Presiding-Judge Authority to Enter Vexatious-Litigant Pre-Filing Orders (with Notice-and-Opportunity-to-Respond Due Process) and Rule 38 Sanctions for Nonappealable/Unpreserved Appellate Issues

I. Introduction

In Bauer v. Adam, 2026 ND 67, Christopher Bauer (self-represented) appealed three categories of rulings arising out of a post-employment lawsuit against Harlow’s School Bus Service, Inc. (“Harlow’s”) and multiple current/former employees. After Bauer’s employment ended, he filed a wide-ranging civil action asserting, among other theories, civil conspiracy and defamation. Harlow’s intervened; multiple motions followed, including dismissal motions, sanctions requests, and—eventually—a vexatious-litigant pre-filing order entered by the presiding judge of the Northwest Judicial District on the court’s own motion.

The Supreme Court of North Dakota addressed: (1) appellate jurisdiction over interlocutory orders (default judgment denial and Rule 11 sanctions); (2) the appealability, authority, and due-process sufficiency of an Administrative Rule 58 vexatious-litigant pre-filing order; and (3) whether to award costs and attorney’s fees for a partially meritless/frivolous appeal.

II. Summary of the Opinion

  • Interlocutory appeal dismissed in part: The Court dismissed Bauer’s appeal from (a) the order denying default judgment and (b) a later order imposing Rule 11 sanctions, holding neither order was appealable because no final judgment had been entered and the orders did not fall within N.D.C.C. § 28-27-02.
  • Pre-filing order affirmed: The Court affirmed the presiding judge’s pre-filing order designating Bauer a vexatious litigant under N.D. Sup. Ct. Admin. R. 58 and N.D.C.C. ch. 28-36.
  • Rule 38 sanctions imposed for the appeal: Although the challenge to the pre-filing order was not deemed frivolous merely because it failed, Bauer’s pursuit of nonappealable issues and unpreserved arguments warranted sanctions. The Court awarded double costs to Appellees and $1,000 in attorney’s fees to Harlow’s.

III. Analysis

A. Precedents Cited

1. Appellate jurisdiction and appealability

  • Pinks v. Kelsch, 2024 ND 15: Supplied the governing framework for determining appealability of interlocutory orders—first, whether the order fits N.D.C.C. § 28-27-02; second, whether Rule 54(b), N.D.R.Civ.P., is satisfied when fewer than all claims are resolved. The Court used this structure to end the inquiry once it concluded the challenged orders were not within § 28-27-02.
  • Fritz v. Hassan, 316 N.W.2d 797 (N.D. 1982): Directly supported the holding that an order denying a motion for default judgment is not appealable under N.D.C.C. § 28-27-02.
  • Gast Constr. Co. v. Brighton P'ship, 422 N.W.2d 389 (N.D. 1988) and State ex rel. Olson v. Nelson, 222 N.W.2d 383 (N.D. 1974): Reinforced that an order assessing attorney’s fees/sanctions without adjudicating the merits is generally not appealable. These cases anchored the dismissal of Bauer’s appeal from the August 2025 Rule 11 sanctions order.
  • Anderson v. Krueger, 2025 ND 161: Applied to reject consideration of issues not preserved below where the appellant fails to cite record support showing preservation (or articulate a basis to reach unpreserved issues). The Court used it to decline Bauer’s allegations of collusion/improper influence and other asserted litigation misconduct.

2. Authority for, and review of, vexatious-litigant orders

  • Lavallie v. Jay, 2020 ND 147: Provided two core jurisdiction principles: district courts are courts of general jurisdiction and enjoy a presumption of jurisdiction; a challenger bears the burden to show lack of subject matter jurisdiction. The Court invoked this to reject Bauer’s “no jurisdiction” claim against the presiding judge’s pre-filing order.
  • Rath v. Rath, 2022 ND 105: This was the Court’s primary modern authority on vexatious-litigant regulation. It supplied (a) the recognition of inherent judicial authority to control dockets and prevent abuse, (b) the linkage between N.D.C.C. § 28-36-04 and Supreme Court rulemaking, (c) the abuse-of-discretion standard of review for vexatious-litigant findings, and (d) the proposition that Admin. R. 58 contains procedural safeguards.

