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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Ruckle v. Anchorage School District (02/27/2004) sp-5784

Ruckle v. Anchorage School District (02/27/2004) sp-5784

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.

            THE SUPREME COURT OF THE STATE OF ALASKA

KELLY RUCKLE,                           )
                              )    Supreme Court No. S-10422
             Appellant,                 )
                              )    Superior Court No.
     v.                       )    3AN-01-9106 CI
                              )
ANCHORAGE SCHOOL DISTRICT          )    O P I N I O N
and STATE OF ALASKA,               )
DEPARTMENT OF EDUCATION            )     [No. 5784 - February 27,
                                   2004]
AND EARLY DEVELOPMENT,        )
                              )
             Appellees.                 )
________________________________)

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Mark Rindner, Judge.

          Appearances:  Robert K. Stewart,  Jr.,  Davis
          Wright    Tremaine   LLP,   Anchorage,    for
          Appellant.   Howard  S. Trickey  and  Matthew
          Singer,  Jermain  Dunnagan  &  Owens,   P.C.,
          Anchorage,  for  Appellee  Anchorage   School
          District.  G. Ken Truitt, Assistant  Attorney
          General,   and  Bruce  M.  Botelho,  Attorney
          General,   Juneau,  for  Appellee  State   of
          Alaska,  Department  of Education  and  Early
          Development.

          Before:   Matthews,  Eastaugh,  Bryner,   and
          Carpeneti,  Justices.  [Fabe, Chief  Justice,
          not participating.]

          CARPENETI, Justice.

I.   INTRODUCTION

          I.   Kelly Ruckle challenged the decision of the Anchorage

School  District to grant its school transportation  contract  to

First  Student, Inc. and sought a declaration voiding the  states

regulation   governing  pupil  transportation   contracts.    The

superior  court  dismissed with prejudice Ruckles claims  against

both the school district and the state for lack of subject matter

jurisdiction and denied her request to file an amended complaint.

We  agree  with  the  superior court that Ruckle  does  not  have

citizen-taxpayer standing with respect to her claims against  the

district.  However, we conclude that the superior court erred  in

refusing  to  grant  Ruckle leave to file an  amended  complaint.

Because  we  remand on these grounds, we find it  unnecessary  to

determine  whether the superior courts dismissal  with  prejudice

was appropriate.

II.  FACTS AND PROCEEDINGS

          I.   On October 4, 2000 the Anchorage School District (ASD),

seeking a school bus company to transport its students, issued  a

Request  for  Transportation Proposals (RFP).  It  received  five

bids for the five-year contract.  According to Ruckle, the lowest

and  only responsive bid was submitted by Laidlaw Transit,  Inc.,

ASDs incumbent provider of school bus service.  The second lowest

bidder  was First Student, Inc.  Despite the alleged deficiencies

in its bid,1 ASD certified First Students bid as responsive.  ASD

permitted  First Student to match Laidlaws bid price and  decided

that  an  award  to First Student would be in the districts  best

interest.  A notice of intent to award the school bus contract to

First Student was issued on January 19, 2001.

          Laidlaw then instituted an action against ASD and First

Student,  asking  the  court, among other things,  to  invalidate

First  Students  proposal and enjoin ASD  from  contracting  with

them.2  Laidlaw requested declaratory and injunctive relief,  and

money  damages.   On May 18, 2001 Superior Court Judge  Peter  A.

Michalski  issued  an  order converting  Laidlaws  action  to  an

administrative  appeal,  since many of  the  claims  in  Laidlaws

complaint  were  based on the administrative  decisions  of  ASD.

Judge Michalski bifurcated and stayed any claims which could  not

be  reached  as part of the administrative appeal and halted  all

discovery until the appeal could be resolved.

          Laidlaw  then  approached Kelly Ruckle to determine  if

she  would be interested in commencing litigation in this matter.

Kelly Ruckle was at that time employed as a secretary by Laidlaws

law firm, Hartig Rhodes Hoge & Lekisch and was also a taxpayer in

the  Municipality of Anchorage and the mother of two children who

attended ASD schools and who rode school buses operated by  First

Student.   She  was  referred to Davis Wright  Tremaine  LLP  for

representation.   On  July  23, 2001  Ruckle  filed  a  complaint

against ASD and the State of Alaska, Department of Education  and

Early Development (state), alleging nearly all of the same claims

against  ASD  as Laidlaw had.  However, whereas Laidlaw  did  not

challenge  any of the states conduct, Ruckle argued that  one  of

its  regulations,  4  Alaska Administrative Code  (AAC)  27.085,3

violates  the  State  Procurement Code, AS  36.30,  that  it  was

adopted   without  proper  statutory  authority,  and   that   it

constitutes a standardless delegation of authority.  In addition,

while  Laidlaw  sought  money  damages,  Ruckle  requested   only

declaratory   and  injunctive  relief.   Ruckles  complaint   was

assigned to Superior Court Judge Mark Rindner.

          Instead  of  filing an answer, ASD filed  a  motion  to

dismiss,  which was later joined by the state, which argued  that

Ruckle  did  not  have  citizen-taxpayer standing  and  that  the

complaint  should therefore be dismissed under Alaska Civil  Rule

12(b)(1)  for  lack  of  subject  matter  jurisdiction.4   Ruckle

opposed,  arguing that she had standing as a citizen and taxpayer

and  as  a member of the class of persons the procurement statute

was designed to protect.

