Joyce Witzman v. Bert M. Gross Phillips & Gross, P.A., Formerly Known as Phillips, Gross & Aaron, P.A., 148 F.3d 988 (8th Cir. 1998). · Go Syfert
Joyce Witzman v. Bert M. Gross Phillips & Gross, P.A., Formerly Known as Phillips, Gross & Aaron, P.A., 148 F.3d 988 (8th Cir. 1998). Cases Citing This Book View Copy Cite
“the erie principles apply equally to pendent jurisdiction.”
51 citation events (46 in the last 25 years) across 21 distinct courts.
Strongest positive: Iota Phi Lambda Sorority, Inc. v. Contenta Global Capital Group, LLC (mnd, 2019-09-26)
Treatment trajectory · 1998 → 2026 · click a year to view as-of
1998 2012 2026
Top citers, strongest first. 42 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Iota Phi Lambda Sorority, Inc. v. Contenta Global Capital Group, LLC
D. Minnesota · 2019 · signal: see · quote attribution · 1 verbatim quote · confidence high
the erie principles apply equally to pendent jurisdiction.
cited Cited as authority (rule) Jeremiah Johns v. Donovan Francis, Tony Hernandez, and The Johns Law Firm, LLC
E.D. La. · 2026 · confidence medium
Co. v. Costa Lines Cargo Servs., Inc., 903 F.2d 352, 360 (5th Cir. 1990). 13 Elbaor, 279 F.3d at 317 n.3 (quoting Witzman v. Gross, 148 F.3d 988, 992 (8th Cir. 1998)). 14 Rec.
cited Cited as authority (rule) SAR AH M ARTIN, et al. v. BRIAN BINGAMAN, et al.
E.D. Mo. · 2025 · confidence medium
Mo. 2004) (citing Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78 (1938); Witzman v. Gross, 148 F.3d 988, 990 (8th Cir. 1998)).
cited Cited as authority (rule) Sorenson v. State of Minnesota
D. Minnesota · 2024 · confidence medium
Id.; Donner v. Alcoa, Inc., 709 F.3d 694, 697 (8th Cir. 2013); Witzman v. Gross, 148 F.3d 988, 992 (8th Cir. 1998); Kern v. TXO Prod.
cited Cited as authority (rule) Martinez v. Phillips
N.D. Tex. · 2024 · confidence medium
Id. at 318 n.3 (citing Witzman v. Gross, 148 F.3d 988, 992 (8th Cir. 1998)).
cited Cited as authority (rule) Davis v. Pioneer Natural Resources Co
N.D. Tex. · 2023 · confidence medium
Elbaor, 279 F.3d at 318 n.3 (citing Witzman v. Gross, 148 F.3d 988, 992 (8th Cir. 1998)).
cited Cited as authority (rule) Chandler v. Indemnity Insurance Company of North America
E.D. Tex. · 2023 · confidence medium
Elbaor, 279 F.3d at 317 & n.3 (quoting Witzman v. Gross, 148 F.3d 988, 992 (8th Cir. 1998)).
discussed Cited as authority (rule) Velez v. AutoZoners, LLC
D.S.D. · 2023 · confidence medium
Greetings Corp., 754 F.3d 632, 635 (8th Cir. 2014); Witzman v. Gross, 148 F.3d 988, 990 (8th Cir. 1998) (holding that federal courts apply state substantive law when courts exercise supplemental jurisdiction over state law claims).
cited Cited as authority (rule) Goins v. Rechcigl
E.D. Ark. · 2023 · confidence medium
No. 38, at 3) (citing Witzman v. Gross, 148 F.3d 988, 992 (8th Cir. 1995)).
cited Cited as authority (rule) Strategic Energy Concepts, LLC v. Otoka Energy, LLC
D. Minnesota · 2023 · confidence medium
Wagstaff & Cartmell, LLP v. Lewis, 40 F.4th 830, 840-41 (8th Cir. 2022) (brackets in original) (quoting Witzman v. Gross, 148 F.3d 988, 992 (8th Cir. 1998) (quoting Paulucci, 826 F.2d at 783 )).
cited Cited as authority (rule) Burdunice v. State of Minnesota
D. Minnesota · 2022 · confidence medium
Witzman v. Gross, 148 F.3d 988, 992 (8th Cir. 1998) (citing Paulucci v. City of Duluth, 826 F.2d 780, 783 (8th Cir.1987)).
discussed Cited as authority (rule) Lucero v. General Motors LLC
S.D. Tex. · 2022 · confidence medium
In addition to the guidelines outlined above, some district and circuit courts consider four factors when determining whether the court should deny a Rule 41(a)(2) motion for voluntarily dismissal: (1) the defendant's effort and the expense involved in preparing for trial, (2) excessive delay and lack of diligence on the part of the plaintiff in prosecuting the action, (3) insufficient explanation of the need to take a dismissal, and (4) the fact that a motion for summary judgment has been filed by the defendant.” Witzman v. Gross, 148 F.3d 988, 992 (8th Cir.1998); Espinoza v. Nacher Corp., …
