Barbara Schmidt, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A24-0089

Barbara Schmidt,
Appellant,

vs.

City of Orono,
Respondent,

Minnesota Department of Natural Resources, et al.,
Defendants.

Filed August 12, 2024
Reversed and remanded
Kirk, Judge *

Hennepin County District Court
File No. 27-CV-21-7769

Bryan J. Huntington, Kyle L. Vick, Larkin Hoffman Daly & Lindgren Ltd., Minneapolis,
Minnesota (for appellant)

Jared D. Shepherd, Leah C.M. Koch, Campbell Knutson, P.A., Eagan, Minnesota (for
respondent)

Considered and decided by Harris, Presiding Judge; Schmidt, Judge; and Kirk,
Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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NONPRECEDENTIAL OPINION
KIRK, Judge
Appellant argues that the district court erred by dismissing with prejudice her action
under the Minnesota Environmental Rights Act (MERA) , Minn. Stat. §§ 116B.01- .13
(2022), for failure to comply with statutory service and publication requirement s. We
reverse and remand for entry of judgment of dismissal without prejudice.
FACTS
Appellant Barbara Schmidt resides in respondent City of Orono (the city). Schmidt
shares a property line with Bederwood Park (the park) . In May 2021, Schmidt noticed
“destruction in the wooded areas” of the park that spread to her property. In June, Schmidt
attended city council meetings where she learned of a proposal for a mountain bike trail in
the park.
On June 18, 2021, Schmidt filed a complaint against the city,1 alleging that the city
violated the MERA. Schmidt sought declaratory and equitable relief to prevent the bike
trail from destroying natural resources. In July 2021, the city moved to dismiss , arguing
that Schmidt had not pleaded sufficient facts to survive a motion to dismiss . The district
court denied the city’s motion to dismiss, determining that Schmidt’s complaint, taken as
true, “adequately assert[ed] the actions that constitute pollution, impairment, or
destruction” and “sufficiently pled the MERA claim.”

1 Throughout the proceeding, d efendants Minnesota Department of Natural Resources
(DNR), Minnehaha Creek Watershed District , and City of Orono Public School District
were dismissed from the action.
3
On October 5, 2023, the city again moved to dismiss. The city alleged that, under
the MERA, Schmidt was required “to serve the summons and complaint upon the Attorney
General and the Minnesota Pollution Control Agency (MPCA) within seven days and
publish notice of her claim within 21 days after commencing the action.” The city claimed
that Schmidt failed to meet these statutory requirements, which “ deprive[d] the [district]
court of jurisdiction over the [MERA] claim .”
Schmidt argued that she complied with all statutory requirements because she
followed directives issued due to the pandemic. After the city moved to dismiss, Schmidt
then provided proof of service and publication that occurred in October 2023.
The district court granted the city’s motion to dismiss “with prejudice.” The district
court noted that Schmidt was required to serve a copy of the complaint on the MPCA and
the Attorney General’s office by June 25, 2021, and publish written notice in a local
newspaper by July 9, 2021. The district court found that Schmidt failed to comply with
service and publication requirements. This appeal followed.
DECISION
Schmidt argues that the district court should not have dismissed her complaint with
prejudice. This court reviews the district court’s dismissal with prejudice for an abuse of
discretion. Minn. Humane Soc’y. v. Minn. Federated Hum. Soc’ys., 611 N.W.2d 587, 590
(Minn. App. 2000). A district court abuses its discretion if it improperly applies the law.
Honke v. Honke, 960 N.W.2d 261, 265 (Minn. 2021).
Dismissal with prejudice on the merits is appropriate when a complaint fails to state
a claim upon which relief can be granted. Martens v. Minn. Mining & Mfg. Co., 616
4
N.W.2d 732, 748 (Minn. 2000) (holding that whe n district court granted motion to dismiss
for failure to state a claim on the merits, the “complaint should be dismissed with
prejudice”). Here, the district court had denied the city’s motion to dismiss for failure to
state a claim upon which relief can be granted . The dismissal was not on the merits.
Rather, the dismissal was for procedural errors —Schmidt’s failure to comply with service
and notice requirements under the MERA. See Minn. Stat. § 116B.03, s ubd. 2 (providing
service and notice requirements for plaintiffs). The district court determined that it lacked
subject-matter jurisdiction because of Schmidt’s failure to comply with the service and
notice requirements.
Schmidt “agrees that the failure to comply with the service requirements required
by the statute deprives the district court of subject [-]matter jurisdiction over the MERA
claim.” She does not argue that she complied with the statutory requirements and does not
challenge the dismissal. Schmidt challenges only the dismiss al with prejudice.
This court addressed a challenge to a dismissal with prejudice for lack of service in
Thielen v. Eden Valley Sportsman’s Club. No. A21-0634, 2022 WL 663166 (Minn. App.
Mar. 7, 2022). 2 Thielen involved a dispute over a conditional -use permit. Id., at *1. The
district court dismissed the case, concluding that appellants did not properly serve the
county. Id., at *2. Appellants argued on appeal that the district court erred by dismissing
the county based on insufficient service of process; alternatively, if the county was properly

2 “Nonprecedential opinions and order opinions are not binding authority except as law of
the case, res judicata or collateral estoppel, but nonprecedential opinions may be cited as
persuasive authority.” Minn. R. Civ. App. P. 136.01, subd. 1(c) .
5
dismissed, the dismissal should not have been with prejudice. Id. This court concluded
that the district court did not err by dismissing the county from the action for lack of
personal jurisdiction for ineffective service of process . Id., at *3.
But this court concluded that the district court did err by dismissing with prejudice.
Id. This court stated: “An order of dismissal on procedural grounds runs counter to the
primary objective of the law to dispose of cases on the merits.” Id. (quoting Firoved v.
Gen. Motors Corp., 152 N.W.2d 364, 368 (Minn. 1967)). It further stated: “When a party
is dismissed for ineffective service of process, the proper action is for the court to dismiss
the party without prejudice.” Id. (citing Lewis v. Contracting Nw., Inc., 413 N.W.2d 154,
156 (Minn. App. 1987)); see also 1 David F. Herr & Roger S. Hayd ock, Minnesota
Practice, Civil Rules Annotated § 12:8 (6th ed. 2021) (“The proper action to be taken by
the court, if it finds insufficient service of process, is to dismiss the action without
prejudice.”). Accordingly, this court determined that dismissal was appropriate, but it
should be without prejudice. Id., at *4.
The district court here seems to have distinguished this matter from Thielen because
the dismissal here is for lack of subject-matter jurisdiction rather than personal jurisdiction.
But the dismissal here was for failing to comply with procedural requirements, like Thielen.
There is no dispute that the district court’s dismissal was for lack of subject -matter
jurisdiction. A dismissal for lack of subject -matter jurisdiction is not an adjudication on
the merits. See Minn. R. Civ. P. 41.02(c) (specifying that dismissal does not operate as an
adjudication on the merits if the district court dismisses for lack of jurisdiction).

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Because there has been no adjudication on the merit s, the dismissal should have
been without prejudice. We reverse and remand for entry of dismissal without prejudice.
Reversed and remanded.