BY AND THROUGH LADUCER v. 10 (2026)

[¶1] L.G.L., R.A.L., P.A.L., and Melvin Laducer appeal from a judgment dismissing their negligence, wrongful-death, and professional-malpractice claims arising from the death of Luke Laducer. The district court dismissed the complaint under N.D.R.Civ.P. 12(b)(6), concluding that the claims were barred by res judicata and the two-year statute of limitations. We conclude that the prior federal litigation did not result in a decision on the merits of the state-law claims, so res judicata does not apply, and that the disability provisions of N.D.C.C. § 28-01-25 tolled the limitations period. We reverse.

I

[¶2] Luke Laducer died on December 18, 2020, while in custody at the Cass County Jail. According to the allegations and the materials in the record, Laducer called 911 in the early morning hours after attempting suicide by consuming alcohol. Fargo police officers took him to a hospital emergency room, where he was medically cleared, and then arrested him on an outstanding warrant and transported him to the jail. Jail staff checked on Laducer throughout the day. At approximately 5:15 p.m., a deputy found him unresponsive in his cell, and efforts to revive him were unsuccessful. He died of diffuse hemorrhagic gastritis and colitis.

[¶3] On December 2, 2022, Laducer's estate and surviving relatives filed a complaint in the United States District Court for the District of North Dakota. The plaintiffs included the estate, Laducer's adult daughter and mother, his father Melvin Laducer, and his three minor children, L.G.L., R.A.L., and P.A.L. The complaint pleaded four federal constitutional claims under 42 U.S.C. § 1983 and a single state-law claim, denominated Count 5 and titled “Negligence and Wrongful Death (Survival Actions—North Dakota State Law)—Against All Defendants—N.D.C.C. §§ 32-21-01 et seq.”

[¶4] The federal action produced two summary-judgment orders. Defendant Conrad Binsfeld, a nurse, moved for partial summary judgment on the state-law professional-negligence claim against him, asserting that the plaintiffs had not served the expert affidavit required by N.D.C.C. § 28-01-46. The federal court granted that motion in an order entered September 10, 2024, and directed: “Count 5 of the Laducer Estate's complaint is DISMISSED WITHOUT PREJUDICE.” The court explained that, although the motion sought summary judgment, North Dakota law requires dismissal without prejudice for noncompliance with section 28-01-46.

[¶5] The Cass County defendants moved for summary judgment on all remaining claims separately from Binsfeld's motion. In a second order, entered October 21, 2024, the federal court recited that its earlier order had granted the motion “to dismiss the state law claim without prejudice because the Estate did not comply with certain procedural rules,” and that, accordingly, “only the constitutional claims remain.” The order then analyzed the four federal constitutional claims and granted summary judgment, directing: “Defendants’ motion for summary judgment (Doc. 118) is GRANTED, and the Estate's motion for summary judgment (Doc. 129) is DENIED.” Neither order discussed the elements of negligence or wrongful death under North Dakota law. Judgment was entered, and the plaintiffs appealed to the Eighth Circuit, although they did not appeal the dismissal of Count 5.

[¶6] The plaintiffs then commenced this action in the district court, with the earliest service of process on December 12, 2024. The complaint retained the three minor children, by their guardian ad litem, and Melvin Laducer; it did not include the adult relatives who had been parties to the federal action. It pleaded two claims: professional malpractice against several defendants, and negligence and wrongful death against the remaining defendants. The plaintiffs also named several defendants who had not been parties to the federal action, including the City of Fargo and four correctional officers.

[¶7] The County and City defendants moved to dismiss under N.D.R.Civ.P. 12(b)(6), arguing the claims were barred by res judicata and the two-year statute of limitations. The district court agreed and dismissed the complaint with prejudice on alternative bases of res judicata and failure to meet the two-year statute of limitations. After initial proceedings in this Court to clarify the status of two defendants resulted in a remand, the district court entered an amended judgment of dismissal from which the plaintiffs now appeal.