          Judge  Rindner  granted the motion  to  dismiss,  which

prompted Ruckle to request reconsideration.  She argued that  she

should  be  permitted to litigate her claims  against  the  state

because Laidlaw was not pursuing those claims, and therefore they

would  likely evade review.  Judge Rindner denied Ruckles  motion

for  reconsideration, but before receiving notice of the  denial,

Ruckle  filed an amended complaint in which she alleged that  she

          had interest-injury standing.  ASD asked the court to strike

Ruckles  amended complaint because it was filed without leave  of

the  court.  ASD also argued that Ruckle should not be  permitted

to  re-allege citizen-taxpayer standing since her first complaint

had  already  been  dismissed for lack of such standing.   Ruckle

opposed  ASDs  motion, contending that she had timely  filed  her

amended  complaint pursuant to Alaska Civil Rule 15(a) and  that,

in the absence of an Alaska rule barring the filing of an amended

pleading after dismissal but before entry of judgment, she should

be  permitted to amend her complaint as a matter of  course.   In

response,  ASD  maintained that, even if it might be  permissible

for  Ruckle  to  amend her complaint, she should be  required  to

request leave of the court and such leave should be denied  since

amendment would be futile and she had failed to take advantage of

earlier opportunities to do so.

          Ruckle   then   moved  for  leave  to  supplement   her

opposition to ASDs motion to strike, informing the court that her

daughter had been in an accident involving a First Student bus on

December  6,  2001,  thereby clarifying her standing  status  and

demonstrating  the  legitimate concerns she  has  concerning  the

safety  of  the school buses operated by First Student under  the

contract  awarded  it  by the ASD.  Judge  Rindner  granted  ASDs

motion  to strike the amended complaint and advised Ruckle  that,

if she still believed she had interest-injury standing, she could

file a complaint seeking relief appropriate to such a claim.   On

the  same  day,  February 4, 2002, Judge  Rindner  entered  final

judgment  in  the  matter,  dismissing  with  prejudice   Ruckles

complaint for lack of subject matter jurisdiction.

          Finally,  Ruckle filed a motion seeking  to  amend  the

judgment,  arguing  that  the court  should  have  dismissed  her

complaint  without prejudice so as to allow her  to  file  a  new

complaint without running afoul of res judicata.  That motion was

also denied and Ruckle appealed.

III. STANDARD OF REVIEW

          We review de novo a superior courts decision to dismiss

a complaint for lack of subject matter jurisdiction.5

          Whether  an  amended  complaint  may  be  filed   after

dismissal  without leave of the court is a question of  law.   We

scrutinize  questions  of  law under a  de  novo  or  independent

judgment standard of review.  When reviewing a question  of  law,

it  is  our duty to adopt the rule of law that is most persuasive

in light of precedent, reason and policy. 6

          We  review  under  the abuse of discretion  standard  a

superior  courts decision to deny a plaintiff leave  to  file  an

amended  complaint7 and a superior courts decision to  dismiss  a

complaint with prejudice.8    We will reverse a ruling for  abuse

of discretion only when left with a definite and firm conviction,

after  reviewing the whole record, that the trial court erred  in

its ruling.9

IV.  DISCUSSION

     A.   The  Superior  Court Did Not Err in Dismissing  Ruckles

          Complaint  Against  ASD  for Lack  of  Citizen-Taxpayer

          Standing.

          In  dismissing Ruckles original complaint against  ASD,

the  superior  court  found that Ruckle  could  not  satisfy  the

requirements  of citizen-taxpayer standing and, therefore,  could

not  pursue  her claims against ASD under the theory advanced  in

the  original  complaint.  Ruckle had requested  declaratory  and

injunctive  relief, both of which the superior court could  grant

pursuant  to  AS  22.10.020.10  As the basis for  her  complaint,

Ruckle alleged that she is a resident of Anchorage, Alaska and  a

taxpayer in the municipality of Anchorage.  ASD immediately moved

to  dismiss, arguing that Ruckle had not demonstrated  sufficient

interest-injury or citizen-taxpayer standing and, therefore, that

the  court  should dismiss her action for lack of subject  matter

jurisdiction.

          We  have  held that all that is required of a complaint

seeking  declaratory  relief  is  a  simple  statement  of  facts

          demonstrating that the superior court has jurisdiction and that

an  actual justiciable case or controversy is presented.11  Under

our case law, the actual case or controversy language encompasses

a  number  of  more  specific reasons  for  not  deciding  cases,

including lack of standing, mootness, and lack of ripeness.12  At

issue  in this case is whether Ruckle has standing to pursue  her

claims  against  ASD  and  the  state.  We  have  observed   that

[s]tanding in our state courts is not a constitutional  doctrine;

rather,  it  is a rule of judicial self-restraint  based  on  the

principle  that courts should not resolve abstract  questions  or

issue  advisory opinions.  The basic requirement for standing  in

Alaska is adversity.13

          We  have  recognized  two forms of standing:  interest-

injury and citizen-taxpayer.14  In her original complaint, Ruckle

only  relied on citizen-taxpayer standing.  Under Alaska law,  to

establish such standing a taxpayer or citizen need only show that

the  case  in  question  is one of public  significance  and  the

plaintiff   is   appropriate   in   several   respects.15    This

[a]ppropriateness has three main facets: the plaintiff  must  not

be a sham plaintiff with no true adversity of interest; he or she

must  be  capable of competently advocating his or her  position;

and  he  or  she  may  still be denied standing  if  there  is  a

plaintiff  more  directly affected by the challenged  conduct  in

question who has or is likely to bring suit. 16

          The superior court focused on the third factor used  to

determine Ruckles appropriateness as a plaintiff  whether another

plaintiff is more directly affected by the action in question and

has  brought  suit  or  is likely to bring suit   and  explicitly

declined  to  rule  on Ruckles fulfillment of the  remaining  two

appropriateness requirements.  Because Laidlaw had already raised

nearly   identical  claims  against  ASD,  the   superior   court

concluded:

               Ruckle clearly fails the third aspect of
          the  appropriate plaintiff  test.   There  is
          another  plaintiff more directly affected  by
          the  challenged conduct in question  who  has
               brought  suit.   This  court  need   not
          hypothetically   question   whether   another
          plaintiff  exists  who may bring  forth  suit
          against ASD.  Laidlaw filed a lawsuit against
          ASD   almost  six  months  prior  to  Ruckles
          lawsuit.  Laidlaw was the former provider  of
          transportation for ASD and is  more  directly
          affected  by  ASDs awarding the  contract  to
          First Student.
          
According  to  the  court, Ruckle lacks standing  as  a  citizen-

taxpayer because another plaintiff more directly affected by  the

complained  of  conduct, Laidlaw, has already filed  a  virtually

identical  lawsuit concerning the subject matter  of  this  case.

Because  Ruckle  lacks standing, the court lacks  subject  matter

jurisdiction and cannot address Plaintiffs claims.

          Ruckle  argues  that the superior court  erred  in  its

determination that she was not the most appropriate plaintiff  to

bring  this  suit.  She contends that, because citizens  comprise

the  class  specifically  protected  by  the  public  procurement

system,  the most appropriate plaintiff in any challenge  to  the

award of a public contract should be selected from that class  of

people.   In support of her argument, Ruckle cites several  cases

which  hold that all members of the public, not the bidders,  are

the  intended  beneficiaries  of the competitive  public  bidding

system.  In McBirney & Associates v. State,17 this court explained

that the purposes of the competitive public bidding system are:

          to  prevent fraud, collusion, favoritism, and
          improvidence in the administration of  public
          business,  as  well  as to  insure  that  the
          [state] receives the best work or supplies at
          the most reasonable prices practicable.
               .   .  .  [T]he  requirement  of  public
          bidding   is  for  the  benefit  of  property
          holders  and  taxpayers,  and  not  for   the
          benefit of the bidders; and such requirements
          should  be construed with the primary purpose
          of best advancing the public interest.[18]
          
By  virtue  of  her position as both a citizen  and  a  taxpayer,

Ruckle  argues  that she will best represent  the  broad  set  of

interests  common to other citizens and taxpayers  of  Anchorage,

while Laidlaw will represent only its own economic interests.

          Ruckle  also  cites  a  number  of  cases  from   other

jurisdictions  which  she  argues support  the  proposition  that

taxpayers,  rather  than bidders, should be granted  standing  to

challenge  flaws  in  public bidding  systems.   These  cases  do

support  the proposition that citizen-taxpayers have standing  to

challenge the results of public bidding systems.19  However, none

of these cases involve a situation, such as the one at bar, where

both  the  bidder and a citizen-taxpayer have filed suit  on  the

same  issue, and three of the cases hail from jurisdictions where

bidders  are  only permitted to challenge the bid  procedures  of

municipalities in which they are also municipal taxpayers.20  This

is  not  the  law  in  Alaska.  Here,  unsuccessful  bidders  may

administratively appeal bid decisions and may pursue  bid-related

claims against a state agency in court.21  Furthermore, ASD  does

not argue that Ruckle could never establish standing based on her

citizen-taxpayer  status, but rather it contests  the  idea  that

both  Ruckles and Laidlaws claims should be permitted to  proceed

at the same time.

          ASD also contends that Ruckles claim that, as a citizen

and  taxpayer, she is a more appropriate plaintiff  than  Laidlaw

misconstrues the test for citizen-taxpayer standing,  and  relies

on the unsupportable presumption that an ordinary citizen is more

affected by the award of the Districts $45 million transportation

contract  than is the incumbent contractor who lost the contract.

ASD compares Laidlaws request for money damages and its right  to

recover  money for bid preparation costs if it can show that  the

government agency failed to consider its bid fairly and  honestly

to  Ruckles  claim  for  declaratory and injunctive  relief,  and

maintains that it is untenable that Ruckle could be more directly

affected   by  the  outcome  of  this  litigation  than  Laidlaw.

Furthermore,  ASD  questions Ruckles claim  that  she  represents

different  and  broader interests than Laidlaw, and  argues  that

[e]very one of Ruckles alleged defects in the procurement process

were previously alleged by Laidlaw [and] [t]he relief that Ruckle

          seeks is the same relief that Laidlaw seeks.

          Finally, Ruckle argues that she should be permitted  to

proceed  with her lawsuit despite Laidlaws pending appeal because

the   issues   of   whether  the  First  Student   proposal   was

nonresponsive  and  whether the ASDs best interest  determination

was  flawed might evade review in Laidlaws administrative appeal.

