Motion to Dismiss

IN THE DISTRICT COURT OF [____________________] COUNTY, NEBRASKA

[PLAINTIFF'S FULL NAME],

    Plaintiff,

v.                                            Case No. [____________________]

[DEFENDANT'S FULL NAME],

    Defendant.

DEFENDANT'S MOTION TO DISMISS

[DEFENDANT'S FULL NAME] ("Defendant"), by and through undersigned counsel, respectfully moves this Court pursuant to Neb. Ct. R. Pldg. § 6-1112(b) (effective January 1, 2025) to dismiss the Complaint filed by [PLAINTIFF'S FULL NAME] ("Plaintiff"), with prejudice, on the grounds set forth below. In support thereof, Defendant states as follows:

I. PROCEDURAL BACKGROUND

1. Plaintiff filed the Complaint in this action on [__/__/____].

2. Defendant was served with the Summons and Complaint on [__/__/____].

3. This Motion is timely filed. Under Neb. Ct. R. Pldg. § 6-1112(b), a pre-answer motion raising any defense listed in § 6-1112(b) must be filed before or simultaneously with any other § 6-1112(b) defenses. Defendant has not previously filed any pre-answer motions in this action and hereby asserts all available § 6-1112(b) defenses.

4. Pursuant to § 6-1112(b), if a party omits a defense or objection available at the time of filing a motion, the party may not file a second pre-answer motion to raise the omitted defense. Defendant therefore raises all applicable grounds herein.

II. GROUNDS FOR DISMISSAL

Defendant moves to dismiss the Complaint on the following grounds (check all that apply):

☐ Ground 1 — Lack of Subject Matter Jurisdiction [§ 6-1112(b)(1)]
The Court lacks subject matter jurisdiction over the claims asserted in the Complaint because [________________________________].

☐ Ground 2 — Lack of Personal Jurisdiction [§ 6-1112(b)(2)]
The Court lacks personal jurisdiction over Defendant because [________________________________]. Defendant is not a resident of Nebraska, has insufficient minimum contacts with Nebraska, and/or service of process was defective.

☐ Ground 3 — Improper Venue [§ 6-1112(b)(3)]
Venue is improper in [____________________] County because [________________________________]. The proper venue is [____________________] County pursuant to Neb. Rev. Stat. § 25-401 et seq.

☐ Ground 4 — Insufficiency of Process [§ 6-1112(b)(4)]
The process served upon Defendant was insufficient because [________________________________], in violation of Neb. Rev. Stat. § 25-501 et seq.

☐ Ground 5 — Insufficiency of Service of Process [§ 6-1112(b)(5)]
Service of process was insufficient because [________________________________], in violation of Neb. Rev. Stat. § 25-508.01 et seq.

☐ Ground 6 — Failure to State a Claim Upon Which Relief Can Be Granted [§ 6-1112(b)(6)]
The Complaint fails to state a claim upon which relief can be granted. Under Nebraska's pleading standard, as adopted effective January 1, 2025, a plaintiff must allege sufficient facts, accepted as true, to state a claim for relief that is plausible on its face. The Complaint fails to meet this standard because [________________________________].

☐ Ground 7 — Failure to Join an Indispensable Party [§ 6-1112(b)(7)]
The Complaint fails to join a party under Neb. Ct. R. Pldg. § 6-1119, specifically [________________________________], whose absence prevents complete relief and/or whose interests may be prejudiced.

III. STATEMENT OF FACTS

5. [Describe the relevant factual background, including key dates, parties, and events. Reference specific allegations in the Complaint by paragraph number.]

6. Plaintiff alleges in the Complaint that [________________________________].

7. Plaintiff further alleges [________________________________].

8. The Complaint was filed in [____________________] County District Court, docketed as Case No. [____________________].

9. [Continue with additional factual paragraphs as needed.]

