This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







Leonard J. Richards,


Alango Cemetery Association, et al.,


Filed October 18, 2005


Wright, Judge


St. Louis County District Court

File No. C7-04-102207



Leonard Richards, 1101 Linden Lane, Faribault, MN  55021 (pro se appellant)


Peter B. Tiede, Kelly S. Hadac, Murnane, Conlin, White & Brandt, 444 Cedar Street, Suite 1800, St. Paul, MN  55101 (for respondent Alango Cemetery Association)



            Considered and decided by Wright, Presiding Judge; Toussaint, Chief Judge; and Hudson, Judge.


U N P U B L I S H E D  O P I N I O N




In this dispute over the rights to a family cemetery plot, appellant argues that the district court abused its discretion by dismissing his case with prejudice.  We affirm.



In 1906, Gust R. Laine and his wife Aleksandra Laine purchased a six-lot cemetery plot, officially known as Lot 22 of Alango Cemetery.  To date, five family members have been buried in the Laine family plot. 

In 2000, appellant Leonard Richards began mailing letters to respondent Alango Cemetery Association (Alango), seeking information about who had used or attempted to use the remaining lot.  Alango answered several of Richards’s inquiries but explained to Richards that the Town of Alango could not provide Richards with all of the requested information unless he demonstrated that he held title to the cemetery plot in question. 

Following prolonged correspondence between Richards and Alango, and without ever determining title to the cemetery plot, Richards initiated an action against Alango, alleging fraud, deceit, unfair practices under the Minnesota Human Rights Act, and equal-protection violations under the Minnesota and United States constitutions.  Control over the use of the remaining cemetery lot is the central issue underlying the lawsuit. 

            Alango answered the complaint and moved to remove the action to federal district court.  Alango’s motion was granted.  But after ascertaining that Richards’s claims primarily involved state probate questions as to the rightful owner of the cemetery plot, the federal district court dismissed the action for lack of subject-matter jurisdiction and remanded the matter to Ramsey County District Court. 

Alango then moved for a change of venue to St. Louis County, where the cemetery plot is located.  This motion was granted.  The district court held a scheduling conference on December 28, 2004.  Immediately following the conference, Richards submitted a notice of dismissal to the district court, agreeing to dismiss the case.  But he did not expressly indicate that he intended to dismiss the claims “with prejudice.”  Alango submitted a letter dated January 5, 2005, stating that it agreed to dismiss the action with prejudice.  Without holding a hearing, the district court dismissed the matter with prejudice by order dated January 10, 2005.  Richards sent several letters to the district court seeking amendment of the order to dismiss the matter without prejudice.  The district court declined to amend the order.  This appeal followed.



Alango argues that, because Richards has failed to demonstrate any legal interest in the cemetery plot, he lacks standing and fails to establish a justiciable controversy.  We review questions of standing de novo.  In re Petition for Improvement of County Ditch No. 86, 625 N.W.2d 813, 817 (Minn. 2001); Edina Cmty. Lutheran Church v. State, 673 N.W.2d 517, 521 (Minn. App. 2004).  Because “[t]he existence of a justiciable controversy is [a] prerequisite to adjudication,” we may consider the issue although it was not raised or argued before the district court.[1]  Izaak Walton League of Am. Endowment, Inc. v. State, Dep’t of Natural Res., 312 Minn. 587, 589, 252 N.W.2d 852, 854 (1977). 

            Distinct from the requirement of a justiciable controversy, standing is the requirement that a litigant have a sufficient stake in the controversy to seek relief from the court.  State by Humphrey v. Philip Morris Inc., 551 N.W.2d 490, 493 (Minn. 1996).  A plaintiff’s lack of standing precludes the prosecution of a lawsuit.  Id.  Standing “focuses on the party seeking to get his complaint before a . . . court and not on the issues he wishes to have adjudicated.”  Sundberg v. Abbott, 423 N.W.2d 686, 688 (Minn. App. 1988) (quoting Flast v. Cohen, 392 U.S. 83, 99, 88 S. Ct. 1942, 1952 (1968)) (emphasis omitted), review denied (Minn. June 29, 1988).  The underlying purpose of the standing requirement is to ensure that a sufficient controversy exists between the parties so that the issue is adequately presented to the court.  Twin Ports Convalescent, Inc. v. Minn. State Bd. of Health, 257 N.W.2d 343, 346 (Minn. 1977).