Ruckle claims that under 4 AAC 27.085(e),22 a finding that a  bid

is nonresponsive can only be challenged by that bidder, not by  a

competing  bidder, such as Laidlaw.  In addition,  Ruckle  argues

that  4 AAC 27.085(g)23 limits challenges by unsuccessful bidders

to  fraud or mathematical errors and does not permit a bidder  to

contest an award on the basis that a best interests determination

was  flawed.   However, while 4 AAC 27.085(e) and (g)  limit  the

bases  upon  which  a  bidder  can  move  the  school  board  for

reconsideration, a bidder can seek judicial review of the  boards

decision  by  the superior court under Alaska Rule  of  Appellate

Procedure 602(a)(2).24

          The   analysis  of  ASD  and  the  superior  court   is

compelling.  Not only is it clear that another party has  brought

suit to vindicate these interests, but under the circumstances we

agree  that  Laidlaw is the more appropriate  plaintiff  in  this

case.   As  the  superior court notes, we have  encouraged  trial

courts to evaluate the appropriateness of plaintiffs on a case-by-

case basis.  In this situation, we agree that allowing Ruckle  to

proceed  with  her  claims  against ASD  would  be  unnecessarily

duplicative  given Laidlaws enormous economic incentive  and  the

fact  that it has already filed suit.  Because Laidlaw has raised

similar, if not identical, claims against ASD in its lawsuit, and

because  Ruckle has been unable to demonstrate a likelihood  that

these  issues  will  evade  review  during  the  course  of   the

administrative appeal, we affirm the superior courts decision  to

dismiss  Ruckles  complaint against  ASD  for  lack  of  citizen-

taxpayer standing.

     B.   After  Dismissal Ruckle Was Not Entitled To  Amend  Her
          Complaint Without Leave of the Court.
          
          After  entry of the courts order dismissing her  claims

against  ASD  and  the state, Ruckle filed an amended  complaint.

Several times prior to filing, Ruckle informed the court that she

planned to exercise her right under Civil Rule 15(a)25 to file an

amended  complaint.26  The amended complaint  differed  from  the

original  complaint  only in that, for  the  first  time,  Ruckle

alleged interest-injury standing.

          Judge  Rindner  granted ASDs motion to  strike  Ruckles

amended  complaint.  He stated that he would  proceed  as  though

Ruckle  had requested leave to file an amended complaint, but  he

denied  Ruckles motion because the court dismissed the  case  for

lack  of  subject matter jurisdiction.  Judge Rindner noted  that

[i]f  Ruckle  believes she has a claim based  on  interest-injury

standing  she  may  file  a  separate  complaint  seeking  relief

appropriate to that claim.

          Ruckle argues that the superior court erred in striking

her  complaint, because she should have been permitted  to  amend

her complaint once as a matter of course without seeking leave of

the  court  since a responsive pleading had never been served  as

required  by  Civil  Rule  15(a).   Whether  Rule  15(a)  permits

amendment  without leave of the court after an order of dismissal

has been entered is a question of first impression in Alaska.

          Essentially,  Ruckle argues that, because a  responsive

pleading was never filed, we should liberally construe Rule 15(a)

to  allow  her to amend her complaint without leave of the  court

within  a reasonable time of service of the order dismissing  the

complaint.   The  parties  agree that there  is  no  Alaska  rule

explicitly addressing this issue and that the federal courts  are

divided  as  to whether the right to amend a pleading under  Rule

15(a)  without  leave of the court survives  a  dismissal  order.

Three main approaches to this question have been adopted by other

courts  and  were recently summarized in an Eastern  District  of

Pennsylvania decision, United States v. Union Corp.27

          Under  the  first approach, which has been  applied  in

          some Ninth Circuit cases, the right to amend once as a matter of

course  never  terminates,  even  if  the  original  pleading  is

dismissed  by the district court, until a responsive pleading  is

filed.28  As the Union Corp. court explained, [t]his approach  is

based  on a rigid, literal reading of the language of Rule  15(a)

that the right to amend continues until a responsive pleading  is

filed,  regardless of what might happen prior to  the  filing  of

that  responsive pleading; because the rule is silent as  to  the

effect  of an intervening dismissal of that pleading, such action

had no effect on the right to amend.29  Neither party supports the

adoption of this approach.

          The  second  approach, which has been followed  in  the

majority  of  circuits, is that the right to amend without  leave

terminates  upon  the  entry  of an order  of  dismissal.30   ASD

champions  this  rule because it gives substantial  effect  to  a

lower  courts determination that a claim should be dismissed,  it

prevents  a party from repleading a claim which has already  been

disposed  of, and it encourages litigants not to sleep  on  their

rights  and  waste  judicial resources  by  waiting  until  after

dismissal to amend their complaints.

          Ruckle  prefers the third approach, in which the  right

to  amend  survives the granting of a motion to  dismiss  but  is

extinguished by the entry of judgment.31  This approach has  been

adopted  in certain situations by the Seventh and Ninth  Circuits

and  is  based on principles of finality  only after  the  entire

action  has been dismissed in a final and appealable order should

the right to amend terminate, at which point the plaintiff either

may appeal or seek leave of the district court to reopen the case

so she may pursue an amended complaint.32  Ruckle argues that this

approach  best  comports with the plain language of  Rule  15(a),

that  it would be most consistent with the superior courts  order

in this case recognizing Ruckles reservation of her right to file

an  amended  complaint, and that it is most closely aligned  with

Alaskas  approach  to finality for purposes of appeal.   Finally,

          Ruckle argues that the rule which [she] advances promotes even

more consistency and certainty than [the rule] adopted by certain

of  the  federal circuits which rely upon the heavily  criticized

test of whether a particular order is a final decision which ends

litigation on the merits.