discussed Cited as authority (rule) Wagstaff & Cartmell, LLP v. Neal Lewis (2×) also: Cited "see"
8th Cir. · 2022 · confidence medium
But the district court made these statements as part of its factual findings; they were not part of the court’s analysis of Lewis’s motion for leave to dismiss his counterclaims. -13- Witzman v. Gross, 148 F.3d 988, 992 (8th Cir. 1998) (quoting Paulucci v. City of Duluth, 826 F.2d 780, 783 (8th Cir. 1987)).
cited Cited as authority (rule) Thomas v. Payne
E.D. Ark. · 2021 · confidence medium
Witzman v. Gross, 148 F.3d 988, 992 (8th Cir.1998) (citing Paulucci, 826 F.2d at 783 ).
cited Cited as authority (rule) Paisley Park Enterprises, Inc. v. Boxill
D. Minnesota · 2021 · confidence medium
Witzman v. Gross, 148 F.3d 988, 992 (8th Cir. 1998).
cited Cited as authority (rule) Peals v. Quicktrip Corporation
E.D. Tex. · 2021 · confidence medium
Elbaor, 279 F.3d at 317 n.3 (quoting Witzman v. Gross, 148 F.3d 988, 992 (8th Cir. 1998)).
cited Cited as authority (rule) Roor International BV v. Stinky's Smoke Shop, LLC
E.D. Tex. · 2020 · confidence medium
Elbaor, 279 F.3d at 317 n.3 (quoting Witzman v. Gross, 148 F.3d 988, 992 (8th Cir. 1998)).
cited Cited as authority (rule) Beyer v. North Dakota State Prison
D.N.D. · 2020 · confidence medium
Witzman v. Gross, 148 F.3d 988, 992 (8th Cir. 1998) (citing Paulucci, 826 F.2d at 783 ).
cited Cited as authority (rule) James Walther v. Fla. Tile, Inc.
6th Cir. · 2019 · confidence medium
See, e.g., Brown v. Baeke, 413 F.3d 1121, 1124 (10th Cir. 2005); Witzman v. Gross, 148 F.3d 988, 992 (8th Cir. 1998); United States v. Outboard Marine Corp., 789 F.2d 497, 502 (7th Cir. 1986).
discussed Cited as authority (rule) Craig Lyons v. Conagra Foods Packaged Foods L
8th Cir. · 2018 · confidence medium
Witzman v. Gross, 148 F.3d 988, 990 (8th Cir. 1998) (citing United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966); Mangold v. Cal. Pub.
discussed Cited as authority (rule) Jesus Cuellar-Aguilar v. Deggeller Attractions, Inc.
8th Cir. · 2015 · confidence medium
Witzman v. Gross, 148 F.3d 988, 990 (8th Cir.1998) (recognizing that federal courts exercising supplemental jurisdiction over state-law claims must apply the substantive law of the forum state); see also Cordova v. R & A Oysters, Inc., 101 F.Supp.3d 1192, 1199 (S.D.Ala.2015) (declining to find that “a federal agency’s thoughts on whether a contract exists does or could preclude the existence of a contract under state law”).
discussed Cited as authority (rule) Knutson v. UGS CORP.
7th Cir. · 2008 · confidence medium
Doe v. City of Chicago, 360 F.3d 667, 671-72 (7th Cir.2004); Chang v. Michiana Telecasting Corp., 900 F.2d 1085, 1087-88 (7th Cir.1990); Veilleux v. National Broadcasting Co., 206 F.3d 92, 131 (1st Cir.2000); Witzman v. Gross, 148 F.3d 988, 991 (8th Cir.1998); In re C-T of Virginia, Inc., 958 F.2d 606 , 611-12 (4th Cir.1992); Hinojosa v. City of Terrell, 834 F.2d 1223 , 1231 n. 12 (5th Cir.1988).
discussed Cited as authority (rule) Knutson, Roger v. UGS
7th Cir. · 2008 · confidence medium
Doe v. City of Chicago, 360 F.3d 667, 671-72 (7th Cir. 2004); Chang v. Michiana Telecasting Corp., 900 F.2d 1085, 1087-88 (7th Cir. 1990); Veilleux v. National Broadcasting Co., 206 F.3d 92, 131 (1st Cir. 2000); Witzman v. Gross, 148 F.3d 988, 991 (8th Cir. 1998); In re C-T of Virginia, Inc., 958 F.2d 606 , 611-12 (4th Cir. 1992); Hinojosa v. City of Terrell, 834 F.2d 1223 , 1231 n. 12 (5th Cir. 1988).
discussed Cited as authority (rule) In Re the Exxon Valdez, Sea Hawk Seafoods, Inc. v. Exxon Corporation and Exxon Shipping Company, and United States of America, Intervenor-Appellee
