice and No Duty to Plead Around Privilege in Defamation Cases

Introduction

In Killoran v. Kaler, 2025 ND 64 (Mar. 28, 2025), the North Dakota Supreme Court delivered a significant clarification on state pleading standards under N.D.R.Civ.P. 8(a) and the limits of dismissal under N.D.R.Civ.P. 12(b)(6). Joe and Lora Killoran and their businesses, Maple Valley Ag Products, LLC, and Maple Valley Ag Chemical, Inc., sued Kip Kaler (the Co-op’s attorney) for slander, intentional infliction of emotional distress (IIED), and unlawful interference with business, alleging that Kaler publicly called them “crooks,” “thieves,” and “untrustworthy” at a Co-op board meeting and annual meeting and told attendees not to do business with them.

The district court dismissed all claims with prejudice. On appeal, the Supreme Court affirmed the dismissal of the IIED claim, but reversed the dismissal of the slander and interference-with-business claims, remanding for further proceedings. The opinion sets two important procedural precedents:

A trial court cannot dismiss on a ground not raised by the movant without first giving the parties notice and an opportunity to respond—even when a Rule 12(b)(6) motion is pending on other grounds (¶¶ 12–15).
At the pleading stage, a defamation plaintiff need not plead around affirmative defenses such as the common‑interest privilege or limited‑purpose public figure doctrine (¶¶ 36–38), and courts must not demand evidentiary specifics (witness names, exact quotations, affidavits) beyond a “short and plain statement” (¶¶ 27–35).

Summary of the Opinion

Slander (Defamation): Reversed and remanded. The district court erred by dismissing on a ground it raised sua sponte without notice (¶¶ 12–15) and by misapplying Rule 8(a) and Rule 12(b)(6) to require evidentiary detail and to disbelieve well‑pleaded facts (¶¶ 27–35). The complaint adequately alleged dates, method and substance of publication, falsity, and damages (¶ 35).
Affirmative Defenses (Privilege/Public Figure): Plaintiffs need not plead malice or otherwise anticipate these defenses at the Rule 12(b)(6) stage (¶¶ 36–38).
IIED: Affirmed. Even accepting plaintiffs’ allegations, Kaler’s statements, in context of advising the Co‑op, were not “extreme and outrageous” as a matter of law (¶¶ 41–48).
Unlawful Interference with Business: Reversed and remanded. Because the slander claim survives, the interference claim—requiring an independent tort—may proceed (¶¶ 49–51).

Analysis

Precedents and Authorities Cited

Albrecht v. First Fed. S&L, 372 N.W.2d 893 (N.D. 1985); Ennis v. Dasovick, 506 N.W.2d 386 (N.D. 1993); Patten v. Green, 397 N.W.2d 458 (N.D. 1986): Recognize a court’s limited authority to dismiss sua sponte for failure to state a claim, emphasizing the need for great caution (¶ 13).
City of Jamestown v. Snellman, 1998 ND 200, 586 N.W.2d 494; Zink v. Enzminger Steel, 2011 ND 122, 798 N.W.2d 863: Establish that sua sponte dismissal requires notice and an opportunity to respond; Killoran extends this requirement to scenarios where a motion is pending but dismissal rests on unraised grounds (¶¶ 13–15).
Krile v. Lawyer, 2022 ND 28, 970 N.W.2d 150: Reaffirms North Dakota’s liberal notice-pleading standard and deference to plaintiffs at Rule 12(b)(6): courts must accept well‑pleaded facts as true, construe in the plaintiff’s favor, and grant dismissal only when it is certain no claim can be proved (¶¶ 9–10, 27–35).
Williams v. State, 405 N.W.2d 615 (N.D. 1987): If the pleadings indicate generally the type of claim, they satisfy Rule 8(a) (¶ 9).
Norberg v. Norberg, 2017 ND 14, 889 N.W.2d 889; Thompson-Widmer v. Larson, 2021 ND 27, 955 N.W.2d 76; Schmitt v. MeritCare, 2013 ND 136, 834 N.W.2d 627: Define “publication” and “falsity” requirements in defamation (¶ 17).
Statutes: N.D. Const. art. I, § 4; N.D.C.C. §§ 14‑02‑01, 14‑02‑02, 14‑02‑04 (defamation definitions and slander per se categories) (¶ 17).
Kluver v. SGJ Holdings, LLC, 2023 ND 65, 988 N.W.2d 569; Krile v. Lawyer, 2020 ND 176, 947 N.W.2d 366; Riemers v. Mahar, 2008 ND 95, 748 N.W.2d 714: Privilege and public‑figure rules as defenses; public figures must prove “actual malice” once the defense applies (¶ 37).
Braden v. Wal-Mart Stores, 588 F.3d 585 (8th Cir. 2009); La Grasta v. First Union Sec., 358 F.3d 840 (11th Cir. 2004): Plaintiffs need not anticipate/negate affirmative defenses in a complaint (¶ 37).
Neppel v. Development Homes, 2021 ND 5, 953 N.W.2d 642; G.K.T. v. T.L.T., 2011 ND 115, 798 N.W.2d 872; Muchow v. Lindblad, 435 N.W.2d 918 (N.D. 1989); Swenson v. Northern Crop Ins., 498 N.W.2d 174 (N.D. 1993): IIED standard, context‑sensitive evaluation, and the high threshold for “extreme and outrageous” (¶¶ 41–48).
Berger v. Sellers, 2023 ND 171, 996 N.W.2d 329: Tortious interference requires an independent tort or unlawful act (¶ 50).
Livingood v. Meece, 477 N.W.2d 183 (N.D. 1991): Dismiss only where it is certain no claim can be proved (¶ 35).