3. Due process standards in this procedural setting

  • In re Hehn, 2021 ND 20: Supplied the baseline due-process formulation—notice and a meaningful opportunity for a hearing appropriate to the nature of the case. The Court measured the Admin. R. 58 process against this standard.
  • Glaum v. State, 2024 ND 86: Cited in connection with Bauer’s failure to request a hearing and his failure to argue how the court abused its discretion by not holding one. The Court used it to underscore that an appellant must develop an abuse-of-discretion argument, not merely assert entitlement.
  • City of Dickinson v. Helgeson, 2026 ND 34: Reinforced (and updated) the Court’s rejection of due-process challenges to Admin. R. 58, emphasizing that required findings, filing requirements, and notice constitute sufficient safeguards to prevent constitutional violations (citing Rath).

4. Frivolous appeals and attorney’s fees

  • In re Emelia Hirsch, June 9, 1994, Irrevocable Tr., 2022 ND 89: Provided the definition of a frivolous appeal (“flagrantly groundless”) and the principle that fees are appropriate where the appellant should have known success was impossible. It also set the expectation that significant attorney-fee requests should be supported by an affidavit documenting work performed.
  • In re Emelia Hirsch, June 9, 1994, Irrevocable Tr., 2025 ND 79: Served as a practical comparator for awarding double costs and a $1,000 attorney-fee amount where a fee affidavit is absent, demonstrating the Court’s willingness to impose a modest, fixed award in that circumstance.

B. Legal Reasoning

1. The Court’s strict jurisdictional gatekeeping over interlocutory orders

The Court treated appealability as a threshold matter: absent a statutory basis under N.D.C.C. § 28-27-02, the Supreme Court lacks jurisdiction and must dismiss. Applying that framework, it held that (i) denial of default judgment and (ii) an order imposing Rule 11 sanctions before final judgment do not qualify as appealable orders. Because Bauer’s civil conspiracy and defamation claims remained pending, there was no final judgment, and the appeal could not proceed as to those rulings.

2. Appealability and authority for the pre-filing order

Unlike the other two rulings, the Court recognized a specific appeal pathway for vexatious-litigant pre-filing orders: Admin. R. 58(6)(a) expressly authorizes an appeal under N.D.C.C. § 28-27-02 and N.D.R.App.P. 4. On authority, the Court relied on Admin. R. 58(3)(a), which explicitly permits a presiding judge to designate a litigant vexatious “on the court’s own motion.” Combined with the district court’s general jurisdiction (Lavallie v. Jay) and inherent docket-control power (Rath v. Rath), Bauer’s “no jurisdiction” argument failed.

3. Due process: notice plus opportunity, not an automatic hearing

The Court framed procedural due process as requiring fundamental fairness—notice and a meaningful opportunity for a hearing appropriate to the case (In re Hehn). Here, the presiding judge issued a proposed pre-filing order with findings, gave 14 days to respond, and explained that a hearing might be granted if a response was filed. Bauer filed papers contesting jurisdiction, due process, and the vexatious-litigant designation but did not request a hearing. The Court emphasized that Admin. R. 58 embeds procedural safeguards (Rath v. Rath) and that Bauer did not articulate what additional constitutional process was required. In line with City of Dickinson v. Helgeson, the Court found the safeguards sufficient.

4. The vexatious-litigant finding: focus on conduct within a litigation

The presiding judge found Bauer met multiple definitions under Admin. R. 58(2)(d), including the “in any litigation, repeatedly files unmeritorious motions/pleadings/papers” route (Admin. R. 58(2)(d)(3)). On abuse-of-discretion review (Rath v. Rath), the Supreme Court focused on the record: in less than ten months, the docket reached 254 entries, and the order cited extensive examples of rapid, repetitive, legally unsupported filings and tactics creating burden, expense, or delay. Critically, Bauer did not meaningfully challenge the presiding judge’s specific factual findings supporting the (d)(3) criterion; his counter-assertion that prior cases were not dismissed as frivolous did not address the operative standard, which centers on repeated unmeritorious filings and frivolous/burdensome tactics within litigation.