II

[¶8] We review a district court's dismissal under N.D.R.Civ.P. 12(b)(6) de novo. Severance v. Howe, 2023 ND 197, ¶ 8, 997 N.W.2d 99. In reviewing a Rule 12(b)(6) dismissal, “we construe the complaint in the light most favorable to the plaintiff and accept as true the well-pleaded allegations in the complaint,” and we will affirm “if we cannot discern a potential for proof to support it.” Id. (quoting Puklich v. Puklich, 2022 ND 158, ¶ 7, 978 N.W.2d 668). A court may take judicial notice of materials embraced by the pleadings and matters of public record, including the record of a prior action, without converting the motion into one for summary judgment. Etemad v. State, 2023 ND 108, ¶ 5, 992 N.W.2d 1. The application of res judicata and the interpretation of a statute are questions of law, fully reviewable on appeal. Fredericks v. Vogel Law Firm, 2020 ND 171, ¶ 10, 946 N.W.2d 507; Severance, 2023 ND 197, ¶ 19, 997 N.W.2d 99.

III

[¶9] Res judicata “prevents relitigation of claims that were raised, or could have been raised, in prior actions between the same parties or their privies.” Hall v. Hall, 2020 ND 205, ¶ 17, 950 N.W.2d 168. Res judicata requires: (1) a final decision on the merits in the first action by a court of competent jurisdiction; (2) the same parties or their privies in both actions; (3) an issue actually litigated or that could have been litigated in the first action; and (4) an identity of the causes of action. Id.

[¶10] The first element controls this case. In deciding whether an order is final for res judicata purposes, we consider whether the prior proceedings were dismissed with or without prejudice. Interest of Buller, 2020 ND 270, ¶ 11, 952 N.W.2d 106 (quoting Hager v. City of Devils Lake, 2009 ND 180, ¶ 11, 773 N.W.2d 420). “Dismissal of a claim or action without prejudice has no res judicata effect because there has been no decision on the merits and no right or remedy of the parties is affected.” Id.

[¶11] The federal court did not decide the state-law claims on the merits. Its first summary-judgment order disposed of the state-law claim by dismissing it without prejudice: “Count 5 of the Laducer Estate's complaint is DISMISSED WITHOUT PREJUDICE.” Count 5 was the federal complaint's single state-law cause of action—“Negligence and Wrongful Death (Survival Actions—North Dakota State Law)—Against All Defendants.” The court dismissed the claim without prejudice because the plaintiffs had not served the expert affidavit required by N.D.C.C. § 28-01-46, a statute providing that a qualifying action “must be dismissed without prejudice” absent the affidavit. The federal court's second order confirmed the disposition of the first: it recited that the earlier order had granted the motion “to dismiss the state law claim without prejudice,” that “only the constitutional claims remain,” and it then resolved only the four constitutional claims. Neither order analyzed the elements of negligence or wrongful death under North Dakota law or applied those elements to any defendant's conduct.

[¶12] The district court nonetheless concluded that the second order's grant of the Cass County defendants’ motion for complete summary judgment silently adjudicated the state-law negligence and wrongful-death claims on the merits. That conclusion cannot be squared with the federal court's orders. The first order dismissed Count 5 without prejudice, and it did not limit the dismissal to a particular defendant or to the professional-negligence theory within Count 5. The second order stated that only the constitutional claims remained and decided only those claims. On a Rule 12(b)(6) record—where judicially noticed materials in the public record are considered and the pleadings are construed in the plaintiffs’ favor, Severance, 2023 ND 197, ¶ 8, 997 N.W.2d 99; Etemad, 2023 ND 108, ¶ 5, 992 N.W.2d 1—the absence of any merits analysis of the state-law claims other than the professional-negligence claim against Binsfeld, combined with the federal court's express statement that those claims were no longer before it, does not permit an inference that the court silently decided them on the merits.

[¶13] We need not reach the remaining elements. Res judicata does not bar this action because there was no final decision on the merits of the state-law claims.