Minnesota has adopted an “injury in fact” test for standing.  Snyder’s Drug Stores, Inc. v. Minn. State Bd. of Pharmacy, 301 Minn. 28, 32, 221 N.W.2d 162, 165 (1974).  Under this test, a litigant has standing when he or she has suffered an actual injury or otherwise has a cognizable stake in a justiciable controversy.  Leffler v. Leffler, 602 N.W.2d 420, 422 (Minn. App. 1999).  The litigant must have a direct interest in the litigation and articulate more than an abstract concern.  Philip Morris Inc., 551 N.W.2d at 495; Byrd v. Indep. Sch. Dist. No. 194, 495 N.W.2d 226, 231 (Minn. App. 1993), review denied (Minn. Apr. 20, 1993). The litigant also must demonstrate an injury or imminent threat of injury to a legally recognized interest.  Envall v. Indep. Sch. Dist. No. 704, 399 N.W.2d 593, 596 (Minn. App. 1987), review denied (Minn. Mar. 25, 1987).  If, for example, a litigant has no legal interest in a piece of property central to the litigation, the litigant lacks a sufficient stake in the controversy to invoke the court’s jurisdiction.  Leffler, 602 N.W.2d at 422; see also State ex. rel Sammons v. Nelson, 136 Minn. 272, 274, 159 N.W. 758, 759 (1916) (holding that litigant lacked standing to challenge ditch project that did not directly affect his land).  A party cannot gain standing by asserting the claim of a friend or family member.  Wurm v. John Deere Leasing Co., 405 N.W.2d 484, 486 (Minn. App. 1987).

Here, the purpose of Richards’s lawsuit is to compel Alango to release information to Richards regarding who intends to be buried in the sixth cemetery lot, purchased by Richards’s grandfather almost a century ago.  Richards admits, however, that he is not entitled to be buried in this cemetery lot.  In fact, despite repeated requests to do so, Richards has not demonstrated that he has any ownership interest or other legal interest in the cemetery plot.  Without any evidence that Richards has suffered a threat of injury to a legally recognized interest, Richards lacks standing to invoke this court’s jurisdiction.

Moreover, inherent in the requirement of a justiciable controversy is that an issue must be ripe for review.  Issues that have no existence other than in the realm of the future “are ‘purely hypothetical and are not justiciable [because n]either the ripe nor the ripening seeds of controversy are present.’”  State v. Murphy, 545 N.W.2d 909, 917 (Minn. 1996) (quoting Lee v. Delmont, 228 Minn. 101, 110, 36 N.W.2d 530, 537 (1949)).  There must be a “direct and imminent injury,” rather than a “merely possible or hypothetical injury.”  Kennedy v. Carlson, 544 N.W.2d 1, 6 (Minn. 1996) (quotation omitted).

Even if Richards could establish a legal interest in the cemetery plot, he has not suffered an injury or demonstrated a threat of imminent injury because no one has been buried in the sixth cemetery lot and no plans have been made for a burial.  Any injury to his legal interest, were it established, would merely be hypothetical at this time.  Accordingly, we affirm the district court’s dismissal because Richards lacks standing and because his claims are not ripe.

Were we to reach the merits of Richards’s appeal, the record establishes that the district court did not abuse its discretion by dismissing Richards’s claims with prejudice.  A district court’s decision to dismiss a claim with prejudice under the voluntary-dismissal provisions in the Minnesota Rules of Civil Procedure is reviewed for an abuse of discretion.  N. States Power Co. v. City of Sunfish Lake, 659 N.W.2d 271, 275 (Minn. App. 2003).

Once an answer has been filed, a plaintiff no longer has a right to dismiss, and, unless all parties stipulate to dismissal, a plaintiff who wishes to dismiss an action must do so by order of the district court.  Minn. R. Civ. P. 41.01; Altimus v. Hyundai Motor Co., 578 N.W.2d 409, 410 (Minn. App. 1998).  As a general matter, the district court has broad discretion in determining whether dismissals shall be with or without prejudice.  Falkenstein v. Braufman, 251 Minn. 444, 452, 88 N.W.2d 884, 889 (1958); see also 9 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2367 (2d ed. 1995) (“[I]f the plaintiff either moves for dismissal without prejudice or fails to specify whether the request is for dismissal with or without prejudice, the matter is left to the discretion of the court.  The court may . . . require that the dismissal be with prejudice.”).  When the plaintiff’s motion to dismiss fails to speak to the issue of prejudice, the district court is not required to dismiss without prejudice, but it may exercise its discretion to do so.  United States ex rel Stone v. Rockwell Int’l Corp., 282 F.3d 787, 810 (10th Cir. 2002).

Here, Richards filed a “notice of dismissal” following the settlement conference on December 28, 2004, long after Alango filed its answer.  In this notice, Richards agreed to dismiss the case without specifying whether the dismissal was with or without prejudice.  The district court interpreted Richards’s notice of dismissal as a motion to dismiss with prejudice and dismissed the case based on the agreement of the parties.  This is not an abuse of discretion.  The language of Richards’s notice makes evident that he intended “to dead-file the matter.”  Richards only reserved the right to sue should he “find that any burial or memorialization use of the Laine Family Plot . . . of Alango Cemetery has taken place without a court order first obtained with due notice . . . .”  It is clear from the language of Richards’s notice of dismissal, when read in context with the claims alleged in the complaint, that Richards intended to abandon those claims giving rise to the instant lawsuit and initiate another action only if new facts and circumstances presenting an actual controversy arise.


[1] We observe that, although the issue of standing was not litigated in the state district courts, the federal district court noted Richards’s lack of standing in its order remanding the case to state court.