          There  are strong arguments for each interpretation  of

Rule 15(a).  However, we believe that the majority rule  the  one

espoused  by ASD  is the one which best reflects our longstanding

concerns  with  consistency, fairness, and  finality,  and  which

accords appropriate deference to the superior court.  Adoption of

this  rule would allow an opposing party to rely on the  finality

of  a  dismissal, while providing an opportunity to respond to  a

request  to amend should the circumstances so require.  It  would

also facilitate an efficient use of resources, require parties to

exercise  their rights sooner rather than later, and prevent  the

unnecessary overextension of litigation.  While this  rule  would

undoubtedly restrict the plaintiffs right to amend without leave,

we  have  long  held that leave to amend should  not  usually  be

difficult  to obtain.33  Thus, where plaintiffs have demonstrated

valid reasons for amending a pleading, they will be permitted  to

do  so.   We  believe  that adoption of  this  rule  strikes  the

appropriate  balance  among  these  competing  concerns,  and  we

therefore adopt it.  We must accordingly reject Ruckles  argument

that  she  was  entitled  to file her amended  complaint  without

seeking leave of the court.

     C.   The Superior Court Erred in Denying Ruckle Leave To File an
          Amended Complaint.
          
          Ruckle sought to file an amended complaint in order  to

demonstrate  an alternate basis for asserting standing.   In  her

amended complaint, she alleged:

               Ruckle has standing to bring this action

          because she is the mother of two children who

          attend  schools  operated by  the  ASD.   Her

          oldest  child  currently rides  school  buses

          contracted for by the ASD, the younger  child

               will  do so next year.  She has suffered

          injury  to cognizable interests by  the  acts

          and  omissions  of the ASD and Department  as

          alleged  herein, including, but  not  limited

          to, the facts that the ASD awarded the school

          bus  contract to a proposer which  failed  to

          comply  with  the requirements of RFP2000-605

          Request  for Pupil Transportation  Proposals,

          especially  those  relating  to  safety,  and

          because  that  award  was  not  in  the  best

          interests of the user population.

The superior court did not explain why it denied Ruckle leave  to

amend  her  complaint.  Ruckle argues that  this  denial  without

explanation  constitutes  an  abuse  of  discretion.   Absent   a

determination  that amendment would be futile, Ruckle  maintains,

the  superior court should have granted her the leave it  assumed

she had requested.34

          We have long held that leave to amend a pleading should

be  freely  given and that, absent a showing that  the  amendment

would have resulted in injustice, a trial court will be found  to

have  abused  its discretion in denying a motion to amend.35   In

Betz  v.  Chena Hot Springs Group,36 we endorsed the reasons  set

forth by the United States Supreme Court in Foman v. Davis37  for

denying  the amendment of a complaint.  Specifically,  the  Foman

Court instructed that:

          If  the  underlying  facts  or  circumstances
          relied  upon by a plaintiff may be  a  proper
          subject of relief, he ought to be afforded an
          opportunity to test his claim on the  merits.
          In  the  absence of any apparent or  declared
          reason   such  as undue delay, bad  faith  or
          dilatory  motive on the part of  the  movant,
          repeated  failure  to  cure  deficiencies  by
          amendments    previously    allowed,    undue
          prejudice to the opposing party by virtue  of
          allowance  of  the  amendment,  futility   of
          amendment, etc.  the leave sought should,  as
          the rules require, be freely given.[38]
          
          ASD  focuses  its argument on the alleged  futility  of

          amendment, maintaining that Ruckle should not be permitted to

amend  her  complaint because her allegations of  interest-injury

standing are too generalized to survive a motion to dismiss.   In

response,  Ruckle  maintains that she has  set  forth  sufficient

facts to survive a motion to dismiss.  As Ruckle explains:

          Ruckles   cognizable  interest  is  that   of

          assuring the safety of her children  as  they

          ride  transportation provided by the  ASD  to

          and  from  school each day.  The  injury  she

          suffered was the reasonable apprehension that

          her daughter was being placed at risk because

          the ASD awarded the school bus contract to  a

          proposer,  First  Student,  which  failed  to

          comply with numerous requirements of the RFP,

          most  particularly those relating to  safety.

          The  fact  that her daughter was subsequently

          involved   in   two   separate   school   bus

          accidents, sustaining injuries in the second,

          only reinforced the reasonableness of Ruckles

          apprehensions.  The relief Ruckle  sought,  a

          declaration voiding the contract  awarded  by

          the   ASD  to  First  Student,  would   fully

          remediate   the   injury  she   suffered   by

          eliminating  the risk that her children  will

          continue to be transported to and from school

          by  a  contractor which failed  to  meet  the

          minimum    safety    and    other    operator

          requirements set forth in the RFP.

(Emphasis in original, footnote and citations omitted.)

          Our   jurisprudence   has  recognized   interest-injury

standing in a variety of contexts.  In Moore v. State,39  we  set

out our expansive interpretation of standing:

          Whether  a  party  has  standing  to   obtain
          judicial resolution of a controversy  depends
          on   whether   the  party  has  a  sufficient
          personal   stake  in  the  outcome   of   the
          controversy.   In  our  recent  decision   of
          Wagstaff  v. Superior Court, Family Division,
          535   P.2d  1220,  1225  (Alaska  1975),   we
          described this requirement in terms of injury-
          in-fact, and explained that its purpose is to
          assure the adversity which is fundamental  to
          judicial proceedings.[40]
          