Legal Reasoning

1) Limits on sua sponte dismissal while a motion is pending

Although a Rule 12(b)(6) motion was before the district court, the court dismissed the slander claim on grounds the defendant did not raise. The Supreme Court held that when a court intends to dismiss on a new ground, it must provide notice and an opportunity to respond (¶¶ 12–15). This aligns with Snellman and Zink and clarifies that the notice requirement applies even if a dismissal occurs in the shadow of a pending motion—if the basis differs, notice is still mandatory.

2) Reaffirmation of North Dakota’s liberal notice-pleading and deference at Rule 12(b)(6)

The district court demanded details and evidentiary support far exceeding Rule 8(a)’s “short and plain statement” requirement and refused to accept well‑pleaded facts as true. The Supreme Court identified several missteps (¶¶ 27–35):

Requiring names, titles, roles of meeting attendees; demanding witness identification and exact quotes; referencing the absence of affidavits or corroborating communications (¶¶ 27–28).
Labeling the allegations as “hearsay” and questioning plaintiffs’ firsthand knowledge at the pleading stage—where evidence is not weighed and supporting proof is not required (¶ 29; see also conversion caveat at n.1).
Engaging in a “strawman” analysis to hypothesize alternative meanings or contexts and to question falsity—contrary to the duty to accept well‑pleaded allegations as true and to draw all inferences for the plaintiff (¶¶ 30–34).

Applying de novo review, the Court held the complaint adequately alleged:

Approximate dates and forums (board meeting April 2023; annual meeting June 2023),
Method of publication (spoken statements to third parties),
Substance (assertions that plaintiffs were “crooks,” “thieves,” “untrustworthy,” and directives not to do business with them),
Falsity and knowledge, and
Resulting damages (reputational harm, lost profits, emotional distress) (¶ 35).

Under North Dakota’s standard, this was enough “to inform and notify” the defendant and the court of the claim (¶ 35; ¶ 9).

3) Affirmative defenses: no duty to plead around privilege or public-figure status

Kaler argued that his statements were protected by the common‑interest privilege and that the Killorans were limited‑purpose public figures—both of which, if established, would require the plaintiffs to prove actual malice. The Supreme Court treated these as affirmative defenses and held that a plaintiff does not need to anticipate or negate them in the complaint (¶¶ 36–38). Thus, the complaint’s silence on malice does not doom the claim at the Rule 12(b)(6) stage.

4) IIED: the “extreme and outrageous” threshold not met

The IIED claim failed as a matter of law. Considering the context—remarks made by the Co‑op’s attorney at Co‑op meetings—the Court held that even if the alleged words were spoken, they do not meet the extremely high threshold of conduct “beyond all possible bounds of decency” (¶¶ 41–48). North Dakota’s IIED jurisprudence requires truly egregious, intolerable conduct; insults or harsh criticisms in a business/governance setting do not suffice.

5) Unlawful interference with business: viability restored via independent tort theory

Because unlawful interference requires an independent tort, the district court’s dismissal of slander had collapsed the interference claim. With slander reinstated, the interference claim may proceed on remand (¶¶ 49–51).