IV. MEMORANDUM OF LAW

A. Nebraska's Pleading Standard (Post-January 1, 2025)

Nebraska adopted a revised pleading standard under Neb. Ct. R. Pldg. § 6-1112(b)(6), effective January 1, 2025. To survive a motion to dismiss under § 6-1112(b)(6), a plaintiff must allege sufficient facts, accepted as true, to state a claim for relief that is plausible on its face. This standard mirrors the federal plausibility standard adopted in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). The Nebraska Supreme Court reviews a district court's grant of a motion to dismiss for failure to state a claim de novo, accepting all allegations as true and drawing all reasonable inferences in favor of the non-moving party.

While a court accepts factual allegations as true, it is not required to accept legal conclusions couched as factual allegations. A complaint that offers mere labels, conclusions, or formulaic recitation of elements of a cause of action does not suffice. The complaint must allege more than a sheer possibility that a defendant acted unlawfully.

B. Lack of Subject Matter Jurisdiction [§ 6-1112(b)(1)]

(Include if Ground 1 is checked)

Subject matter jurisdiction is a threshold issue that may be raised at any time, including by motion before answer. Nebraska district courts are courts of general jurisdiction but lack subject matter jurisdiction when [________________________________]. A court without subject matter jurisdiction cannot adjudicate the matter and must dismiss the action. See Neb. Rev. Stat. § 24-302.

In this case, this Court lacks subject matter jurisdiction because [________________________________]. Specifically, [________________________________].

C. Lack of Personal Jurisdiction [§ 6-1112(b)(2)]

(Include if Ground 2 is checked)

For a Nebraska court to exercise personal jurisdiction over a non-resident defendant, the defendant must have sufficient "minimum contacts" with Nebraska such that the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice. International Shoe Co. v. Washington, 326 U.S. 310 (1945). Nebraska's long-arm statute, Neb. Rev. Stat. § 25-536, extends jurisdiction to the limits of due process.

Defendant lacks the requisite minimum contacts with Nebraska because [________________________________]. Defendant does not reside in Nebraska, does not conduct business in Nebraska, and the claims at issue did not arise from any activity in Nebraska. Exercising jurisdiction here would violate due process.

D. Improper Venue [§ 6-1112(b)(3)]

(Include if Ground 3 is checked)

Venue in Nebraska civil actions is governed by Neb. Rev. Stat. §§ 25-401 through 25-413. Venue is proper in the county where the defendant resides, where the cause of action arose, or where the contract was to be performed, depending on the nature of the claim. See Neb. Rev. Stat. § 25-401.

In this case, venue is improper in [____________________] County because [________________________________]. The action should be transferred to [____________________] County, where [________________________________].

E. Insufficiency of Process / Service of Process [§ 6-1112(b)(4)-(5)]

(Include if Ground 4 or 5 is checked)

Nebraska law requires that process be served in the manner specified by statute. Neb. Rev. Stat. §§ 25-501 through 25-521 govern the requirements for proper service of process. Service on a corporation requires delivery to an officer, managing agent, or registered agent. See Neb. Rev. Stat. § 25-509.01.

In this case, service was defective because [________________________________]. As a result, this Court has not acquired personal jurisdiction over Defendant through proper service, and the Complaint should be dismissed.

F. Failure to State a Claim — Substantive Analysis [§ 6-1112(b)(6)]

(Include if Ground 6 is checked)

1. Applicable Legal Standard

As noted above, under the post-2025 Nebraska standard, the Complaint must allege facts sufficient to make the claim plausible on its face. Neb. Ct. R. Pldg. § 6-1112(b)(6). Courts are not required to accept legal conclusions, threadbare recitals of elements, or speculative allegations. The Complaint must allege enough factual content to allow the court to draw the reasonable inference that Defendant is liable for the misconduct alleged.

2. Count [____] — [Name of Claim] Fails to State a Claim

Plaintiff's [first/second/etc.] claim for [________________________________] fails because [________________________________]. Specifically:

a. The Complaint alleges [________________________________] (Complaint ¶ [____]), but this allegation is [conclusory / insufficient / contradicted by the documents attached to the Complaint].

b. To state a claim for [________________________________] under Nebraska law, a plaintiff must allege [________________________________]. See [Nebraska case citation].

c. The Complaint does not allege [________________________________], which is a required element of this claim.

d. Even accepting all factual allegations as true, the Complaint does not plausibly support liability because [________________________________].