9th Cir. · 2007 · confidence medium
“Where state law supplies the rule of decision, it is the duty of federal courts to ascertain and apply that law.” Witzman v. Gross, 148 F.3d 988, 990 (8th Cir.1998) (internal quotation marks omitted).
discussed Cited as authority (rule) Sea Hawk v. Exxon Corp.
9th Cir. · 2007 · confidence medium
“Where state law supplies the rule of decision, it is the duty of federal courts to ascertain and apply that law.” Witzman v. Gross, 148 F.3d 988, 990 (8th Cir. 1998) (internal quotation marks omitted).
discussed Cited as authority (rule) Aventis Pasteur, Inc. v. Skevofilax
Md. · 2007 · confidence medium
Witzman v. Gross, 148 F.3d 988, 991-92 (8th Cir. 1998) (citing Paulucci v. City of Duluth, 826 F.2d 780, 783 (8th Cir.1987)); Gross v. Spies, 133 F.3d 914 , 1998 WL 8006 , *5 (4th Cir.1998) (unpublished opinion); Ohlander v. Larson, 114 F.3d 1531, 1537 (10th Cir.1997) citing Phillips U.S.A, Inc. v. Allflex U.S.A., Inc., 77 F.3d 354, 358 (10th Cir.1996); Kovalic v. DEC Int’l, Inc., 855 F.2d 471, 473-74 (7th Cir.1988) (quoting Pace v. Southern Express Co., 409 F.2d 331, 334 (7th Cir.1969)); Langley, 407 F.Supp.2d at 904-05 (N.D.Ohio 2005) (quoting Grover v. Eli Lilly & Co., 33 F.3d 716, 718 (6…
cited Cited as authority (rule) Woods v. Wills
E.D. Mo. · 2005 · confidence medium
Witzman v. Gross, 148 F.3d 988, 990 (8th Cir.1998) (citing United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 , 86 S.Ct. 1130 , 16 L.Ed.2d 218 (1966)).
discussed Cited as authority (rule) Jane Doe v. City of Chicago, and Charles White
7th Cir. · 2004 · confidence medium
Chang v. Michiana Telecasting Corp., 900 F.2d 1085, 1087-88 (7th Cir.1990); Afram Export Corp. v. Metallurgiki Halyps, S.A., 772 F.2d 1358, 1370 (7th Cir.1985); Veilleux v. National Broadcasting Co., 206 F.3d 92, 131 (1st Cir.2000); Witzman v. Gross, 148 F.3d 988, 991 (8th Cir.1998); In re C-T of Virginia, Inc., 958 F.2d 606 , 611-12 (4th Cir.1992); Hinojosa v. City of Terrell, 834 F.2d 1223 , 1231-32 and n. 12 (5th Cir.1988).
discussed Cited as authority (rule) Doe, Jane v. City of Chicago
7th Cir. · 2004 · confidence medium
Chang v. Michiana Telecasting Corp., 900 F.2d 1085, 1087-88 (7th Cir. 1990); Afram Export Corp. v. Metallurgiki Halyps, S.A., 772 F.2d 1358, 1370 (7th Cir. 1985); Veilleux v. National Broadcasting Co., 206 F.3d 92, 131 (1st Cir. 2000); Witzman v. Gross, 148 F.3d 988, 991 (8th 8 No. 03-2221 Cir. 1998); In re C-T of Virginia, Inc., 958 F.2d 606 , 611-12 (4th Cir. 1992); Hinojosa v. City of Terrell, 834 F.2d 1223 , 1231-32 and n. 12 (5th Cir. 1988).
discussed Cited as authority (rule) Elbaor v. Tripath Imaging, Inc.
5th Cir. · 2002 · confidence medium
Co. v. Costa Lines Cargo Services, Inc., 903 F.2d 352, 360 (5th Cir.1990) ("Where the plaintiff does not seek dismissal until a late stage and the defendants have exerted significant time and effort, the district court may, in its discretion, refuse to grant a voluntary dismissal.”); Witzman v. Gross, 148 F.3d 988, 992 (8th Cir.1998) ("We consider the following factors when determining whether a district court abused its discretion in denying a Rule 41(a)(2) motion: (1) the defendant’s effort and the expense involved in preparing for trial, (2) excessive delay and lack of diligence on the …
discussed Cited as authority (rule) Ampleman v. Trans States Airlines, Inc.
E.D. Mo. · 2001 · signal: cf. · confidence medium
Cf. Witzman v. Gross, 148 F.3d 988, 992 (8th Cir.1998) (discussing factors used by reviewing court when assessing discretionary Rule 41(a)(2) decision, including: defendant’s effort and expense preparing for trial, plaintiffs delay and diligence prosecuting action, explanation of need for dismissal, and pending dispositive motions).
cited Cited as authority (rule) In re Old Kent Mortgage Co. Yield Spread Premium Litigation