Impact and Significance

For North Dakota pleading practice: This opinion robustly reaffirms North Dakota’s liberal notice‑pleading regime. Trial courts may not require quotations, witness lists, corroborating documents, or evidentiary submissions at the pleading stage. Allegations must be taken as true and construed in the plaintiff’s favor; courts must avoid hypothesizing competing facts to negate plausibility at Rule 12(b)(6) (¶¶ 27–35).
Sua sponte dismissals constrained: Even when a motion is pending, a court may not dismiss on different grounds without notice and an opportunity to respond (¶¶ 12–15). This promotes procedural fairness and prevents surprise dismissals.
Defamation-specific guidance: Plaintiffs need not plead around privilege or public‑figure defenses (¶¶ 36–38). This keeps early-stage defamation litigation focused on whether the complaint states the “type of claim,” not on proof or anticipated defenses.
IIED claims remain narrow: The Court underscores the high bar for “extreme and outrageous” conduct. Business-adjacent speech by counsel—even harsh or reputation‑damaging—typically will not qualify absent extreme circumstances (¶¶ 41–48).
Interference claims tethered to torts: The case reiterates that interference with business rises or falls with an “independent tort or otherwise unlawful act” (¶ 50). If defamation survives, interference can proceed; if defamation fails, interference likely falters.

Complex Concepts Simplified

Rule 8(a) “short and plain statement”: A complaint need only give basic notice of the claim—who, what, when, where, and why it is wrongful. It need not attach proof, name all witnesses, or recite exact quotes.
Rule 12(b)(6): A motion to dismiss tests legal sufficiency, not the plaintiff’s proof. Courts accept well‑pleaded facts as true and draw all reasonable inferences for the plaintiff. Dismissal is proper only if it is certain no claim can be proved (¶ 10; ¶ 35).
Sua sponte dismissal: When a judge dismisses a case “on the court’s own initiative,” the parties must receive advance notice and a chance to respond—especially if the dismissal rests on a ground not raised by the moving party (¶¶ 12–15).
Defamation elements (slander): Requires a false and unprivileged publication to a third party that harms reputation. North Dakota’s statute lists categories including charges of crime and statements injuring a person in their business (N.D.C.C. § 14‑02‑04(1), (3), (5)) (¶ 17).
Affirmative defenses (common‑interest privilege; limited‑purpose public figure): These are defenses the defendant must raise and establish. The plaintiff need not plead facts to defeat them at the complaint stage (¶¶ 36–38). If they apply later, a public figure must prove “actual malice” (knowledge of falsity or reckless disregard for truth).
IIED “extreme and outrageous” standard: Liability is rare and reserved for truly egregious conduct. Insults and even damaging criticisms, without more, usually do not qualify (¶¶ 41–48).
Independent tort for interference: To sue for unlawful interference with business, a plaintiff generally must show the defendant committed some other tort (e.g., defamation) that interfered with their business relations (¶ 50).

What Remains on Remand

Privilege and public‑figure defenses: The district court may consider whether the common‑interest privilege applies to statements made at Co‑op meetings and whether the plaintiffs are limited‑purpose public figures regarding Co‑op business. If established, plaintiffs will bear the burden to prove actual malice by clear and convincing evidence.
Actionable fact vs. protected opinion: Whether calling someone a “crook” or “thief” is a verifiable assertion of criminal conduct (typically actionable) or nonactionable hyperbole/opinion will be a merits question, assessed in context.
Falsity and truth defenses: The court will later evaluate whether the statements were false or substantially true; truth defeats defamation.
Damages and causation: Plaintiffs will need to prove reputational and economic harm and tie the harm to the publications; categories under N.D.C.C. § 14‑02‑04 may affect damage presumptions and proof.
Interference claim: Will rise or fall with proof of an independent tort (here, slander) or other unlawful act.

Conclusion

Killoran v. Kaler meaningfully refines North Dakota civil practice at the pleading stage. First, it fortifies procedural fairness by holding that a district court cannot dismiss on grounds not raised by a Rule 12(b)(6) movant without first giving notice and an opportunity to respond. Second, it reaffirms that under North Dakota’s liberal notice-pleading regime, defamation plaintiffs need not provide exact quotations, identify witnesses, or attach evidence in their complaint—and they need not anticipate affirmative defenses such as the common‑interest privilege or limited‑purpose public figure doctrine.

Substantively, the Court underscores the narrowness of IIED in North Dakota: even sharp, reputation‑harming commentary by counsel in a business or governance context does not, without more, meet the “extreme and outrageous” threshold. And it reiterates that interference-with-business claims require an independent tort—here potentially satisfied by the revived slander claim.

The decision will shape early litigation conduct across defamation and other tort cases in North Dakota, curbing premature dismissals, centering the inquiry on the sufficiency of notice rather than evidentiary corroboration, and reserving affirmative defenses for adjudication at later stages or on a fuller record.