N.D. Cent. Code § 32-03.2-11

Section 32-03.2-11 bars a complaint from seeking exemplary damages at commencement and requires a later amendment motion supported by sufficient evidence of oppression, fraud, or actual malice.

Ongstad Ex Rel. Ongstad Family Trust v. Piper Jaffray & Co. · filed 2006-01-04(1)

This practice is expressly prohibited under North Dakota law. See N.D. Cent.Code § 32-03.2-11(1) (Upon commencement of the action, the complaint may not seek exemplary damages.). The proper method for seeking an award punitive damages under North Dakota law is to file a motion to amend the complaint requesting such relief at a later date. The defendant is then given an opportunity to oppose the- request. After considering the evidence, if the Court finds “that there is sufficient evidence to support a finding by the trier of fact that a preponderance of evidence proves oppression, fraud, or actual malice, the court shall grant the moving party permission to amend the pleading to claim exemplary damages.” Id.

Subsection (1) permits exemplary damages for a noncontractual obligation only when clear and convincing evidence establishes oppression, fraud, or actual malice.

Doe v. Southwest Grain · filed 2004-02-18(1)

The statute authorizing exemplary damages is found at Section 32-03.2-11 of the North Dakota Century Code. Section 32-03.2-11 provides in part that [i]n any action ■ for the. breach of an obligation not arising from contract, when the defendant has been guilty by clear and convincing evidence of oppression, fraud, or actual malice, the court or jury, in addition to the actual damages, may give damages for the sake of example and by way of punishing the defendant. ... Even if .the Does were to prevail at trial on their claim of negligent misrepresentation or actual fraud as that term is defined under Section 9-03-08(2) of the North Dakota Century Code, the evidence is insufficient as a matter of law to support a claim for exemplary or punitive damages.

Section 32-03.2-11 authorizes exemplary damages on clear and convincing evidence of oppression, fraud, or actual malice; that standard differs from the one for awarding attorney fees for a harmful false publication.

Forster v. West Dakota Veterinary Clinic, Inc. · filed 2004-11-04

Under N.D.C.C. § 32-03.2-11, an award of exemplary damages is authorized “when the defendant has been guilty by clear and convincing evidence of oppression, fraud, or actual malice,” and the jury was so instructed. The state of mind required for the jury to find no abuse of the qualified privilege and no entitlement to exemplary damages differs from the state of mind required for the jury to award attorney fees.

Section 32-03.2-11(1) requires a party seeking exemplary damages to allege the basis after the original complaint and support it with an affidavit or deposition testimony.

A & R Fugleberg Farm, Inc. v. Triangle Ag, LLC · filed 2011-10-31(1)

Under N.D.C.C. § 32-03.2-11, a party cannot seek punitive damages in its original complaint. Rather, a party must subsequently allege the applicable basis for awarding the punitive damages and bring forward an affidavit or deposition testimony supporting its claim that these damages are allowable.

Section 32-03.2-11(1) permits a plaintiff to seek punitive damages when the plaintiff has a prima facie claim and sufficient evidence for a finding of oppression, fraud, or malice by a preponderance of the evidence.

Mosley v. Alpha Oil & Gas Services, Inc. · filed 2013-08-02(1)

In this case, the court has concluded that Mosley has made out a prima facie case for retaliatory discharge. Further, there is evidence sufficient to support a finding by a preponderance of the evidence of one or more of the elements of oppression, fraud, or malice required for an award of punitive damages under North Dakota law if the jury chooses to believe that evidence and not believe other evidence. This satisfies § 32-03.2-ll(l)’s requirements as previously applied by this court.

Section 32-03.2-11(1) requires oppression, fraud, or actual malice for exemplary damages, which are unavailable without a viable substantive claim.

Thimjon Farms Partnership v. First International Bank & Trust · filed 2013-09-06(1)

To obtain exemplary damages, a plaintiff must show the defendant guilty of “oppression, fraud, or actual malice.” N.D.C.C. § 32-03.2-11(1). Given the lack of viable substantive claims, the claim for exemplary damages is futile, and the district court was within its discretion to deny the motion to amend.

Section 32-03.2-11(1) bars a punitive damages request in an initial complaint and permits one by amendment only with leave of court and sufficient evidence of oppression, fraud, or actual malice.

Dopita v. SM Fencing & Energy Services · filed 2018-12-13(1)

North Dakota law prohibits a complaint from seeking punitive damages upon commencement of an action. See N.D.C.C. § 32-03.2-11. It further provides that a punitive damages claim may only be asserted upon leave of court to allow such an amendment, on a showing by plaintiff “that there is sufficient evidence to support a finding by the trier of fact that a preponderance of the evidence proves oppression, fraud, or actual malice.” N.D.C.C. § 32-03.2-11(1).

Section 32-03.2-11 requires a party seeking exemplary damages to move to amend the pleadings after filing suit; without that motion, exemplary damages are not before the court.

Kuntz v. Leiss · filed 2020-12-17

The record does not show Kuntz moved to amend the pleadings to claim exemplary damages as required by statute. Thus, exemplary damages were not properly before the district court, and we will not consider such damages on appeal.

Section 32-03.2-11 permits punitive damages when oppression, fraud, or malice is proved by clear and convincing evidence.

Habiger v. City of Fargo · filed 1995-01-23

“[W]hen the defendant has been guilty by clear and convincing evidence of oppression, fraud, or malice, actual or presumed, the court or jury, in addition to actual damages may give damages for the sake of example and by way of punishing the defendant.” ... Contrary to defendants’ argument, the court finds that there is evidence to support plaintiffs punitive damages claim. ... Since the officers’ conduct is in dispute, the court finds that rejecting plaintiffs request for punitive damages on summary judgment is improper.