D. Minnesota · 2000 · confidence medium
Witzman v. Gross, 148 F.3d 988, 991 (8th Cir.1987).
discussed Cited as authority (rule) New Jersey Carpenters Health Fund v. Philip Morris, Inc.
D.N.J. · 1998 · confidence medium
See Firestone, 976 F.2d at 286 (finding that the beneficiaries did not have standing to recover for a decrease in the trust corpus because the misconduct was visited upon the creator of the trust); Witzman, 148 F.3d at 990 (holding that beneficiaries could not sue attorneys of the trust for legal malpractice because “beneficiaries are not direct recipients of the attorney’s services”).
cited Cited "see" Allen v. M.G. Oil
D.S.D. · 2024 · signal: see · confidence high
See Witzman v. Gross, 148 F.3d 988, 990 (8th Cir. 1998) (citing United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966)).
cited Cited "see" Anderson v. City of Minneapolis
D. Minnesota · 2018 · signal: see · confidence high
See Witzman v. Gross, 148 F.3d 988, 990 (8th Cir. 1998) (citing Gibbs, 383 U.S. at 726 ).
cited Cited "see" Smith v. Planned Parenthood of St. Louis Region
E.D. Mo. · 2004 · signal: see · confidence high
See Witzman v. Gross, 148 F.3d 988, 990 (8th Cir.1998) (citing United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 , 86 S.Ct. 1130 , 16 L.Ed.2d 218 (1966)).
cited Cited "see" Witzman v. Lehrman, Lehrman & Flom
Minn. · 1999 · signal: see · confidence high
See Witzman v. Gross, 148 F.3d 988 (8th Cir.1998).
discussed Cited "see, e.g." King v. Baxter County, Arkansas
W.D. Ark. · 2024 · signal: see, e.g. · confidence medium
See, e.g., Witzman v. Gross, 148 F.3d 988, 992 (8th Cir. 1998) (refusal to dismiss without prejudice not an abuse of discretion when defendant had expended considerable time and money defending suit, plaintiff had not been diligent, plaintiff's claims were precluded by law, and defendant had moved for summary judgment); Metro.
discussed Cited "see, e.g." Shelton v. Union Pacific Railroad Company
D. Neb. · 2020 · signal: see, e.g. · confidence medium
See, e.g., Witzman v. Gross, 148 F.3d 988, 992 (8th Cir. 1998) (refusal to dismiss without prejudice not abuse of discretion when defendant had expended considerable time and money defending suit, plaintiff had not been diligent, plaintiff's claims were precluded by law, and defendant had moved for summary judgment); Metro.
discussed Cited "see, e.g." Estes v. ECMC Group, Inc.
D.N.H. · 2019 · signal: see, e.g. · confidence medium
See, e.g., Witzman 4 Plaintiffs assert, and ECMC does not dispute, that Charles and his siblings met personally with Attorney Sheridan when the Marital Trust was created and received correspondence when Attorney Anderson replaced him. v. Gross, 148 F.3d 988, 990 (8th Cir. 1998); Young v. Vrechek, No. CV 09-00403 SOM-BMK, 2013 WL 4479198 , at *3-4 (D.
discussed Cited "see, e.g." Unity Healthcare, Inc. v. County of Hennepin
D. Minnesota · 2015 · signal: see also · confidence medium
See Felder v. Casey, 487 U.S. 131, 151 , 108 S.Ct. 2302 , 101 L.Ed.2d 123 (1988) (explaining that when a federal court exercises "pendent jurisdiction over state-law claims,” it is constitutionally obligated under Erie to "apply state law to state claims”); see also Witzman v. Gross, 148 F.3d 988, 990 (8th Cir.1998) ("When considering [the plaintiffs] supplemental state-law claims, we are bound by Minnesota law.") (citing Mangold v. Cal. Pub.
Retrieving the full opinion text from the archive…
Joyce WITZMAN, Appellant,
v.
Bert M. GROSS; Phillips & Gross, P.A., Formerly Known as Phillips, Gross & Aaron, P.A., Appellees
97-3057.
Court of Appeals for the Eighth Circuit.
Jul 7, 1998.
148 F.3d 988
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.
Wollman, Hansen, Goldberg.
Cited by 44 opinions  |  Published
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.

