IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2023 ND 42

William Kainz and GeoChemicals, LLC, Plaintiffs and Appellants

v.

Jacam Chemical Company 2013, LLC, Defendant and Appellee

No. 20220135

Appeal from the District Court of Stark County, Southwest Judicial District, 

the Honorable William A. Herauf, Judge.

REVERSED AND REMANDED.

Opinion of the Court by Bahr, Justice.

Zachary E. Pelham (argued), Bismarck, ND, Jordan L. Selinger (appeared), 

Dickinson, ND, Kirsten Tuntland (on brief), Bismarck, ND, and Sean D. Walsh

(on brief), Wichita, KS, for plaintiffs and appellants GeoChemicals, LLC.

Nicholas C. Grant (argued) and Shea A. Miller (on brief), Dickinson, ND, and 

Janet A. Hendrick (on brief), Dallas, TX, for defendant and appellee.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

MARCH 3, 2023 

STATE OF NORTH DAKOTA
1

Kainz v. Jacam Chemical Co. 2013

No. 20220135

Bahr, Justice.

[¶1] William Kainz and GeoChemicals, LLC (collectively “Plaintiffs”) appeal

from the district court’s order granting Jacam Chemical Co. 2013, LLC’s

motion to abate and an order and judgment awarding attorney’s fees to Jacam.

Plaintiffs argue the district court erred by abating the action and by awarding 

attorney’s fees. We conclude the district court misapplied the law in granting 

the motion to abate and abused its discretion by awarding attorney’s fees. We 

reverse and remand.

I

[¶2] In June 2019, Jacam sued Plaintiffs in Kansas, seeking damages for 

various claims, including breach of contract against Kainz and tortious 

interference against GeoChem. Jacam claimed Kainz had been employed by 

Jacam, Kainz left his employment with Jacam and accepted an employment 

offer from GeoChem, and Kainz shared Jacam’s confidential information and 

trade secrets with GeoChem. Jacam alleged Kainz breached his confidentiality 

obligations and the non-competition and non-solicitation clauses in his 

employee agreement with Jacam and GeoChem encouraged, induced, or 

assisted Kainz to violate his contract to unfairly compete against Jacam. 

Jacam also sought a temporary restraining order against Plaintiffs.

[¶3] In August 2019, Plaintiffs sued Jacam in North Dakota, alleging Kainz 

has lived and worked in North Dakota at all relevant times, his employment 

for Jacam was performed exclusively in North Dakota, and Jacam brought its 

action in Kansas to avoid the application of North Dakota law and to restrain 

Kainz from fulfilling the terms of his employment agreement with GeoChem. 

Plaintiffs sought damages for tortious interference with a business contract. 

Plaintiffs also requested an injunction, the district court declare the forum 

selection, choice of law, non-competition, and non-solicitation clauses in Kainz’s 

employee agreement with Jacam are unenforceable, and the district court 
2

declare GeoChem cannot be restrained from employing Kainz beyond what is 

otherwise prohibited under North Dakota law.

[¶4] Plaintiffs moved for a preliminary injunction enjoining Jacam from 

taking any action to enforce the non-competition and non-solicitation clauses. 

Jacam opposed the motion. In May 2021, the district court granted Plaintiffs’ 

motion and ordered Kainz is free to compete against Jacam, to solicit Jacam’s 

clients in North Dakota, and to be employed by any employer in this state.

[¶5] In August 2021, Plaintiffs amended their complaint to include a claim 

for abuse of process. In September 2021, Jacam filed an answer to the 

complaint.

[¶6] In November 2021, Jacam moved to abate the action in favor of the action

pending in Kansas. Jacam argued preference should be given to the Kansas

action because it was filed first and it involves the same parties and the same 

issues. Plaintiffs opposed the motion. In January 2022, the district court 

granted Jacam’s motion to abate and stayed the action pending resolution of 

the Kansas action. Plaintiffs moved for reconsideration, and the court denied 

their motion.

[¶7] Jacam moved for attorney’s fees, requesting the fees it incurred in 

responding to the motion for reconsideration. The district court granted 

Jacam’s motion and entered an order and judgment awarding attorney’s fees.

II

[¶8] Jacam argues the appeal must be dismissed because the order abating 

the action is not an appealable order. Plaintiffs argue the order is appealable 

under N.D.C.C. § 28-27-02(1). Alternatively, they request a supervisory writ if 

the order is not appealable.