At issue in Moore was whether a group of commercial fisherman and

the owner of a lodge could bring a challenge against the State of

Alaska  and  the  lessees  of tracts  in  or  near  Kachemak  Bay

regarding  the legality of the sale of certain offshore  oil  and

gas  leases in the bay.41  While defendants maintained  that  the

plaintiffs  interest  in the transaction in question  was  merely

incidental or indirect, the plaintiffs argued that they would  be

adversely affected by oil exploration in the bay.42  Agreeing with

the  plaintiffs,  we  determined  that,  because  the  plaintiffs

livelihoods depended on the biological productivity of  the  bay,

they  did in fact have a sufficient interest in the sale  of  the

leases to establish standing.43

          In Johns v. Commercial Fisheries Entry Commission,44 we

considered  whether a group of fisherman who  made  their  living

seining  for  bait  and  roe herring in  Southeast  Alaska  could

challenge  a  regulation limiting the maximum number  of  limited

entry  permits  the Commercial Fisheries Entry Commission  (CFEC)

would  issue.45   The  CFEC claimed that the plaintiffs  had  not

established standing to bring such a challenge since  they  could

not point to any actual or inevitable injury suffered as a result

of the maximum number regulation.46  Because the question whether

each  plaintiff would receive a permit was unresolved,  and  each

plaintiff retained an interim use permit at the time the suit was

filed, the CFEC argued that the plaintiffs might never suffer any

injury because of the regulation.47  Plaintiffs countered that the

threatened loss of their right to enter the fishery constituted a

sufficient  injury  to justify standing.48  Explaining  that  [a]

party  need  not wait for anticipated harm to materialize  before

bringing an action to protect his rights, we endorsed the finding

          of standing based on anticipated future harm.49  To instead adopt

a rule of inevitability, as urged by the CFEC,

          would  establish  an unwarranted  distinction
          between   possible  and  certain   harm   for
          purposes of determining standing; such a rule
          would  deny  standing to  parties  who  could
          demonstrate   at   the   filing   only    the
          possibility  of harm.  That approach  is  not
          consonant with the thrust of Alaska law.   We
          think it bad law and bad policy to approve  a
          rule  which shuts the courthouse doors until,
          in  certain situations, it may be too late to
          obtain meaningful judicial relief.[50]
          
          We  echoed  these sentiments in Trustees for Alaska  v.

State,51  in which we observed that the adverse interest required

to establish interest-injury standing

          may  be  economic, or it may  be  intangible,
          such   as   an   aesthetic  or  environmental
          interest.   The  degree  of  injury  to   the
          interest need not be great;  [t]he basic idea
          .  .  .  is  that an identifiable  trifle  is
          enough  for standing to fight out a  question
          of  principle;  the trifle is the  basis  for
          standing  and  the  principle  supplies   the
          motivation. [52]
          
          Based on the expansive definition of adversity set  out

in  earlier  cases, we agree with Ruckle that  amendment  of  her

complaint in this case would not be futile.  Ruckle alleged  that

she  has  two  children  who are or will be  attending  Anchorage

schools  and  riding  the  buses of the  transportation  provider

selected  by ASD.  Ruckle therefore has an interest in  who  that

provider   is.   She  also  alleged  that  the  selected   school

transportation  provider, First Student,  failed  to  provide  an

outline  of its accident prevention program, as required  by  the

RFP.   While Ruckle may never suffer injury as the result of ASDs

selection, the possibility that she might, in the form of harm to

her children, and the possibility that ASDs selection process may

have eliminated a safer transportation option, are of interest to

Ruckle.   Because  her allegations do not on  their  face  appear

futile,  we  believe the superior court abused its discretion  in

denying  Ruckle  leave  to  amend her  complaint.   We  therefore

          reverse the courts decision and remand for Ruckles amended

complaint to be reinstated.53

     D.   Remaining Issues
          
          A.   Ruckle also maintains that the superior court erred in

dismissing  her complaint with prejudice, since a  dismissal  for

lack  of  subject matter jurisdiction is not a dismissal  on  the

merits and therefore does not act as a bar to a subsequent action

on  the  same  issue.  Because we remand for the court  to  grant

Ruckle leave to file an amended complaint, we find it unnecessary

to resolve this question.

          Finally, in response to concerns raised by ASD and  the

state  during the course of this case, we note that the  superior

court  may  consider other means of approaching this  litigation.

For  example,  the court might choose to authorize  discovery  on

ASDs  stalking horse theory, consolidate Ruckles claims with  the

Laidlaw  litigation,  or  stay the present  case  until  Laidlaws

claims have been resolved.  We recognize that such decisions  lie

within  the  discretion  of the superior  court  and,  therefore,

express  no  opinion as to which alternative approach  the  court

ought to follow, if any.

V.   CONCLUSION

          Because we agree that a more appropriate plaintiff  has
already  challenged ASDs actions, we AFFIRM the decision  of  the
superior  court to dismiss Ruckles complaint against ASD inasmuch
as  it  was  based on citizen-taxpayer standing.  We  AFFIRM  the
superior  courts  determination that Ruckle was not  entitled  to
amend  her  complaint  without  leave  of  the  court  after  the
complaint had been dismissed, but we REVERSE the courts denial of
leave to amend a complaint alleging interest-injury standing.  We
REMAND for further proceedings consistent with this opinion.
_______________________________
     1     Ruckle claims that First Students bid was missing  the
following items:

          1.   Acknowledgments of Addenda 1-5.
          2.   A signed Non-Collusion Affidavit and nondiscrimination
               statement.
          3.   The names and resumes of persons who would be primarily
               responsible for managing the pupil transportation services.
          4.   Certifications that arrangements had been made for the
               purchase, lease, or rent of facilities necessary to provide pupil
               transportation services, that necessary financing was available
               and that necessary facilities would be available in time to
               perform the contract.
          5.   Samples of the driver route notebook for regular and Special
               Education routes, the driver and attendant policy manual, and the
               dispatch procedure manual.
          6.   Job descriptions for all positions required under the
               contract and estimated amounts of time operations personnel would
               spend on each job function, including any responsibilities not
               directly related to providing service under the contract.
          7.   An outline of the First Students accident prevention program
               tailored to driving conditions encountered in Anchorage, Alaska.
          8.   The wage and benefit scale to be applied to drivers and
               attendants.
               