5. Rule 38 sanctions: separating a non-frivolous appealable issue from frivolous extras

The Court drew a careful line. Because Admin. R. 58(6)(a) makes the pre-filing order appealable, Bauer’s attempt to challenge that order was not automatically frivolous merely because it lost (In re Emelia Hirsch, June 9, 1994, Irrevocable Tr., 2022 ND 89). But Bauer also (i) appealed plainly nonappealable orders and (ii) raised unpreserved claims without record citations required by N.D.R.App.P. 28. For those components, the Court concluded Bauer should have known success was impossible. As a result, the Court awarded double costs to Appellees and attorney’s fees to Harlow’s.

On the fee amount, Harlow’s did not supply an affidavit of work performed. Consistent with the In re Emelia Hirsch line of cases, the Court declined to calculate a “reasonable value” based on undocumented work and instead imposed a fixed $1,000 fee award—mirroring the approach in In re Emelia Hirsch, June 9, 1994, Irrevocable Tr., 2025 ND 79.

C. Impact

  • Reinforces the distinct appellate status of pre-filing orders: The decision underscores that vexatious-litigant pre-filing orders are uniquely appealable even when the underlying civil case is ongoing—while routine interlocutory litigation orders (default-denial, Rule 11 sanctions) generally are not.
  • Strengthens presiding-judge administrative authority: By affirming a sua sponte pre-filing order entered by a presiding judge under Admin. R. 58(3)(a), the Court confirms the judiciary’s structural capacity to respond to abusive filing behavior without waiting for a party’s motion.
  • Clarifies due-process expectations in the Rule 58 setting: Notice and an opportunity to respond—plus discretionary hearing if requested/appropriate—will typically satisfy due process. Litigants who want a hearing should request it and then meaningfully argue abuse of discretion if one is denied.
  • Signals appellate risk for “kitchen-sink” appeals: Even where one issue is legitimately appealable, adding nonappealable rulings and unpreserved accusations can trigger Rule 38 sanctions, including double costs and attorney’s fees.
  • Practical fee lesson for appellees: If seeking more than a modest or “token” award, submit an affidavit documenting appellate work; otherwise, the Court may award a flat amount rather than a lodestar-type calculation.

IV. Complex Concepts Simplified

  • “Interlocutory order”: A ruling made while the case is still pending (not a final judgment). Most interlocutory orders cannot be appealed immediately unless a statute authorizes it.
  • N.D.C.C. § 28-27-02: The statute listing which orders can be appealed. If an order isn’t listed (and no final judgment exists), the Supreme Court usually lacks jurisdiction.
  • Rule 54(b), N.D.R.Civ.P.: A mechanism that can allow appeal of a final decision on fewer than all claims/parties in limited circumstances, but only if properly invoked by the district court.
  • Rule 11 sanctions: Penalties for filing papers that are frivolous, legally unreasonable, or filed for improper purposes. A sanctions order entered mid-case is typically not immediately appealable.
  • “Vexatious litigant” and “pre-filing order”: Under Admin. R. 58 and N.D.C.C. ch. 28-36, a litigant who repeatedly files unmeritorious papers or uses tactics intended to burden/delay can be required to obtain court approval before filing new lawsuits or additional documents.
  • Rule 38 (frivolous appeal): Allows the Supreme Court to award damages, costs (single or double), and attorney’s fees when an appeal is “flagrantly groundless.”

V. Conclusion

Bauer v. Adam confirms three practical rules in North Dakota procedure: (1) most mid-case rulings—like default-judgment denials and Rule 11 sanctions—are not immediately appealable absent statutory authorization and therefore will be dismissed for lack of jurisdiction; (2) a presiding judge may, on the court’s own motion, enter a vexatious-litigant pre-filing order under Admin. R. 58, and notice plus an opportunity to respond (with a discretionary hearing) ordinarily satisfies due process; and (3) even when one portion of an appeal is properly taken, adding nonappealable or unpreserved issues can justify Rule 38 sanctions, including double costs and a fixed attorney-fee award where the appellee does not document its fees by affidavit.