IV

[¶14] The district court alternatively dismissed the claims as untimely under the two-year limitations period in N.D.C.C. § 28-01-18. The plaintiffs argue that the extender statute, N.D.C.C. § 28-01-25, excludes the period of a plaintiff's disability from the time limited for commencing an action and makes their claims timely. The defendants respond that the extender does not reach wrongful-death claims governed by section 28-01-18(4), and that, even if it does, the plaintiffs’ claims accrued and were discovered more than two years before this action was commenced. We address the reach of the extender, the accrual of the claims, and the defendants’ remaining arguments.

[¶15] Section 28-01-18 prescribes a two-year limitations period for several actions, including “[a]n action for the recovery of damages resulting from malpractice,” N.D.C.C. § 28-01-18(3), and “[a]n action for injuries done to the person of another, when death ensues from such injuries,” N.D.C.C. § 28-01-18(4). Subsection 3 closes with the sentence: “This limitation is subject to the provisions of section 28-01-25.” Subsection 4 contains no comparable cross-reference. From that difference, the defendants argue that the Legislature meant to withhold the section 28-01-25 extender from wrongful-death actions.

[¶16] The argument would engraft on N.D.C.C. § 28-01-25 a limitation the statute does not contain. This section applies, by its terms, to “an action other than for the recovery of real property, or for a penalty or forfeiture, or against a sheriff or other officer for an escape.” N.D.C.C. § 28-01-25. A wrongful-death action is not among these exceptions. When a person entitled to bring such an action is, at the time the claim accrues, “[u]nder the age of eighteen years,” “[i]nsane,” or “[i]mprisoned on a criminal charge or in execution under the sentence of a criminal court for a term less than for life,” then “the time of such disability is not a part of the time limited for the commencement of the action.” Id. We “interpret statutes to give meaning and effect to every word, phrase, and sentence, and do not adopt a construction which would render part of the statute mere surplusage.” Severance, 2023 ND 197, ¶ 19, 997 N.W.2d 99 (quoting State v. Gardner, 2023 ND 116, ¶ 7, 992 N.W.2d 535). The cross-reference in section 28-01-18(3) makes explicit what section 28-01-25 already provides; it does not, by negative implication, withdraw the other subsections of section 28-01-18 from the extender's reach. To treat subsection 3's cross-reference as the exclusive trigger for the extender would override the unambiguous terms by which section 28-01-25 defines its own scope. The disability provisions of section 28-01-25 apply to the plaintiffs’ claims.

[¶17] The defendants’ reliance on Olson v. Estate of Rustad, 2013 ND 83, 831 N.W.2d 369, is misplaced. Olson held that N.D.C.C. § 28-01-25 does not toll the nonclaim statute of the Uniform Probate Code, N.D.C.C. § 30.1-19-03, explaining that a nonclaim statute “imposes a condition precedent to the enforcement of a right of action, while statutes of limitation create defenses that must be pleaded and may be waived.” Olson, 2013 ND 83, ¶ 22, 831 N.W.2d 369 (quotation omitted); see id. at ¶ 24 (“This Court has not applied the disability tolling provisions of N.D.C.C. § 28-01-25 to a nonclaim statute.”). The limitations period here arises under section 28-01-18, a general statute of limitations, not under a probate nonclaim statute. Olson does not control.

[¶18] The accrual of the plaintiffs’ claims is fixed by statute. Section 28-01-18(4) provides that, for a wrongful-death action, “the claim for relief must be deemed to have accrued at the time of the death of the party injured,” except that “when death ensues as the result of malpractice, the claim for relief is deemed to have accrued at the time of the discovery of the malpractice.” The plaintiffs’ negligence and wrongful-death claims accrued on December 18, 2020, the date of Luke Laducer's death.