3. Count [____] — [Name of Additional Claim] Also Fails

[Repeat analysis for each additional claim in the Complaint.]

G. Failure to Join an Indispensable Party [§ 6-1112(b)(7)]

(Include if Ground 7 is checked)

Under Neb. Ct. R. Pldg. § 6-1119, a party is required to be joined if:
(1) in the party's absence, complete relief cannot be accorded among those already parties; or
(2) the party claims an interest relating to the subject of the action and disposing of the action without the party may impair or impede the party's ability to protect that interest, or leave existing parties subject to inconsistent obligations.

[________________________________] is a necessary and indispensable party because [________________________________]. Complete relief cannot be granted without [________________________________]'s participation, and this action should be dismissed for failure to join this party. See Neb. Ct. R. Pldg. § 6-1119(b).

V. CONSOLIDATION OF DEFENSES

Pursuant to Neb. Ct. R. Pldg. § 6-1112(g), a party who makes a motion under this rule must join all motions available under the rule. Defendant has done so herein, raising all available § 6-1112(b) defenses in this single motion. Defendant expressly preserves the right to assert in the answer any defense not waived by failing to present it by motion.

VI. NEBRASKA FILING AND PROCEDURAL NOTES

• E-Filing: This motion is filed through Nebraska's JUSTICE electronic filing system. All filers in Nebraska district courts must comply with Nebraska Supreme Court Rules on electronic filing. See Neb. Ct. R. § 6-1506.
• Answer Deadline: Under Neb. Ct. R. Pldg. § 6-1112(a), a defendant must serve an answer within 30 days after service of the summons and complaint, unless a motion under § 6-1112(b) is filed, in which case the answer deadline is stayed pending the court's ruling.
• Brief Requirement: Most Nebraska district courts require a supporting brief (memorandum of law) to be filed simultaneously with the motion or within the time allowed by local rule. Counsel should consult the local rules for the specific judicial district.
• Hearing: Upon request, a hearing on the motion to dismiss shall be scheduled as soon as practicable. Absent a request, courts may decide the motion on the briefs.
• Page/Word Limits: Consult the local rules for the applicable judicial district for any page limits on supporting briefs. Nebraska does not impose a statewide page limit by Supreme Court rule for district court motions.

VII. PRAYER FOR RELIEF

WHEREFORE, Defendant respectfully requests that this Court:

1. Grant Defendant's Motion to Dismiss and dismiss Plaintiff's Complaint in its entirety, with prejudice;

2. Alternatively, dismiss the specific claims identified above and require Plaintiff to replead with sufficient factual allegations;

3. Award Defendant costs and reasonable attorneys' fees to the extent authorized by law or equity;

4. Grant such other and further relief as the Court deems just and proper.

Respectfully submitted,

[LAW FIRM NAME]

By: [________________________________]
    [Attorney's Full Name]
    Nebraska Bar No. [____________________]
    [Firm Address Line 1]
    [City], Nebraska [____]
    Telephone: ([____]) [____]-[________]
    Facsimile: ([____]) [____]-[________]
    Email: [________________________________]

Attorney for Defendant [____________________]

Dated: [__/__/____]

CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], I caused a true and correct copy of the foregoing Defendant's Motion to Dismiss and accompanying Memorandum of Law to be served upon the following counsel of record via the Nebraska JUSTICE electronic filing system, which will send electronic notice of filing to all registered participants:

Counsel for Plaintiff:
[Attorney's Full Name]
[Firm Name]
[Address]
[City], Nebraska [____]
Email: [________________________________]

☐ Via Nebraska JUSTICE E-Filing (electronic service)
☐ Via United States Mail, First-Class, postage prepaid
☐ Via Email (with consent)
☐ Via Hand Delivery

[________________________________]
[Attorney's Name]

EXHIBIT LIST

NEBRASKA-SPECIFIC NOTES FOR COUNSEL

Key Procedural Points — Nebraska District Court

1. Consolidated Motion Requirement: Under § 6-1112(g) (eff. Jan. 1, 2025), all available § 6-1112(b) defenses must be raised in a single pre-answer motion. Failure to include an available defense results in waiver of that defense.

