Motions to Dismiss: Pleadings: Appeal and
Error. An appellate court reviews a district
court's order granting a motion to dismiss de novo,
accepting all allegations in the complaint as true and
drawing all reasonable inferences in favor of the nonmoving
Motions to Dismiss: Pleadings. To prevail
against a motion to dismiss for failure to state a claim, a
plaintiff must allege sufficient facts, accepted as true, to
state a claim to relief that is plausible on its face. In
cases in which a plaintiff does not or cannot allege specific
facts showing a necessary element, the factual allegations,
taken as true, are nonetheless plausible if they suggest the
existence of the element and raise a reasonable expectation
that discovery will reveal evidence of the element or claim.
Actions: Pleadings: Notice. 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
Actions: Pleadings. The rationale for a
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.
Political Subdivisions Tort Claims Act. The
Political Subdivisions Tort Claims Act specifically excludes
claims arising out of any interference with contract rights.
Property. A job is not the type of property
for which inverse condemnation claims can be brought.
Neb.App. 789] 7. Due Process: Public
Officers and Employees: Property: Contracts: Notice.
A public employee's due process rights arise from a
contractually created property right to continued employment.
A public employee with a property interest in his employment
has the right to due process of law, which requires that the
employee be provided with oral or written notice of the
charges against him, an explanation of the employer's
evidence, and an opportunity to explain his or her side of
Political Subdivisions Tort Claims Act:
Wages. A timely filing of a tort claim under the
Political Subdivisions Tort Claims Act, Neb. Rev. Stat.
§ 13-901 et seq. (Reissue 2012), is not sufficient to
satisfy the filing requirements of Neb. Rev. Stat. §
15-840 (Reissue 2012) for purposes of the application of the
Nebraska Wage Payment and Collection Act, because the two
underlying claims are separate and distinct.
from the District Court for Lancaster County: Andrew R.
Jacobsen, Judge. Affirmed in part, and in part reversed and
remanded for further proceedings.
K. Barber, of Barber & Barber, P.C., L.L.O., for
Jeffery R. Kirkpatrick, Lincoln City Attorney, and Don W.
Taute for appellees.
Pirtle, Bishop, and Arterburn, Judges.
Craw appeals from a district court order dismissing with
prejudice his amended complaint against the City of Lincoln,
Nebraska, and John and Jane Doe(s) 1 through 10, who were
"employees and/or agents of the City." (The City of
Lincoln and John and Jane Doe(s) 1 through 10 will
collectively be referred to as "the City.") We
affirm in part the district court's dismissal, and in
part reverse and remand for further proceedings.
October 30, 2013, Craw filed a complaint in the county court
for Lancaster County against the City alleging four [24
Neb.App. 790] causes of action related to his employment and
termination as the "PGA Professional for Holmes Golf
Course" in Lincoln. His first cause of action alleged as
follows: that he submitted a claim to the City pursuant to
the Political Subdivisions Tort Claims Act (PSTCA), Neb. Rev.
Stat. § 13-901 et seq. (Reissue 2012), and his claim was
denied; that "[d]uring the course of his work and
employment with the City, " Craw was "misclassified
as an independent contractor and was wrongfully terminated
from his position as the PGA Professional for the Holmes Golf
Course, the last engagement for which was to expire and/or be
ready for renewal on April 30, 2012, " and his last day
was October 30, 2011; that due to the City's negligence,
Craw was damaged; and that he incurred damages including (1)
past and future physical pain, mental suffering, and
emotional distress, (2) past and future inconvenience, (3)
damage to property, and (4) loss of use of property. His
second cause of action alleged that the City damaged his
property or property rights and deprived him of use of his
property, entitling him to compensation under Neb. Const,
art. I, § 21. His third cause of action alleged that he
was entitled to recovery for his property damage pursuant to
Neb. Rev. Stat. § 76-705 (Reissue 2009), because his
property was damaged for public use without a condemnation
proceeding. His fourth cause of action alleged
"violations of the rights guaranteed to him by the
Nebraska and United States Constitutions, by the statutes
of the State of Nebraska and of the United States of America,
all as regards civil rights and/ or discrimination."
28, 2014, the City filed a motion to dismiss Craw's
complaint pursuant to both Neb. Ct. R. Pldg. §
6-1112(b)(1) (lack of subject matter jurisdiction) and §
6-1112(b)(6) (failure to state claim upon which relief can be
form journal entry and order filed on June 27, 2014, the
county court granted the City's motion to dismiss. Craw
was granted 2 weeks to file an amended complaint or a motion
to transfer to the district court.
Neb.App. 791] On July 11, 2014, Craw, pursuant to Neb. Rev.
Stat. § 25-2706 (Reissue 2016), filed a request to
transfer the proceedings to the district court for Lancaster
County, because the "relief requested, at least in part,
is beyond the jurisdiction of [the county court] and
exclusively within the jurisdiction of the District
Court." The request for transfer motion was sustained on
July 15. The proceedings were certified and transferred to
the district court by the deputy clerk of the "Lancaster
County Court" on August 29.
September 23, 2014, the City filed a motion to dismiss
Craw's complaint in the district court pursuant to §
order filed on April 10, 2015, the district court granted the
City's motion to dismiss Craw's complaint. The
district court found that it lacked subject matter
jurisdiction over Craw's third cause of action (which the
court determined was a "statutory inverse condemnation
claim") because § 76-705 requires that such actions
be taken in the county court. The district court then found
that Craw failed to state a claim upon which relief could be
granted with regard to his first, second, and fourth causes
of action, as discussed next.
district court labeled Craw's first cause of action a
"tort claim"; however, the district court
"seriously questioned]" whether Craw had
"actually pled a tort claim as opposed to a claim based
on contract." It said:
The only well-pled factual allegation in the Complaint is
that [Craw's] engagement as the Holmes Golf Course PGA
Professional was terminated prior to the time it was set to
expire and/or be renewed. [Craw's] use of the term
"engagement" . . . suggests a contract-based claim.
However, [Craw] also seeks damages for physical pain, mental
suffering, and emotional distress, which suggest a tort
claim. As it stands, the scant factual allegations of the
Complaint are insufficient to allow the court to determine
the true nature of [Craw's] first cause of action.
Neb.App. 792] The district court found that the
"difficulty in determining the type of claim that is
actually pled" warranted dismissal without prejudice of
Craw's first cause of action.
district court described Craw's second cause of action as
a "constitutional inverse condemnation claim, " and
it found that "[a]s alleged, [Craw's] engagement as
the Holmes Park Golf Course PGA Professional is not the type
of vested property right for which [a constitutional] inverse
condemnation claim would lie" and such claim should be
Craw's fourth cause of action, the district court said
that it was "some sort of constitutional violation"
claim and that "[b]ecause [Craw] has not set forth any
facts as to what constitutional rights have been violated and
in what manner by [the City], " his conclusory
allegations were insufficient to state a plausible claim to
relief "[e]ven with ...