[¶19] The district court concluded that, even assuming N.D.C.C. § 28-01-25 applies, BASF Corp. v. Symington, 512 N.W.2d 692 (N.D. 1994), extinguished the extender once the plaintiffs objectively discovered their claims—no later than December 2, 2022, when they filed the federal complaint. BASF does not support that conclusion. Answering certified questions about a claimant who was both a minor and mentally incompetent, the Court in BASF adopted an objective standard for determining when a disabled claimant's cause of action accrues: the claim accrues when “a reasonable person, not suffering from disabilities, would have been cognizant of facts placing a reasonable person on notice that a potential claim exists.” Id. at 696. That standard fixes the accrual date. The Court then explained that the disability extension is measured from that date: “From that date, the statutory extension of the time for filing her claim is determined in accord with the interpretation of Sections 28-01-25, N.D.C.C., and 28-01-31, N.D.C.C., explained herein.” Id. at 697. BASF used objective discovery to identify when the limitations period begins; it did not hold that discovery cuts off the extension that section 28-01-25 affords during an ongoing disability.

[¶20] The text confirms the distinction. Section 28-01-25, N.D.C.C., excludes “the time of such disability” from “the time limited for the commencement of the action,” and it caps that exclusion in temporal terms: the period “cannot be extended more than five years by any such disability except infancy, nor can it be extended in any case longer than one year after the disability ceases,” and, “[i]n cases alleging professional malpractice, the extension of the limitation due to infancy is limited to twelve years.” N.D.C.C. § 28-01-25. The Legislature limited the disability extension by time, not by knowledge. Reading a discovery-based cutoff into section 28-01-25 would displace that temporal scheme and render the statute's express caps surplusage, contrary to our rules of construction. Severance, 2023 ND 197, ¶ 19, 997 N.W.2d 99.

[¶21] Applying the statute, the plaintiffs’ claims were timely. Each of the three children was under the age of eighteen when the claims accrued and remained a minor when this action was commenced, and Melvin Laducer was imprisoned under a criminal sentence at accrual and remained imprisoned. Under N.D.C.C. § 28-01-25, the time of those disabilities is not part of the time limited for commencing the action. Because the claims accrued on December 18, 2020, and the action was commenced less than four years later, on December 12, 2024, while every disability still persisted, the statutory caps were not exceeded. The extension stayed within the five-year cap on Melvin Laducer's imprisonment and the twelve-year cap on the children's infancy, and the limit on extending the period beyond one year after a disability ceases had no application because no disability had ceased.

[¶22] The defendants’ remaining arguments do not alter the analysis. They contend that the plaintiffs should be equitably estopped from invoking N.D.C.C. § 28-01-25 because they omitted the adult relatives from the caption after the federal litigation. Equitable estoppel requires conduct by the party to be estopped that amounts to a false representation or concealment of material facts, and reliance by the party asserting estoppel that is reasonable; “there must be some form of affirmative deception.” Dalan v. Paracelsus Healthcare Corp., 2002 ND 46, ¶ 19, 640 N.W.2d 726 (cleaned up). The defendants identify no representation on which they relied, and the district court did not rest its decision on estoppel. The doctrine does not apply.

[¶23] The defendants also argue that, under N.D.C.C. § 32-21-03, Luke Laducer's surviving children have priority over his surviving father to bring a wrongful-death claim, raising a question about Melvin Laducer's authority to sue. Section 32-21-03 governs who may bring a wrongful-death action; it does not address when the limitations period runs. Whether Melvin Laducer may maintain a wrongful-death claim in light of the statutory order of priority is distinct from the timeliness question presented in this appeal, does not affect the children's claims, and is not a basis for the dismissal.

V

[¶24] The federal court did not decide the state-law claims on the merits, and the limitations period was tolled by the plaintiffs’ disabilities under N.D.C.C. § 28-01-25. The district court erred in dismissing the complaint on res judicata and statute-of-limitations grounds. We reverse the judgment of dismissal and remand for further proceedings.

Tufte, Justice.

[¶25] Lisa Fair McEvers, C.J. Jerod E. Tufte Jon J. Jensen Douglas A. Bahr Mark A. Friese