2. Waivable vs. Non-Waivable Defenses:
   - Waivable (must raise by motion or answer or waived): Personal jurisdiction (§ 6-1112(b)(2)), venue (§ 6-1112(b)(3)), insufficiency of process (§ 6-1112(b)(4)), insufficiency of service of process (§ 6-1112(b)(5))
   - Non-Waivable (may be raised at any time): Subject matter jurisdiction (§ 6-1112(b)(1)), failure to state a claim (§ 6-1112(b)(6)), failure to join indispensable party (§ 6-1112(b)(7))

3. Post-2025 Plausibility Standard: Nebraska's 2025 amendment to § 6-1112(b)(6) adopted a plausibility-based pleading standard. Counsel should distinguish Nebraska's new standard from the pre-2025 notice pleading standard when citing older cases.

4. Nebraska Pleading Rules: Nebraska's rules of pleading (Article 11 of Chapter 6) are modeled on the federal rules. Cross-reference to federal authority is often persuasive but not binding.

5. Local District Rules: Each of Nebraska's 12 judicial districts may have local rules governing motion practice, including deadlines for supporting briefs, page limits, and hearing procedures. Counsel must consult the local rules for the applicable district.

6. JUSTICE System: Nebraska's Judicial Unified State Technology Infrastructure for Courts and Employees (JUSTICE) handles electronic filing. All documents must comply with formatting requirements (PDF, font size, etc.) set by the Nebraska Supreme Court.

7. Appellate Review: Grant of § 6-1112(b)(6) motion is reviewed de novo on appeal. Nebraska Supreme Court accepts all alleged facts as true and draws all reasonable inferences in plaintiff's favor.

NEBRASKA STATUTES OF LIMITATIONS — QUICK REFERENCE

When raising a statute of limitations defense in the answer or by motion, counsel should identify the applicable limitations period. Common Nebraska limitations periods include:

Note: Nebraska's 2025 rule revisions did not alter the substantive limitations periods set by statute. Always verify the applicable period for the specific claim asserted.

NEBRASKA LONG-ARM STATUTE ANALYSIS

Nebraska's long-arm statute, Neb. Rev. Stat. § 25-536, provides that a court may exercise personal jurisdiction over a person who acts directly or by an agent as to:

1. Transacting any business in Nebraska;
2. Contracting to supply services or things in Nebraska;
3. Causing tortious injury by an act or omission in Nebraska;
4. Causing tortious injury in Nebraska by an act or omission outside Nebraska if the person regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in Nebraska;
5. Having an interest in, using, or possessing real property in Nebraska; or
6. Contracting to insure any person, property, or risk located within Nebraska at the time of contracting.

See Neb. Rev. Stat. § 25-536. Nebraska's long-arm statute is construed to extend jurisdiction to the fullest extent permitted by the Due Process Clause. Stucky v. Sunstone Hotel Investors, LLC, 280 Neb. 210 (2010).

When challenging personal jurisdiction, analyze whether any of the six predicates applies and, if so, whether the constitutional minimum contacts standard is satisfied. Both elements are required.

SOURCES AND REFERENCES

• Nebraska Judicial Branch, Article 11 — Nebraska Court Rules of Pleading in Civil Cases (eff. Jan. 1, 2025): https://nebraskajudicial.gov/supreme-court-rules/chapter-6-trial-courts/article-11-nebraska-court-rules-pleading-civil-cases-effective-january-1-2025/
• Neb. Ct. R. Pldg. § 6-1112: https://nebraskajudicial.gov/supreme-court-rules/chapter-6-trial-courts/article-11-nebraska-court-rules-pleading-civil-cases-effective-january-1-2025/%C2%A7-6-1112-defenses-and-objections-when-and-how-presented-pleading-or-motion-motion-judgment-pleadings
• Nebraska Legislature, Neb. Rev. Stat. § 25-1902: https://nebraskalegislature.gov/laws/statutes.php?statute=25-1902
• Nebraska JUSTICE E-Filing: https://www.nebraskajudicial.gov/efiling/
• Nebraska Legislature — Chapter 25 (Civil Procedure): https://nebraskalegislature.gov/laws/browse-chapters.php?chapter=25