[¶9] “Only judgments and decrees which constitute a final judgment of the 

rights of the parties to the action and orders enumerated by statute are 

appealable.” Energy Transfer LP v. N.D. Private Investigative and Sec. Bd., 

2022 ND 84, ¶ 7, 973 N.W.2d 404 (quoting Eubanks v. Fisketjon, 2021 ND 124, 

¶ 4, 962 N.W.2d 427). The right to appeal is governed by statute, and an appeal 
3

must be dismissed if there is no statutory basis for the appeal. Whitetail Wave 

LLC v. XTO Energy, Inc., 2022 ND 171, ¶ 6, 980 N.W.2d 200. Under N.D.C.C. 

§ 28-27-02(1), an order in a civil case is appealable if it affects “a substantial 

right made in any action, when such order in effect determines the action and 

prevents a judgment from which an appeal might be taken[.]” If an 

interlocutory order is appealed, it must meet one of the statutory criteria in 

N.D.C.C. § 28-27-02, and if it does not, then the appeal must be dismissed. 

Energy Transfer, at ¶ 7.

[¶10] Plaintiffs appeal from the district court’s order granting Jacam’s motion 

to abate. The order granting the motion to abate did not dismiss the action; 

rather, the court stated a final judgment in the Kansas action could bar the 

issues in this case and the court concluded it must abate the action pending 

resolution of the Kansas action. No order dismissing the action was entered;

therefore, the action is still pending. The order granting Jacam’s motion to 

abate is not a final order.

[¶11] Plaintiffs argue the order is appealable because it affects substantial 

rights, in effect determines the action, and prevents a judgment. We have held 

an order that has the practical effect of terminating the litigation in the 

plaintiff’s chosen forum and effectively forecloses litigation in the courts of this 

state may be appealable. See Rodenburg v. Fargo-Moorhead Young Men’s 

Christian Ass’n, 2001 ND 139, ¶ 12, 632 N.W.2d 407.

[¶12] Plaintiffs claim this case is similar to Triple Quest, Inc. v. Cleveland Gear 

Co., Inc., 2001 ND 101, ¶ 5, 627 N.W.2d 379, in which the district court 

dismissed an action without prejudice after determining the proper venue for 

the case was in Ohio under a forum selection clause. This Court held the order 

dismissing the case without prejudice was appealable, explaining “a trial 

court’s dismissal without prejudice has the practical effect of terminating the 

litigation in the plaintiff’s chosen forum, and is therefore final in the sense that 

it terminates the controversy in either the state or federal court in which the 

action was brought.” Id. at ¶ 8. We also explained the court’s order had the 

practical effect of determining the action because it terminated the action in 

North Dakota “by permanently putting the parties out of any North Dakota 
4

district court.” Id. ¶ 10. We stated the order dismissing the action prevented a 

judgment from which an appeal might be taken because there was no action 

remaining in this state, the same action could not be brought in this state, and 

the district court’s decision would be res judicata in an Ohio court. Id.

[¶13] Although the action in this case was not dismissed and is still pending, 

res judicata may apply to preclude Plaintiffs from seeking relief in this state. 

The district court wrote in its Order Granting Motion to Abate that “[a] final 

judgment or decree in the Kansas case may very well operate to bar the issues 

of the North Dakota case.” Jacam, in its brief, acknowledged if “the Kansas 

action terminates in a final judgment, this case must be dismissed on res 

judicata grounds.” Thus, the order granting the motion to abate may have the 

practical effect of terminating the litigation in Plaintiffs’ chosen forum. Under 

these facts and circumstances, we conclude the order is appealable.

[¶14] Because we conclude the order is appealable, we do not address 

Plaintiffs’ alternative request we review the district court’s decision under our 

supervisory writ authority.

III

[¶15] Plaintiffs argue the district court erred by abating the action. They claim 

the court must decide their claims related to the non-competition and nonsolicitation clauses under North Dakota law, the court was not required to 

abate the action under Lucas v. Porter, 2008 ND 160, 755 N.W.2d 88, and the 

court erred by concluding Jacam did not waive abatement.

[¶16] The district court considered the discussion related to abatement in 

Lucas, 2008 ND 160, and determined the action should be abated. The court 

rejected Plaintiffs’ argument Jacam waived abatement, explaining the issue of 

abatement was sufficiently raised through the parties’ pleadings and it was 

proper for the court to rule on the issue. The court further explained:

Secondly, the Court finds that the Kansas case involving 

these parties was first in time and is still pending. It is anticipated 

that the Kansas case will be going to trial during the summer of 

2022.
5

Lastly, this Court finds that there is sufficient identity 

between the Kansas and North Dakota case so that abatement 

does apply. A final judgment or decree in the Kansas case may very 

well operate to bar the issues of the North Dakota case. The 

evidence to be submitted in both cases appears to be relatively the 

same and it arises out of the same series of transactions. Thus, this 

Court must abate its action pending resolution of the Kansas 

action.

