Kainz, et al. v. Jacam Chemical Co. 2013
- William Kainz and GeoChemicals, LLC, Plaintiffs and Appellants
Jacam Chemical Company 2013, LLC, Defendant and Appellee
- Case Type
- CIVIL APPEAL : EMPLOYER/EMPLOYEE DISPUTE
- Appeal From
Case No. 2019-CV-00703
Southwest Judicial District, Stark County
William A. Herauf
Parties' Statement of Issues
1. Whether the district court erred by abating this action involving claims related to the enforceability of non-compete and non-solicitation of customers agreements against a North Dakotan working in North Dakota in favor of a Kansas action seeking to enforce those agreements under Kansas law.
a. Whether the district court is required to decide the merits of the claims in this action under this Court’s decision in Osborne v. Brown & Saenger, Inc., 2017 ND 288, 904 N.W.2d 34.
b. Whether the district court erred by abating this action under this Court’s decision in Lucas v. Porter, 2008 ND 160, 755 N.W.2d 88.
c. Whether the district court erred by concluding that Jacam 2013 did not waive its abatement argument by failing to plead abatement as an affirmative defense.
2. Whether the district court erred in denying the motion for reconsideration of its order abating this action and by concluding the reconsideration motion was frivolous in awarding attorney’s fees under N.D.C.C. § 28-26-01.
 Whether the Court must dismiss Mr. Kainz’s/GEO’s appeal as to the Stay Order because it is not an appealable order.
 Whether the district court erred in concluding that there exists no exception to North Dakota’s claim splitting doctrine when the law of the foreign jurisdiction contravenes North Dakota public policy.
 Whether the district court properly stayed the case when the record shows that Mr. Kainz’s/GEO’s North Dakota claims arise from the same transaction, or series of connected transactions and implicate a common nucleus of operative facts as Jacam 2013’s claims in Kansas, and Mr. Kainz/GEO have brought the exact same claims in Kansas.
 Whether the district court abused its discretion in determining that Mr. Kainz’s/GEO’s Joint Motion for Reconsideration of Order Granting Motion to Abate (R. 260) was frivolous warranting an award of attorney fees to Jacam 2013.
William Kainz and GeoChemicals, LLC, appeal from an order granting a motion to abate, an order denying a motion for reconsideration, and an order and judgment awarding attorney’s fees.
Kainz and GeoChemicals sued Jacam Chemical Company 2013, LLC. Jacam moved to abate the action. The district court granted Jacam’s motion. Kainz and GeoChemicals moved for reconsideration, and the court denied their motion. Jacam moved for attorney’s fees. The court granted Jacam’s motion and entered an order and judgment awarding attorney’s fees.
On appeal, Kainz and GeoChemicals argue the district court erred by abating the action and by awarding attorney’s fees.
|APPELLANT||PRIVATE PRACTICE||Kirsten Tuntland - 07214|
|APPELLANT||PRIVATE PRACTICE||Zachary Evan Pelham - 05904|
|APPELLEE||PRIVATE PRACTICE||Not Licensed in ND - 00002|
|APPELLEE||PRIVATE PRACTICE||Shea Ashley Miller - 08498|
|APPELLANT||PRIVATE PRACTICE||Not Licensed in ND - 00002|
|APPELLANT||PRIVATE PRACTICE||Jordan Lee Selinger - 08454|
|APPELLEE||PRIVATE PRACTICE||Nicholas C. Grant - 07102|
(Note: Attachments may not be available for recently filed cases and/or confidential documents.)
|Seq. #||Filing Date||Description||Attachment|
|1||05/10/2022||NOTICE OF APPEAL : 05/10/2022|
|2||05/10/2022||ORDER FOR TRANSCRIPT : 05/13/2022|
|3||05/10/2022||MOTION FOR CONSIDERATION OF ALTERNATIVE REQUEST FOR A WRIT BY APPELLANTS|
|4||05/13/2022||Received $125 filing fee|
|5||05/13/2022||Affidavit of Sean D. Walsh in support of Admission to Practice Pro Hac Vice|
|6||05/13/2022||NOT. OF FILING NOT. OF APPEAL AND PROOF OF SERV.|
|7||05/13/2022||Notice served on Zachary E. Pelham, Kirsten Tuntland, Sean D. Walsh, Michael J. Geiermann,|
|8||05/13/2022||Nicholas C. Grant, Shea A. Miller, Janet A. Hendrick, & Angela M. Buchanan|
|9||05/16/2022||ACTION BY CHIEF JUSTICE - Granted|
|10||05/25/2022||Affidavit of Angela M. Buchanan in support of Admission to Practice Pro Hac Vice|
|11||05/25/2022||Affidavit of Janet A. Hendrick in support of Admission to Practice Pro Hac Vice|
|12||05/25/2022||Affidavit of Michele C. Spillman in support of Admission to Practice Pro Hac Vice|
|13||06/08/2022||ELEC. RECORD ON APPEAL DATED JUNE 7, 2022(ENTRY NOS. 1-311)|
|14||07/05/2022||All Transcripts Filed in Record|
|15||07/06/2022||1ST ELEC. SUPP. RECORD ON APPEAL DATED JULY 5, 2022 (ENTRY NOS. 312-316)|
|17||08/12/2022||Oral Argument Request by Appellants|
|18||08/15/2022||Rec'd corrections to ATB (inappropriate addendum)|
|19||08/17/2022||Rec'd corrections to ATB (addendum removed)|
|20||08/17/2022||MOTION TO TAKE JUDICIAL NOTICE||View|
|21||08/19/2022||Motion to take Judicial Notice to be Considered With the Merits|
|22||08/19/2022||Rec'd 3 copies of ATB from CSD|
|23||09/06/2022||MOT. EXT/TIME APPELLEE BRIEF||View|
|24||09/08/2022||ACTION BY CLERK - Granted : 09/26/2022|
|25||09/26/2022||MOTION TO TAKE JUDICIAL NOTICE (BY APPELLEE)||View|
|27||09/26/2022||Oral Argument Request by Appellee|
|28||09/27/2022||Notice of Substitution of Counsel by Jordan L. Selinger for William Kainz, Appellant||View|
|29||09/29/2022||Motion to take Judicial Notice to be Considered With the Merits|
|30||09/29/2022||MOT. EXT/TIME REPLY BRIEF||View|
|31||09/30/2022||ACTION BY CLERK - Granted : 10/20/2022|
|32||09/30/2022||Rec'd 3 copies of AEB from CSD|
|33||10/19/2022||NOTICE OF ORAL ARGUMENT SENT|
|34||10/20/2022||MOTION TO TAKE JUDICIAL NOTICE (BY APPELLANT)||View|
|36||10/21/2022||Rec'd 3 copies of RYB from CSD|
|37||10/24/2022||Motion to take Judicial Notice To Be Considered With the Merits|
|38||11/17/2022||APPEARANCES: Zachary E. Pelham, Jordan L. Selinger and Nicholas C. Grant|
|39||11/17/2022||ARGUED: Zachary E. Pelham and Nicholas C. Grant|
|40||11/17/2022||ORAL ARGUMENT WEBCAST|