concurring in part and dissenting in part.
[¶ 32] I concur in the result reached by the majority in reversing dismissal of Zink’s complaint and reversing the award of attorney’s fees. I respectfully dissent from that portion of the decision not unconditionally reversing dismissal of Keller’s complaint.
[¶ 33] District courts are able to sua sponte dismiss actions under N.D.R.Civ.P. 12(b) for failure to state a claim for relief. Berlin v. State, 2005 ND 110, ¶ 7, 698 N.W.2d 266. “The power of the court to dismiss a claim on its own motion under Rule 12(b) derives from the court’s inherent authority to dismiss a meritless claim.” Berlin, at ¶ 7. We have never held that inherent authority extends to Rule 56, N.D.R.Civ.P., or that district courts can sua sponte put litigants to their substantive proof. I do not believe that extension should be created by implication in an otherwise routine decision of this Court.
[¶ 34] Sua sponte dismissals under Rule 12(b), N.D.R.Civ.P., have been countenanced based on the court’s inherent authority and on the court’s ability to determine whether, based on the face of the complaint, a plaintiff asserts a viable claim for relief. See Berlin, 2005 ND 110, ¶ 7, 698 N.W.2d 266; Isaac v. State Farm Mut. Auto. Ins. Co., 547 N.W.2d 548, 550 (N.D.1996); Ennis v. Dasovick, 506 N.W.2d 386, 389 (N.D.1993); Albrecht v. First Fed. Savings and Loan Ass’n of Grand Forks and Minot, 372 N.W.2d 893, 894 (N.D.1985). By contrast, a sua sponte summary *872judgment necessarily requires that the district court weigh merits of the lawsuit by considering whether the evidence — rather than just the complaint — warrants a conclusion there are or are not genuine issues of material facts.
[¶ 35] Our case law generally recognizes the district court’s inherent authority to control its docket. See Gullickson v. Kline, 2004 ND 76, ¶ 15, 678 N.W.2d 138 (“We are mindful of the necessity of the trial court having complete control over the proceedings before it.”) (quoting Ward v. Shipp, 340 N.W.2d 14, 18 (N.D.1983)). At the same time, lawyers should be able to manage the development and presentation of their lawsuits within bounds established by the North Dakota Rules of Civil Procedure and by the judge’s exercise of discretion in controlling the courtroom. See, e.g., State v. Vivone, 63 S.W.3d 654, 665 (Mo.Ct.App.1999) (“[T]rial judges should act sua sponte only in exceptional circumstances. Without objection or other request for relief, a trial judge’s options are narrowed to uninvited interference in the law suit, thus subjecting the trial court to the accusation of ‘trying my lawsuit.’ ”) (quotation and citation omitted). I would not extend the district court’s authority to determine for counsel whether, when and what summary judgment issues should be raised.
[¶ 36] Taking this position, I am mindful the weight of authority holds otherwise. See 73 Am.Jur.2d Summary Judgment § 40 (2011) (stating a federal court can enter summary judgment in favor of a party even if no motion is before the court). I am also aware Rule 56(f), Fed. R.Civ.P., was modified in 2010 to provide, “After giving notice and a reasonable time to respond, the court may: ... consider summary judgment on its own after identifying for the parties material facts that may not be genuinely in dispute.” But instead of using this case to permit sua sponte summary judgment proceedings, I favor determining the appropriateness of such authority under this Court’s rule making power where a broad range of input can be gathered and weighed.
[¶ 37] Daniel J. Crothers