The court subsequently denied Plaintiffs’ motion to reconsider, explaining the 

court already considered Plaintiffs’ arguments, Plaintiffs did not give any new 

evidence or argument, and the court stood firm on its ruling.

[¶17] In Lucas, 2008 ND 160, ¶ 11 (quoting Plott v. Kittelson, 228 N.W. 217, 

218-19 (N.D. 1929)), this Court discussed abatement and explained:

If the court, upon a consideration of the proof adduced, finds that 

another action is pending between the same parties and for the 

same cause, its judgment should be that the action abate . . . . But 

the defense of another action pending does not authorize a 

judgment on the merits of the case. Hence the court should not give 

a general judgment in favor of the defendant, nor a judgment that 

the plaintiff take nothing by his action. . . . In other words, if it 

appears from the showing made that there is another action 

pending, the action abates. If the other action is tried and 

judgment is entered, it is a bar to the subsequent action. If it is 

dismissed without prejudice, the abated action may be revived.

We affirmed the district court’s dismissal of the action, holding the prior action 

and the current action arose out of the same facts and circumstances and the 

current action constituted an improper splitting of a cause of action. Lucas, at 

¶ 1.

[¶18] However, the two actions at issue in Lucas were both brought in North 

Dakota courts. Here, the parties have lawsuits pending in North Dakota and 

Kansas. The mere pendency of an action in one state, alone, does not require

abating a suit in a second state involving the same parties and the same subject 

matter. See In re Vinyl Tech., Inc., 352 S.W.3d 810, 813 (Tex. Ct. App. 2011); 1 

C.J.S. Abatement and Revival § 61 (2022 update); Restatement (First) of 
6

Conflict of Laws § 619 (1934). This Court previously recognized that an action 

pending in another state is not grounds for abatement, stating:

Although there has been some difference of opinion on the 

question, it is now well settled that in the application of this 

doctrine the courts of the several states are to be regarded as 

foreign to each other, so that the pendency of an action in personam 

in one state, is not, as a rule, either at law or in equity, pleadable 

in abatement of an action subsequently commenced in another 

state between the same parties on the same cause, even though 

the court of the state in which the prior suit is pending has 

complete jurisdiction. A recovery in one may be pleaded to the 

further continuance of the other, but until that is obtained, or 

unless the court in its discretion grants a continuance by reason of 

the pendency of the first action, each may proceed to judgment and 

execution, when a satisfaction of either will require a discharge of 

both. But while the pendency of a prior suit in another state is not 

pleadable in abatement as a matter of right, the court may in its 

discretion stay or suspend the second suit to await the decision in 

the prior one.

The rule that the pendency of an action in another state is 

not ground for abatement is not affected by the provisions of the 

codes that the pendency of another action between the same 

parties for the same cause may be made a ground for demurrer or 

set up as a defense in the answer, but such provisions are 

construed as applying only to suits pending in the same state.

Burdick v. Mann, 236 N.W. 340, 346 (N.D. 1931) (quoting 1 C.J. Abatement § 

113 (1914)). See also Vinyl Tech, at 813 (stating each state is sovereign, and 

“states do not acknowledge the right of any other state to hinder its own 

sovereign acts or proceedings.”); Tonnemacher v. Touche Ross & Co., 920 P.2d 

5, 8 (Ariz. Ct. App. 1996) (stating actions filed in different states invoke the 

authority of independent sovereigns and neither sovereign is required to yield 

to the other).

[¶19] Abatement and a stay of proceedings are not the same. As one court

explained:
7

While a “stay of proceedings” and an “abatement” are in 

some respects similar, they are not identical. Abatement is a 

matter of right and the general rule is that, “the pendency of a 

prior suit in one state cannot be pleaded in abatement or in bar to 

a subsequent suit in another state, even though both suits are 

between the same parties and upon the same cause of action.”

However, “the court in which the second action is brought may in 

its discretion stay or suspend that suit, awaiting decision in the 

first one, or, influenced by a spirit of comity, may refuse to 

entertain it, if the same relief may be awarded in the prior suit.” 

Evans v. Evans, 186 S.W.2d 277, 279 (Tex. Ct. App. 1945) (citations omitted); 

see also 1 Am. Jur. 2d Abatement, Survival, and Revival § 3 (2022 update) 

(same); 19 A.L.R.2d 301, §§ 1-2 (originally published 1951) (same). 

[¶20] Because the two actions here are in different states, the rules for 

abatement do not apply. However, the district court had discretion to stay the 

action.