Subsection (1) permits a plaintiff to amend a complaint to seek exemplary damages only when sufficient evidence could support a finding of oppression, fraud, or actual malice.

McHugh v. Jacobs · filed 2006-10-05(1)

Having thoroughly reviewed the evidence submitted by the parties, the Court finds that there is not sufficient evidence to support a finding by the trier of fact that a preponderance of the evidence establishes oppression, fraud, or actual malice so as to support an award of punitive or exemplary damages.

A plaintiff seeking exemplary damages must move to amend the complaint after filing suit, and the court must decide that motion.

Riverwood Commercial Park, L.L.C. v. Standard Oil Co. · filed 2007-03-05(1)

Because we are reversing the judgment dismissing River-wood’s complaint, we direct the district court on remand to consider and determine Riverwood’s motion to amend the complaint to seek exemplary damages.

Section 32-03.2-11(1) requires evidence of more than recklessness to amend a complaint to seek exemplary damages based on actual malice.

Zander v. Morsette · filed 2021-05-13(1)

The law requires a finding of more than reckless conduct; it requires sufficient evidence to support a finding that a preponderance of the evidence demonstrates conduct with a state of mind evincing an intent to harm or injure another person.

Section 32-03.2-11(1) generally does not allow exemplary damages for constructive fraud because it applies only to breaches of obligations not arising from contract.

McCormick v. Fredericks · filed 2020-07-22(1)

Normally, constructive fraud will not support a claim for exemplary damages. Under N.D.C.C. § 32-03.2-11(1), exemplary damages are available only “in an action for the breach of an obligation not arising from contract.”

Section 32-03.2-11(4) bars an award of exemplary damages when the claimant is not entitled to compensatory damages.

Northern Bottling Co., Inc. v. PepsiCo, Inc. · filed 2019-12-13(4)

Counts Six and Seven of Northern’s complaint seek, respectively, punitive damages and injunctive relief. Because PepsiCo is entitled to judgment as a matter of law on each of Northern’s substantive claims, Northern is not entitled to relief of any kind, including punitive damages or injunctive relief. See N.D. Cent. Code § 32-03.2-11(1) (providing that “when the defendant has been guilty by clear and convincing evidence of oppression, fraud, or actual malice, the court or jury, in addition to the actual damages, may give damages for the sake of example and by way of punishing the defendant”); N.D. Cent. Code § 32-03.2-11(4) (providing that “no award of exemplary damages may be made if the claimant is not entitled to compensatory damages”); Oglala Sioux Tribe v. C & W Enters., Inc., 542 F.3d 224, 229 (8th Cir. 2008) (“A permanent injunction requires the moving party to show actual success on the merits . . . .”).

The statute allows exemplary damages for oppression, fraud, or actual malice, but only as an adjunct to an underlying claim.

Kaiser v. Imperial Oil of North Dakota, Inc. · filed 2024-02-14(1)

Section 32-03.2-11(1) provides for exemplary damages when a “defendant has been guilty ... of oppression, fraud, or actual malice.” It does not create an independent cause of action; rather, it must accompany an underlying claim.

Section 32-03.2-11 requires clear and convincing evidence of oppression, fraud, or actual malice for exemplary damages; a finding that a party supplied misleading information does not suffice.

Ehrman v. Feist · filed 1997-09-10

NDCC 32-03.2-11 authorizes an award of exemplary damages “when the defendant has been guilty by clear and convincing evidence of oppression, fraud, or actual malice.” ... The trial court’s finding that “Freida had entered the original lease with misleading information” does not constitute “a specific finding of oppression, fraud, or malice.” We, therefore, conclude the award of attorney fees and costs cannot be sustained as an award of exemplary damages.

Section 32-03.2-11(4) does not allow exemplary damages when the claimant is not entitled to compensatory damages.

Rodenburg Law Firm v. Sira · filed 2019-07-30(4)

A claim for exemplary damages is derivative of another cause of action, is not an independent claim, and “no award of exemplary damages may be made if the claimant is not entitled to compensatory damages.” N.D.C.C. § 32-03.2-11(4). ... The dismissal of Rodenburg’s claims for abuse of process and malicious prosecution eliminated Rodenburg’s claim for exemplary damages.

The 1993 cap on exemplary damages does not apply to a cause of action that arose before the amendment took effect absent clear legislative intent to make it retroactive.

Ingalls v. Paul Revere Life Ins. Group · filed 1997-03-20(4)

The statute authorizing exemplary damages, NDCC 32-03.2-11(4), was amended in 1993 to limit them to “two times the amount of compensatory damages or two hundred fifty thousand dollars, whichever is greater.” ... Revere has not overcome the presumption against retroactivity here.

Section 32-03.2-11 applies only to claims accruing after July 8, 1987.

Puppe Ex Rel. Puppe v. A.C. & S., Inc. · filed 1990-03-28

N.D.C.C. § 32-03.2-11 became effective July 8, 1987 and applies only to claims accruing after that date. It is therefore inapplicable in this case.

Section 32-03.2-11(1) does not authorize punitive damages in an independent action in equity seeking relief from a divorce judgment for concealed marital property.

Walstad v. Walstad · filed 2012-10-01(1)

Catherine Walstad argues the district court abused its discretion in denying her motion to amend her complaint to assert a claim for punitive damages under N.D.C.C. § 32-03.2-11(1), which provides, “[i]n any action for the breach of an obligation not arising from contract, when the defendant has been guilty by clear and convincing evidence of oppression, fraud, or actual malice, the court or jury, in addition to the actual damages, may give damages for the sake of example and by way of punishing the defendant.” ... We have found no persuasive authority authorizing punitive damages in any of these types of proceedings to enjoin performance or otherwise grant relief from a blatantly unjust divorce judgment, and we conclude punitive damages are not authorized in such an action.