I.

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, Witz-man provided Wolfson with a comprehensive release from any claims arising out of the trust litigation.

Witzman and Wolfson’s cooperative relationship eventually deteriorated. After Witz-man 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[*990] 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 Witz-man’s motion to dismiss without prejudice.

II.

We first consider Witzman’s argument that the district court erroneously applied Minnesota law when it granted the appellees summary judgment and dismissed her claim with prejudice. The thrust of her argument is that the district court improperly concluded that she was unable to state a cause of action for either breach of trust or aiding and abetting a breach of trust against Wolfson’s attorneys. When considering Witzman’s supplemental state-law claims, we are bound by Minnesota law. See United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Mangold v. California Public Util. Comm’n, 67 F.3d 1470, 1478 (9th Cir.1995) (“The Erie principles apply equally in the context of pendent jurisdiction.”). “Where state law supplies the rule of decision, it is the duty of federal courts to ascertain and apply that law.” Kizzier Chevrolet, Co. v. General Motors Corp., 705 F.2d 322, 329 .(8th Cir.1983) (citing Stoner v. New York Life Ins. Co., 311 U.S. 464, 61 S.Ct. 336, 85 L.Ed. 284 (1940)). We review de novo the district court’s interpretation of Minnesota law. See Salve Regina College v. Russell, 499 U.S. 225, 231, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991).