[¶21] In State ex rel. Stenehjem v. Simple.net, Inc., 2009 ND 80, ¶¶ 13-15, 765 

N.W.2d 506, we determined whether the district court abused its discretion by 

denying a motion to stay proceedings in the state case until an appeal in a 

separate federal action had been decided. We explained, “Comity is a principle 

under which a court voluntarily defers action on a matter properly within its 

jurisdiction until a court in another jurisdiction, with concurrent jurisdiction 

and who is already cognizant of the litigation, has an opportunity to pass upon 

the matter.” Id. at ¶ 14. We further explained:

Under the principles of comity, the court that first acquires 

jurisdiction will retain it. Comity is not a right, but is a willingness 

to grant privilege out of deference and good will. Because comity is 

not a right and is within the court’s discretion, the court’s decision 

whether to grant a stay on the basis of comity is reviewed for an 

abuse of discretion. A court abuses its discretion when it acts in an 

arbitrary, unreasonable, or unconscionable manner, misinterprets 

or misapplies the law, or when its decision is not the product of a 

rational mental process leading to a reasoned determination.
8

Id. (citations omitted); see also Lohnes v. Cloud, 254 N.W.2d 430 (N.D. 1977)

(discussing comity).

[¶22] Courts may consider various factors in deciding whether to stay an

action while another action is pending in another jurisdiction. 1 C.J.S. 

Abatement and Revival § 61 (2022 update); 19 A.L.R.2d 301, § 5. Other courts 

have said those factors include whether the two actions have similar parties, 

causes of action, issues, and seek the same relief. See Chicoine v. Wellmark, 

Inc., 894 N.W.2d 454, 460 (Iowa 2017); Griffith v. Griffith, 341 S.W.3d 43, 54 

(Tex. Ct. App. 2011). Other factors may also be considered, including which 

action was filed first, the amount of time that might pass before the prior 

proceeding concludes, the threat of multiple and vexatious litigation, judicial 

economy, the interests of the two forums, the likelihood of obtaining complete 

relief in the other jurisdiction, the res judicata effect of a foreign judgment, and

the convenience of the forum. See Van Der Hooning v. Bd. of Trustees of Univ. 

of Ill., 972 N.E.2d 175, 182 (Ill. Ct. App. 2012); Chicoine, at 460; Leadford v. 

Leadford, 8 Cal. Rptr.2d 9, 12 (Cal. Ct. App. 1992); Griffith, at 54-55.

[¶23] “Where a prior foreign action involves the same parties and the same 

issues and is pending before a court capable of doing prompt and complete 

justice, the court’s discretion may be freely exercised in favor of a stay.” 

Chicoine, 894 N.W.2d at 460 (quoting First Midwest Corp. v. Corporate Fin. 

Assocs., 663 N.W.2d 888, 891 (Iowa 2003)). However, “where the parties or 

issues are different, a stay will only be justified in rare circumstances.” 

Chicoine, at 460; see also Landis v. N. Am. Co., 299 U.S. 248, 255 (1936) (same).

[¶24] The district court had discretion in this case to stay the proceedings on 

the basis of comity. However, the court’s decision was decided on the doctrine 

of abatement, concluding, “this Court must abate its action pending resolution 

of the Kansas action.” (Emphasis added.) The court did not apply the correct 

law; the court incorrectly decided the issue under the doctrine of abatement 

rather than principles of comity.

[¶25] Because the district court misapplied the law, we conclude the order 

abating the action must be reversed. On remand, we direct the district court to 
9

determine whether the proceedings should be stayed under principles of 

comity.

IV

[¶26] Plaintiffs argue the district court erred by deciding their motion for 

reconsideration was frivolous and by awarding attorney’s fees under N.D.C.C. 

§ 28-26-01.

[¶27] The district court may award attorney’s fees and other costs for frivolous 

claims under N.D.C.C. § 28-26-01(2), which states:

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. This subsection does not require 

the award of costs or fees against an attorney or party advancing 

a claim unwarranted under existing law, if it is supported by a 

good-faith argument for an extension, modification, or reversal of 

the existing law.

[¶28] The court’s discretion under the statute is in determining whether a 

claim is frivolous. Strand v. Cass County, 2008 ND 149, ¶ 13, 753 N.W.2d 872. 

The court’s “discretionary determinations under N.D.C.C. § 28-26-01(2) will 

not be overturned on appeal absent an abuse of discretion.” Bolinske v. 