     2    See Laidlaw Transit, Inc. v. Anchorage Sch. Dist., Case
No. 3AN-01-04545 CI.

     3     4 AAC 27.085 provides the requirements for competitive
pupil transportation proposals and, among other things, lists the
criteria  that  must be contained in requests for proposals,  the
procedures  districts shall use in the certification process  and
selection  of  a proposer, and the circumstances  under  which  a
proposer   may   move   for   reconsideration   of   the   boards
determination.

     4     Alaska  Civil Rule 12(b)(1) sets out the procedure  by
which  a  party may request dismissal for lack of subject  matter
jurisdiction.

     5     Andrews  v.  Alaska  Operating Engineers  -  Employers
Training Trust Fund, 871 P.2d 1142, 1144 (Alaska 1994).

     6     Jackson  v.  Power, 743 P.2d 1376, 1379,  n.5  (Alaska
1987) (citation omitted) (quoting Guin v. Ha, 591 P.2d 1281, 1284
n.6 (Alaska 1979)).

     7     Betz  v. Chena Hot Springs Group, 742 P.2d 1346,  1348
(Alaska 1987).

     8    DeSalvo v. Bryant, 42 P.3d 525, 527 (Alaska 2002).

     9     Id.  at  527-28 (quoting Peter Pan Seafoods,  Inc.  v.
Stepanoff, 650 P.2d 375, 378-79 (Alaska 1982)).

     10     Under  AS  22.10.020(c), superior  courts  may  issue
injunctions  and  all  other writs necessary  or  proper  to  the
complete   exercise   of   its  jurisdiction.    Alaska   Statute
22.10.020(g) provides:

          In  case  of  an  actual controversy  in  the
          state, the superior court, upon the filing of
          an  appropriate  pleading,  may  declare  the
          rights  and  legal relations of an interested
          party seeking the declaration, whether or not
          further  relief is or could be  sought.   The
          declaration  has the force and  effect  of  a
          final judgment or decree and is reviewable as
          such.   Further  necessary or  proper  relief
          based on a declaratory judgment or decree may
          be   granted,  after  reasonable  notice  and
          hearing,  against  an  adverse  party   whose
          rights have been determined by the judgment.
          
     11    Jefferson v. Asplund, 458 P.2d 995, 999 (Alaska 1969).

     12    Bowers Office Prods., Inc. v. Univ. of Alaska, 755 P.2d
1095, 1096 (Alaska 1988).

     13    Trustees for Alaska v. State, 736 P.2d 324, 327 (Alaska
1987) (citation omitted).

     14    Id.

     15    Id. at 329.

     16     Baxley  v.  State, 958 P.2d 422,  428  (Alaska  1998)
(citing Trustees for Alaska v. State, 736 P.2d at 329-30).

     17    753 P.2d 1132 (Alaska 1988).

     18     Id.  at  1135-36 (quoting Gostovich v. City  of  West
Richland,  452  P.2d  737,  740  (Wash.  1969))  (alterations  in
original).   See also Aloha Lumber Corp. v. Univ. of Alaska,  994
P.2d 991, 998 (Alaska 1999).

     19    See, e.g., Ewy v. Sturtevant, 962 P.2d 991, 995 (Colo.
App.  1998) (stating that [t]he public bidding process,  however,
is  for the protection of the public, not the bidders and as such
bidders[] have no standing to challenge the propriety of an award
of  a  public contract to another bidder); Black Ash Servs., Inc.
v.  DuBois  Area  Sch. Dist., 764 A.2d 672, 674 (Pa.  Commw.  Ct.
2000) (holding that mere disappointed bidder to a public contract
does  not have standing to challenge its award and requiring that
[t]o  have standing, the bidder must be an aggrieved taxpayer  of
the  municipality  awarding the contract); On-Point  Tech.  Sys.,
Inc.  v.  Commonwealth, 753 A.2d 911, 914 (Pa. Commw.  Ct.  2000)
(distinguishing  between action brought  by  disappointed  bidder
against state under Procurement Code and one filed by taxpayer in
equity);   Sloan  v. Sch. Dist., 537 S.E.2d 299, 303  (S.C.  App.
2000)  (stating that [t]he taxpayers of Greenville County have  a
direct  interest in the proper use and allocation of tax receipts
by the District and therefore may challenge the Districts failure
to  abide by the competitive sealed bidding requirements  in  its
procurement code).

     20    See Ewy, 962 P.2d at 995 (noting that Colorado law does
not provide bidders, as bidders, with standing to challenge award
of  public  contract to another bidder); Black Ash Servs.,  Inc.,
764 A.2d at 674 (observing that to have standing in Pennsylvania,
bidder must be municipal taxpayer).

     21    See Lower Kuskokwim Sch. Dist. v. Found. Servs., Inc.,
909  P.2d  1383,  1384  (Alaska 1996) (considering  challenge  by
unsuccessful bidder for school transportation contract); King  v.
Alaska  State  Hous.  Auth.,  633 P.2d  256,  263  (Alaska  1981)
(holding  that  government agency enters  implied  contract  with
bidder  to consider bids honestly and fairly and that bidder  may
sue to enforce this contract).