It is a well established rule in Minnesota that an attorney is liable for professional malpractice “only to a person with whom the attorney has an attorney-client relationship.” Goldberger v. Kaplan, Strangis & Kaplan, P.A., 534 N.W.2d 734, 738 (Minn.Ct.App.1995) (review denied) (citing Marker v. Greenberg, 313 N.W.2d 4, 5 (Minn. 1981) (en banc)). Like many jurisdictions, Minnesota recognizes exceptions to this strict privity requirement. See Marker, 313 N.W.2d at 5. A nonclient may sue an attorney for professional malpractice when the non-client is a direct, intended beneficiary of the attorney’s services. See Goldberger, 534 N.W.2d at 738. Witzman, however, can establish neither that she had an attorney-client relationship with the appellees, nor that she is a direct, intended beneficiary of their services. The appellees were hired by Wolfson to counsel him in his capacity as trustee for the Wolfson family trusts. The appellees’ duty and loyalty lie with serving the best interests of the trusts and do not run to Witzman. See id. at 739 (citing Spinner v. Nutt, 417 Mass. 549, 631 N.E.2d 542, 546 (1994)).

Moreover, as a general rule of trust law, a beneficiary cannot bring an action at law in a trust’s stead against a third party for torts or other wrongs. See Uselman v. Uselman, 464 N.W.2d 130, 137 (Minn.1990) (en banc); Ricke v. Armco, Inc., 92 F.3d 720, 724 (8th Cir.1996). In Minnesota, this principle extends to beneficiaries who attempt to sue a trustee’s attorneys for legal malpractice. See Goldberger, 534 N.W.2d at 739; Anoka Orthopaedic Assocs., P.A. v. Mutschler, 773 F.Supp. 158, 168 (D.Minn.1991). The rationale for this restriction is three-fold. First, as related above, beneficiaries are not direct recipients of the attorney’s services. Second, such a restriction does not completely preclude all malpractice actions against the trustee’s attorney. “If a third person commits a tort against trust property, the trustee has a duty to take reasonable steps to compel the tortfeasor to redress the injury.” Uselman, 464 N.W.2d at 137. This contingency provides an incentive for the trustee to bring an action against a wrongdoing attorney. See Goldberger, 534 N.W.2d at 739. Finally, permitting a beneficiary to sue a trustee’s attorney could create an impermissible conflict of interest. See id.; Spinner, 631 N.E.2d at 553-54. Under Minnesota law, the mere potential for a conflict makes a direct action by the beneficiary inappropri[*991] ate. See Goldberger, 534 N.W.2d at 739. Absent an applicable exception to this principle, Witzman cannot sustain a professional malpractice action against the attorneys.

Witzman contends that Uselman, 464 N.W.2d at 137-38, provides her with an exception to the general rule that beneficiaries cannot sue trustee’s attorneys on behalf of a trust. The court in that case recognized that “[w]hen the trustee fails to bring suit against a third party tortfeasor, the beneficiaries may properly bring an action against the trustees and third parties as co-defendants.” Uselman, 464 N.W.2d at 137-38; see also Anoka Orthopaedic, 773 F.Supp. at 168. Witzman, who originally named the appellees as defendants, sought to join Wolfson as a defendant in her motions for leave to amend her complaint. She now asserts that by joining Wolfson as a defendant, she can continue with her claims against the attorneys. We do not agree, for to accept Witzman’s argument would extend Uselman beyond its facts. The Uselman court, in the process of determining a purely procedural issue regarding a party’s right to a jury trial, recognized that a beneficiary may join the trustee and tortfeasor as co-defendants if the trustee’s protection of the trust is not forthcoming. Thus, the court described, at most, a mechanism for holding both trustees and third parties responsible when trustees fail to carry out their fiduciary duties. The court neither described nor attempted to create any third party duties to a trust beneficiary.