Sandstrom, 2022 ND 148, ¶ 30, 978 N.W.2d 72 (quoting Sagebrush Res., LLC 

v. Peterson, 2014 ND 3, ¶ 15, 841 N.W.2d 705). A court may award attorney’s

fees and costs for frivolous post-judgment motions under N.D.C.C. § 28-26-

01(2). See Lessard v. Johnson, 2022 ND 32, ¶ 33, 970 N.W.2d 160. A claim is 

frivolous if there is such a complete absence of facts or law a reasonable person 

could not have expected a court would render judgment in that person’s favor. 

N.D. Private Investigative and Sec. Bd. v. TigerSwan, LLC, 2019 ND 219, ¶ 20, 

932 N.W.2d 756.
10

[¶29] The district court awarded attorney’s fees to Jacam under N.D.C.C. § 28-

26-01(2) after determining Plaintiffs’ motion for reconsideration was frivolous 

and Jacam was the prevailing party on the motion. The court explained

Plaintiffs used the same arguments in the motion for reconsideration and in 

the brief opposing abatement, motions for reconsideration are not to be used to 

relitigate the same issues, and the court does not have discretion to consider 

the same arguments again. The court concluded the motion for reconsideration

was frivolous because Plaintiffs raised issues the court had previously 

considered.

[¶30] North Dakota law does not recognize motions to reconsider, but courts

may treat a motion to reconsider as a motion to alter or amend a judgment 

under N.D.R.Civ.P. 59(j) or a motion for relief under N.D.R.Civ.P. 60(b). Wheeler 

v. Sayler, 2022 ND 220, ¶ 9, 982 N.W.2d 573. Plaintiffs moved for 

“reconsideration” under N.D.R.Civ.P. 59(j). This Court has said “Rule 59(j), 

N.D.R.Civ.P., provides an appropriate vehicle for a party . . . to draw the court’s 

attention to its view that through mistake the court has not granted it all the 

relief to which it is entitled.” City of Mandan v. Mi-Jon News, Inc., 381 N.W.2d 

540, 543 (N.D. 1986). We have also said a Rule 59(j) motion is advisable when 

favorable action by the district court will obviate the necessity of an appeal. Id.

[¶31] That the motion for reconsideration raised issues the district court 

previously considered did not make it frivolous. A court has grounds to deny a 

motion for reconsideration when a party raises a new issue. In fact, quoting 

Motschman v. Bridgepoint Mineral Acquisition Fund, LLC, 2011 ND 46, ¶ 10, 

795 N.W.2d 327, the district court noted: “The district court may decline to 

consider an issue or argument raised for the first time on a motion for 

reconsideration if it could have been raised in earlier proceedings.” See also

Steven Baicker–McKee, William M. Janssen, and John B. Corr, Federal Civil

Rules Handbook 1230 (2020) (“Courts properly decline to consider new 

arguments or new evidence on reconsideration where those arguments or 

evidence were available earlier.”). Thus, to the extent the court concluded 

Plaintiffs’ motion was frivolous because Plaintiffs raised issues previously 

considered by the court, the court misapplied the law. 
11

[¶32] The district court concluded Plaintiffs used their motion to reconsider “to 

relitigate the same issues,” that “Plaintiffs clearly used the same arguments 

in their Response to the Motion for Abatement and in their Motion to 

Reconsider.” However, the Plaintiffs’ motion was not simply a regurgitation of 

their brief opposing the motion to abate. The Plaintiffs addressed errors they 

claimed the district court made in granting Jacam’s motion to abate. They 

claimed the court erred in concluding there was an identity of parties and 

claims in this action and the action in Kansas. They also argued “even if there 

was identity of actions, . . . this Court was not required to abate this action and 

was instead required to weigh the equities when deciding whether abatement 

was appropriate.” Their arguments were not simply a repeat of the arguments 

made in their brief opposing the motion to abate. Plaintiffs were appropriately 

using a Rule 59(j) motion to draw the court’s attention to an error of law they 

claimed the court made in deciding the motion to abate. See Watford City 

Lodging LLC v. Miskin, 2019 ND 136, ¶ 8, 927 N.W.2d 860 (stating a motion 

under N.D.R.Civ.P.59(j) may be used to request the court correct errors of law).

We conclude the district court abused its discretion by concluding the motion 

for reconsideration was frivolous. We reverse the district court’s judgment 

awarding Jacam attorney’s fees.

V

[¶33] We have considered the parties’ remaining issues and arguments and 

conclude they are either unnecessary to our decision or without merit. We 

reverse the order granting Jacam’s motion for abatement and the judgment 

awarding attorney’s fees, and remand so the district court can determine 

whether the proceedings should be stayed under principles of comity.

[¶34] Jon J. Jensen, C.J.

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte

Douglas A. Bahr