     22    4 AAC 27.085(e) outlines the procedures to be used by a
school   district  in  certifying  bids  for  competitive   pupil
transportation  proposals as responsive or nonresponsive  to  the
request  for  proposals.  Under subsection (5), a proposer  whose
proposal was certified as nonresponsive may petition the board in
writing for reconsideration.

     23    4 AAC 27.085(g) provides:

          Within   five  working  days  following   the
          district school boards offering a contract, a
          proposer whose proposal was not accepted  may
          petition   the   board,   in   writing,   for
          reconsideration of its action.  Petitions for
          reconsideration are limited to the  following
          grounds,  which must be specified: (1)  fraud
          or  duress by the district school board or  a
          proposer; or (2) error of the district school
          board  in  calculating dollar  amounts.   The
          aggrieved proposer shall deliver the petition
          to  all other proposers.  The district school
          board  shall  decide the scope and  form  the
          reconsideration  will take, except  that  all
          responsive  proposers  must  be   given   the
          opportunity to be heard on the petition.
          
     24     See  also Lower Kuskokwim Sch. Dist., 909  P.2d  1383
(Alaska  1996) (concerning appeal of school boards transportation
contract).

     25    Civil Rule 15(a) provides in relevant part:

          A party may amend the partys pleading once as
          a  matter  of  course at any  time  before  a
          responsive  pleading is  served  or,  if  the
          pleading   is  one  to  which  no  responsive
          pleading is permitted and the action has  not
          been  placed  upon  the trial  calendar,  the
          party  may so amend it at any time within  20
          days  after it is served.  Otherwise a  party
          may  amend the partys pleading only by  leave
          of court or by written consent of the adverse
          party;  and leave shall be freely given  when
          justice so requires.
          
     26     In  her opposition to ASDs motion to dismiss,  Ruckle
stated in a footnote that, should the court fail to find that she
had  established citizen-taxpayer standing, she was reserving her
right  to  amend  her  complaint  to  allege  facts  showing  the
necessary foundation for interest-injury standing.  Ruckle  again
noted  her  intention  to file an amended  complaint  during  the
hearing  on the motion to dismiss.  In the superior courts  order
dismissing   Ruckles  complaint  for  lack  of   subject   matter
jurisdiction, the court noted that Ruckle had reserved her  right
to amend her complaint at a later point in time.

     27    194 F.R.D. 223, 229-31 (E.D. Pa. 2000).

     28     Id. at 229 (citing Mayes v. Leipzinger, 729 F.2d 605,
607  (9th  Cir. 1984); Wood v. Santa Barbara Chamber of Commerce,
Inc., 705 F.2d 1515, 1520 (9th Cir. 1983)).

     29    Id. at 229.

     30    Id. at 229-30 (citing Brever v. Rockwell Intl Corp., 40
F.3d   1119,   1131  (10th  Cir.  1994);  Acevedo-Villalobos   v.
Hernandez,  22  F.3d  384 (1st Cir. 1994); Whitaker  v.  City  of
Houston,  Tex., 963 F.2d 831, 835 (5th Cir. 1992); Dorn v.  State
Bank  of Stella, 767 F.2d 442, 443 (8th Cir. 1985); Czeremcha  v.
Intl  Assn  of Machinists and Aerospace Workers, 724  F.2d  1552,
1556 (11th Cir. 1984);  Elfenbein v. Gulf & Western Indus., Inc.,
590 F.2d 445, 448 n.1 (2d Cir. 1978)).

     31    Id. at 230-31.

     32    Id. at 231 (citing Camp v. Gregory, 67 F.3d 1286, 1289
(7th  Cir. 1995); Worldwide Church of God, Inc. v. State of Cal.,
623 F.2d 613, 616 (9th Cir. 1980)).

     33     See, e.g., Estate of Thompson v. Mercedes-Benz, Inc.,
514 P.2d 1269, 1271 (Alaska 1973).

     34    Judge Rindner stated in his order that he would proceed
as   though  Ruckle  had  requested  leave  to  file  an  amended
complaint.

     35    Estate of Thompson, 514 P.2d at 1271 (determining that
trial court erred in denying leave to amend where there had  been
no showing of injustice by opposing party).

     36    742 P.2d 1346, 1348 (Alaska 1987).

     37    371 U.S. 178 (1962).

     38    Id. at 182.

     39    553 P.2d 8 (Alaska 1976).

     40    Id. at 23 (citation omitted).

     41    Id. at 14.

     42    Id. at 23-24.

     43    Id. at 24-25.

     44    699 P.2d 334 (Alaska 1985).

     45    Id. at 335-36.

     46    Id. at 336-38.

     47    Id. at 337.

     48    Id.

     49    Id. at 338.

     50    Id.

     51    736 P.2d 324 (Alaska 1987).

     52      Id.  at  327  (citations  omitted)  (alterations  in
original).

     53     This conclusion makes it unnecessary to reach Ruckles
contention that the superior court erred in dismissing  for  lack
of  citizen-taxpayer  standing her  original  claim  against  the
state.  The amended complaint alleges interest-injury standing as
to  both  the  school  district and the state.   Because  Ruckles
allegations   in   the  amended  complaint  are   sufficient   to
demonstrate  her standing as to the state, it is unnecessary  for
us to consider whether the first complaint was sufficient in that
regard.