IN THE DISTRICT COURT OF [COUNTY] COUNTY, NEBRASKA
[PLAINTIFF NAME], ) Case No. [__]
Plaintiff, )
)
v. ) MOTION TO DISMISS
) (Neb. Ct. R. Pldg. § 6-1112(b))
[DEFENDANT NAME], )
Defendant. )
)
MOTION TO DISMISS
Defendant [DEFENDANT NAME] (“Defendant”), by and through undersigned counsel, respectfully moves this Court, pursuant to Nebraska Court Rule of Pleading § 6-1112(b), to dismiss the [Complaint/Petition] filed by Plaintiff [PLAINTIFF NAME] (“Plaintiff”) on [FILING DATE]. Grounds for dismissal, which may be asserted singly or in the alternative, are as follows:
- Lack of subject-matter jurisdiction (§ 6-1112(b)(1));
- Lack of personal jurisdiction (§ 6-1112(b)(2));
- Improper venue (§ 6-1112(b)(3));
- Insufficiency of process (§ 6-1112(b)(4));
- Insufficiency of service of process (§ 6-1112(b)(5));
- Failure to state a claim upon which relief can be granted (§ 6-1112(b)(6)); and/or
- Failure to join an indispensable party (§ 6-1112(b)(7)).
Pursuant to Neb. Ct. R. Pldg. § 6-1112(d), Defendant expressly reserves the right to present any matters outside the pleadings; should such matters be presented, this Motion shall be treated as one for summary judgment under § 6-1112(b), and all parties shall be afforded a reasonable opportunity to present pertinent material.
[// GUIDANCE: Select only the subsections that actually apply to your facts and delete the rest. Nebraska requires specificity as to which § 6-1112(b) defenses are asserted.]
MEMORANDUM OF LAW IN SUPPORT
I. INTRODUCTION
Briefly summarize the nature of the dispute, the posture of the pleadings, and why dismissal is warranted.
II. FACTUAL BACKGROUND
Provide only those facts drawn from the Complaint (and any judicially noticeable materials) that are necessary for the Court to decide this Motion. Accept the well-pleaded allegations as true solely for purposes of the Motion.
III. APPLICABLE LEGAL STANDARD
A. Rule 12-type Standard
– Under Neb. Ct. R. Pldg. § 6-1112(b)(6), the Court tests the legal sufficiency of the complaint, viewed in the light most favorable to the non-movant, to determine whether a cognizable claim has been asserted.
B. Jurisdictional Defenses
– Burden shifts to Plaintiff once lack of jurisdiction is raised.
C. Service/Process Defenses
– Defendant bears initial burden of showing impropriety; burden then shifts.
IV. ARGUMENT
A. Count I Fails to State a Claim (Rule 12(b)(6))
1. Essential elements of [SPECIFY CLAIM] under Nebraska law.
2. Complaint’s factual allegations, even if true, do not satisfy element [X] because _.
B. Court Lacks Personal Jurisdiction (Rule 12(b)(2))
1. Nebraska’s long-arm statute, Neb. Rev. Stat. § 25-536, and Due Process analysis.
2. Plaintiff cannot establish minimum contacts.
C. Insufficiency of Service (Rule 12(b)(5))
1. Service attempted via _ was defective under Neb. Rev. Stat. § 25-505.01.
D. [Insert Additional Arguments as Needed]
V. CONCLUSION & PRAYER FOR RELIEF
WHEREFORE, Defendant respectfully requests that the Court:
1. Grant this Motion and dismiss Plaintiff’s [Complaint/Petition] in its entirety, with prejudice;
2. Tax costs against Plaintiff; and
3. Award such other and further relief as the Court deems just and proper.
NOTICE OF HEARING
PLEASE TAKE NOTICE that the undersigned has scheduled this Motion for hearing before the Honorable [JUDGE NAME] on the ___ day of __, 20, at : __.m., in Courtroom [NUMBER], [COUNTY] County District Court, [COURTHOUSE ADDRESS], [CITY], Nebraska, or at such other time and place as the Court may order.
[// GUIDANCE: Nebraska trial judges often require counsel to secure a hearing date through the Bailiff’s/Law Clerk’s office. Confirm local practice and include a separate “Notice” pleading if required.]
BRIEFING SCHEDULE
Pursuant to [LOCAL RULE OR SCHEDULING ORDER], opposing counsel shall file any brief in opposition within [] judicial days of service of this Motion and supporting brief. Defendant may file a reply brief within [] judicial days thereafter.
[// GUIDANCE: Many Nebraska District Courts default to a 10-day response / 5-day reply schedule unless otherwise ordered. Always verify the specific local rule or individual judge’s preferences.]
REQUEST FOR ORAL ARGUMENT
Defendant believes oral argument will materially assist the Court and therefore requests argument under Neb. Ct. R. Pldg. § 6-1112(d). If the Court determines oral argument is unnecessary, Defendant respectfully submits the matter on the papers.
CERTIFICATE OF SERVICE
I hereby certify that on this ___ day of __, 20, I electronically filed the foregoing Motion to Dismiss with the Clerk of the District Court using the Nebraska e-Filing System, which sent notice of such filing to all counsel of record. A copy was also served via [US Mail / hand-delivery / other] upon:
[NAME & ADDRESS OF OPPOSING COUNSEL]
/s/ _____
[ATTORNEY NAME] (# [NE BAR NO.])
[FIRM NAME]
[STREET ADDRESS]
[ CITY, STATE ZIP ]
[T] [PHONE] | [F] [FAX] | [E] [EMAIL]
Counsel for Defendant [DEFENDANT NAME]
END OF FILING
[// GUIDANCE:
1. Tailor the factual background and argument sections to the specific allegations in the operative pleading.
2. Attach a separate proposed Order if the assigned judge customarily requires one.
3. Confirm that all citations (statutory, rule, or otherwise) are correct and current as of the filing date.
4. Delete any bracketed material or sections that are not applicable to your case to avoid confusing the Court.
5. If any exhibits (e.g., affidavits regarding service) are necessary, reference and file them concurrently.
6. For multi-ground motions, consider including a Rule 12(f) motion to strike redundant, immaterial, or scandalous matter where appropriate.
7. Verify compliance with Nebraska Supreme Court e-Filing Technical Standards (Neb. Ct. R. § 6-401 et seq.), particularly PDF text-searchable requirements and page-limit rules for briefs.
]