“A motion seeking dismissal of a complaint for failure to state a causeof action should be granted only if it appears beyond doubt that the plaintiffcan prove no set of facts which would entitle him or her to relief. Well-pledfactual allegations in the complaint must be assumed to be true, and thecomplaint and all reasonable inferences arising therefrom must be construedmost favorably to the pleader.” (See Dennes v. Dunning (2006) 14 Neb.App. 934, 939; Westcott v. City of Omaha 901 F.2d 1486 (8th Cir. 1990).)
Prevailing on a Motion to Dismiss for Failure to State a Claim
“To prevail against a motion to dismiss for failure to state a claim,a plaintiff must allege sufficient facts to state a claim to relief that isplausible on its face.”(See Rosberg v. Kube, No. A-21-688, at *6 (Neb. Ct. App. June 21, 2022);Chaney v. Evnen (2020) 307 Neb. 512, 949 N.W.2d 761.)
“When reviewing anorder dismissing a complaint, an appellate court accepts as true all factswhich are well pled and the proper and reasonable inferences of law and factwhich may be drawn therefrom.” (See id.)
“In cases in which a plaintiff does not or cannot allege specific factsshowing a necessary element, the factual allegations, taken as true, arenonetheless plausible if they suggest the existence of the element and raise areasonable expectation that discovery will reveal evidence of the element orclaim.” (See Burklund v. Fuehrer (2018) 299 Neb. 949, 954.)
“When reviewing an order dismissing a complaint, an appellate courtaccepts as true all facts which are well pled and the proper and reasonableinferences of law and fact which may be drawn therefrom, but not theplaintiff's conclusion.”(See Chaney v. Evnen (2020) 307 Neb. 512, 520; Holloway v. State (2016) 293Neb. 12, 875 N.W.2d 435.)
“For purposes of a motion to dismiss, a court is not obliged to acceptas true a legal conclusion couched as a factual allegation, and threadbarerecitals of the elements of a cause of action, supported by mere conclusorystatements, do not suffice.” (See id.)
Rules for Filing a Motion to Dismiss for Failure to State a Claim
Section 6-1112 of the Nebraska Supreme Court Rules governs motions to dismiss.
“A defendant shall serve an answer within 30 days after being servedwith the summons and complaint or completion of service by publication.”(See Neb. Sup. Ct. R. 6-1112(a)(1).)
“A party served with a pleading stating a cross-claim against that partyshall serve an answer thereto within 30 days after being served. A plaintiffshall serve a reply to a counterclaim in the answer within 30 days after beingserved with the answer, or, if a reply is ordered by the court, within 15 daysafter service of the order, unless the order otherwise directs.” (SeeNeb. Sup. Ct. R. 6-1112(s)(2).)
“Every defense, in law or fact, to a claim for relief in anypleading, whether a claim, counterclaim, cross-claim, or third-party claim,shall be asserted in the responsive pleading thereto if one is required,except that the following defenses may at the option of the pleader be madeby motion… (6) that the pleading fails to state a claim upon whichrelief can be granted…”(See Neb. Sup. Ct. R. 6-1112(b)(6).)
Standard of Review in Deciding a Motion to Dismiss for Failure to State aClaim
“Whether a complaint fails to state a claim upon which relief may begranted is a question of law.”(See Rosberg v. Kube, No. A-21-688, at *6 (Neb. Ct. App. June 21, 2022); In reEstate of Ryan (2019) 302 Neb. 821, 925 N.W.2d 336 [a motion to dismiss forfailure to state a claim tests the legal sufficiency of the complaint, not theclaim's substantive merits].)
“The district court has authority to dismiss a complaint on its ownmotion where the complaint fails to state a claim.” (See id; Harper v.Clarke (2006) 14 Neb.App. 649, 713 N.W.2d 502.)
“An appellate court reviews de novo a lower court's dismissal of acomplaint for failure to state a claim.”(See Johnston v. Nebraska (2006) 270 Neb. 987, 989; Pogge v. American Fam.Mut. Ins. Co. (2004) 13 Neb. App. 63, 688 N.W.2d 634.)
“When analyzing a lower court's dismissal of a complaint for failure tostate a claim, an appellate court accepts the complaint's factual allegationsas true and construes them in the light most favorable to theplaintiff.” (See id.)
“A complaint will not be dismissed for failure to state a claim unlessit appears beyond doubt that the plaintiff can prove no set of facts thatwould demonstrate an entitlement to relief.” (See id.)
Notable Decisions Discussing a Motion to Dismiss for Failure to State a Claim
“Nebraska is a notice pleading jurisdiction. Civil actions are controlled by a liberal pleading regime; a party is only required to set forth a short and plain statement of the claim showing that the pleader is entitled to relief and is not required to plead legal theories or cite appropriate statutes so long as the pleading gives fair notice of the claims asserted.” (See Beekman v. Beekman (2022) 30 Neb. App. 676, 692; Burklund v. Fuehrer (2018) 299 Neb. 949, 911 N.W.2d 843.)
“The rationale for this liberal notice pleading standard in civil actions is that when a party has a valid claim, he or she should recover on it regardless of a failure to perceive the true basis of the claim at the pleading stage.” (See id.)