Goldberger, on the other hand, unequivocally states that a beneficiary cannot proceed directly against a trustee’s attorney for professional malpractice. See 534 N.W.2d at 739. Witzman is not a direct recipient of the appellees’ services. Moreover, she is not without alternative methods of pursuing her claims. As the Goldberger court suggested, a trustee who fails to bring an action against a wrongdoing attorney may be liable for a fiduciary breach. See 534 N.W.2d at 739. Enabling Witzman to sue Wolfson’s attorneys would create the possibility of an impermissible conflict of interest. We cannot assume that the Minnesota courts would be willing to impose third party duties on a trustee’s attorney. A federal court “should proceed with great caution when the effect of its ruling would be to broaden the law beyond the point where any other court has yet ventured.” W.A Wright v. KDI Sylvan Pools, Inc., 746 F.2d 215, 218 (3rd Cir.1984); see also Afram Export Corp. v. Metallurgiki Halyps, S.A., 772 F.2d 1358, 1370 (7th Cir.1985) (“Federal judges are disinclined to make bold departures in areas of law that we have no responsibility for developing.”).

Witzman contends that the district court erred in holding that a cause of action for aiding and abetting a breach of trust does not exist in Minnesota. Citing D.W. v. Radisson Plaza Hotel Rochester, 958 F.Supp. 1368, 1380 (D.Minn.1997), the court concluded that Minnesota did not recognize such an action. Witzman cites two Minnesota Supreme Court eases for the proposition that aiding and abetting a breach of trust is actionable. See Greenwood v. Evergreen Mines Co., 220 Minn. 296, 19 N.W.2d 726, 733 (1945); Virtue v. Creamery Package Mfg. Co., 123 Minn. 17, 142 N.W. 930, 939 (1919). Because we conclude that her allegations that the appellees aided and abetted a breach of trust are precluded by Goldberger, we need not consider this argument. Her aiding and abetting claim against the attorneys creates the same concerns raised by her breach of trust allegations, and she cannot circumvent the holding in Goldberger by restating her claim as an action for aiding and abetting tortious conduct. Once again, we believe that the prudent course is to hold that Witzman must proceed against Wolfson in order to seek redress for any alleged misconduct by his attorneys.

III.

Witzman contends that the district court abused its discretion when it denied her motion for voluntary dismissal without prejudice. “[A]n action shall not be dismissed at the plaintiffs instance save upon order of the court and upon such terms and conditions as the court deems proper.... Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.” Fed.R.Civ.P. 41(a)(2). “Motions to dismiss without prejudice are addressed to the sound discretion of the district courts.”[*992] Kern. v. TXO Prod. Corp., 738 F.2d 968, 970 (8th Cir.1984). We consider the following-factors when determining whether a district court abused its discretion in denying a Rule 41(a)(2) motion:

(1) the defendant’s effort and the expense involved in preparing for trial, (2) excessive delay and lack of diligence on the part of the plaintiff in prosecuting the action, (3) insufficient explanation of the need to take a dismissal, and (4) the fact that a motion for summary judgment has been filed by the defendant.

See Paulucci v. City of Duluth, 826 F.2d 780, 783 (8th Cir.1987).

The appellees have expended considerable effort and money defending against Witz-man’s action. Witzman has been lacking in diligence in prosecuting this action. Rather than submitting a rebuttal to the appellees’ motion for summary judgment, she responded by offering amended complaints that were inconsistent with the Federal Rules and by then seeking voluntary dismissal. “Reasons of judicial economy alone would appear to dictate that one full and fair attempt to prove this claim is enough.” Wakefield v. Northern Telecom, Inc., 769 F.2d 109, 114 (2d Cir.1985). Moreover, we are not persuaded that Witzman has stated a sufficient explanation for her proposed dismissal. As we held in Part II of this decision, Witzman’s claims are precluded by Minnesota law. Although she argues that Wolfson’s failure to assist her in an action against his attorneys was a violation of their settlement agreement and, as a result, constituted a changed circumstance requiring dismissal without prejudice, she nevertheless cannot proceed against his attorneys on her own. Accordingly, the district court acted within its sound discretion in denying Witzman’s motion to voluntarily dismiss without prejudice.

The judgment is affirmed.

2

. The Honorable David S. Doty, United States District Judge for the District of Minnesota.

3

. In view of our disposition of the appeal, we need not rule on the appellees' motion to dismiss that portion of the appeal that challenges the magistratc judge's rulings on the motion to amend the complaint.