148 F.3d 988 (8th Cir. 1998), 97-3057, Witzman v. Gross

Docket Nº:97-3057.
Citation:148 F.3d 988
Party Name:Joyce WITZMAN, Appellant, v. Bert M. GROSS; Phillips & Gross, P.A., formerly known as Phillips, Gross & Aaron, P.A., Appellees.
Case Date:July 07, 1998
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 988

148 F.3d 988 (8th Cir. 1998)

Joyce WITZMAN, Appellant,


Bert M. GROSS; Phillips & Gross, P.A., formerly known as

Phillips, Gross & Aaron, P.A., Appellees.

No. 97-3057.

United States Court of Appeals, Eighth Circuit

July 7, 1998

Submitted March 13, 1998.

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John F. Bonner, III, Minneapolis, MN, argued (Leonna E. Lewis, appeared on the brief), for appellant.

John Michael Baker, Minneapolis, MN, argued (Andrew M. Luger, appeared on the brief), for appellee.

Before WOLLMAN and HANSEN, Circuit Judges, and GOLDBERG, 1 Judge.

WOLLMAN, Circuit Judge.

Joyce Witzman appeals from the district court's 2 grant of summary judgment in favor of Bert Gross, and Phillips & Gross, P.A. (appellees) and the dismissal of her claims with prejudice. Witzman also appeals from the district court's denial of her motion to voluntarily dismiss without prejudice. We affirm.


Witzman and Blair Wolfson, her brother, are beneficiaries of several trusts established by their parents. Wolfson also served as trustee of the various trusts and has administered them throughout their existence. During most of that time period, the appellees served as Wolfson's counsel in his capacity as trustee.

In 1993, Witzman filed three separate petitions in Minnesota state court, which alleged that Wolfson had breached his fiduciary duty as trustee. She specifically alleged that Wolfson had failed to prepare and file annual accounts of the trusts as required by Minnesota law, took excessive fees, engaged in self-dealing, and made imprudent investments with trust assets. In late 1994, Witzman and Wolfson reached a settlement. The agreement provided, among other things, that: (1) Witzman would receive a substantial amount of property; (2) Witzman's claims against the appellees were expressly preserved; and (3) Wolfson was obligated to cooperate with Witzman in any action against the appellees. As part of the settlement agreement, Witzman provided Wolfson with a comprehensive release from any claims arising out of the trust litigation.

Witzman and Wolfson's cooperative relationship eventually deteriorated. After Witzman unsuccessfully challenged portions of the settlement agreement and Wolfson's performance under those provisions, she commenced this action against the appellees in Minnesota state court. Her complaint included allegations of breach of trust, aiding and abetting a breach of trust, negligent misrepresentation, and violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-1968.

In January of 1997, after removing the action, the appellees filed a motion for summary judgment. Witzman then filed a motion to amend her complaint, which the magistrate judge denied after finding that the complaint failed to comply with the brevity and specificity requirements of Rules 8 and 9(b) of the Federal Rules of Civil Procedure. A second attempt by Witzman to amend her complaint was denied, her counsel was sanctioned, and she was granted leave to submit a new motion to amend, subject to the court's

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consideration of the pending motion for summary judgment. 3 Witzman subsequently moved the court to dismiss her case without prejudice pursuant to Fed.R.Civ.P. 41(a)(2). After a hearing, the district court issued an order granting the appellees's motion for summary judgment, dismissed the action with prejudice and, in effect, denied Witzman's motion to dismiss without prejudice.


We first consider Witzman's argument that the district court erroneously applied Minnesota law when it granted the appellees summary judgment...

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