Michelle M. Hill, Appellant,
AMMC, Inc., doing business as Morrissey Motor Company, Appellee.
Motions to Dismiss: Summary Judgment:
Pleadings. When matters outside the pleadings are
presented to and not excluded by the court, a motion to
dismiss is treated as one for summary judgment.
Summary Judgment: Appeal and Error. An
appellate court will affirm a lower court's grant of
summary judgment if the pleadings and admitted evidence show
that there is no genuine issue as to any material fact or as
to the ultimate inferences that may be drawn from the facts
and that the moving party is entitled to judgment as a matter
Judgments: Claim Preclusion: Issue Preclusion: Appeal
and Error. The applicability of claim and issue
preclusion is a question of law. On a question of law, an
appellate court reaches a conclusion independent of the court
Judgments: Jurisdiction: Claim Preclusion.
Under Nebraska law, claim preclusion bars relitigation of any
right, fact, or matter directly addressed or necessarily
included in a former adjudication if (1) the former judgment
was rendered by a court of competent jurisdiction, (2) the
former judgment was a final judgment, (3) the former judgment
was on the merits, and (4) the same parties or their privies
were involved in both actions.
Judgments: Claim Preclusion: States: Courts.
A Nebraska state court must apply federal law to determine
the preclusive effect of a federal court judgment.
Judgments: Jurisdiction: Claim Preclusion: States:
Courts. For judgments in federal question
jurisdiction cases, federal claim preclusion law applies to
the analysis, but for judgments in federal diversity
jurisdiction cases, federal common law applies to the
preclusion analysis. Federal common law, in turn,
incorporates the rules of preclusion applied by state courts
in the state in which the federal diversity court sits.
Neb. 413] 7. Claim Preclusion: Final Orders: States:
Courts. Under federal law as stated by the U.S.
District Court for the District of Nebraska, claim preclusion
bars the relitigation of a claim if the prior judgment was a
final judgment on the merits rendered by a court of competent
jurisdiction and if the same cause of action and the same
parties or their privies were involved in both cases.
from the District Court for Lancaster County: Jodi L. Nelson,
Shiffermiller, of Shiffermiller Law Office, PC, L.L.O., for
S. Keith and Philip O. Cusic, of Engles, Ketcham, Olson &
Keith, PC, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Papik, JJ., and Welch, Judge.
Lancaster County District Court dismissed an action filed by
Michelle M. Hill, finding it was barred by the doctrine of
claim preclusion. Hill filed this timely appeal. We affirm.
Hill's 2016 Complaint
14, 2016, Hill filed a complaint in the district court for
Lancaster County against her former employer, AMMC, Inc.,
doing business as Morrissey Motor Company. The complaint
presented two claims: one alleging a violation of title VII
of the Civil Rights Act of 1964,  and the other alleging
"wrongful discharge ... in violation of Nebraska law and
to the factual allegations of Hill's complaint, she was
hired by AMMC in May 2014. AMMC sold motor vehicles, and Hill
alleged that during the course of her employment she was (1)
subjected to severe and pervasive sexual [300 Neb. 414]
comments by a coworker in violation of title VII and (2)
asked to physically alter customers' credit scores and
indicate to financing companies that vehicles subject to
purchase by AMMC customers were "fully loaded" when
the vehicles actually were not. The complaint alleged Hill
was constructively discharged in October 2014 when she
resigned rather than falsify records.
complaint alleged she had filed "charges" with both
the Nebraska Equal Opportunity Commission (NEOC) and the
federal Equal Employment Opportunity Commission (EEOC). The
complaint alleged the EEOC issued a right to sue letter on
July 6, 2016, but was silent as to any final action taken by
August 17, 2016, AMMC removed Hill's action to the U.S.
District Court for the District of Nebraska. After the action
was removed, AMMC filed a motion to dismiss Hill's state
law wrongful discharge claim, arguing it was time barred
under the statute of limitations in the Nebraska Fair
Employment Practice Act (NFEPA). Specifically, AMMC argued
Hill failed to file her state law claim within 90 days of the
NEOC's final action in the case. At the hearing on the motion
to dismiss, evidence was received without objection, so the
federal court treated the motion as one for partial summary
resisted the motion, arguing her state law claim was not
brought under the NFEPA, but instead was a common-law tort
claim subject to a 4-year statute of limitations. In an order
entered October 7, 2016, the federal court granted summary
judgment in favor of AMMC on Hill's state law wrongful
discharge claim, specifically finding the claim was governed
by the NFEPA and was not a general state law tort claim for
wrongful discharge. Hill's title VII claim remained
pending in the federal court.
Neb. 415] 2. Hill's 2017 Complaint
5 months later, on March 1, 2017, Hill filed the instant
complaint against AMMC in the district court for Lancaster
County. Her complaint alleged only one claim: that AMMC
wrongfully discharged Hill "in violation of Nebraska law
and public policy." The factual allegations regarding
wrongful discharge were substantially identical to those
alleged in her 2016 complaint. However, the 2017 complaint
contained additional detail regarding the illegality of the
actions AMMC allegedly asked Hill to take regarding
customers' credit scores and vehicle financing.
Specifically, Hill's 2017 complaint alleged the actions
AMMC asked her to take would have amounted to forgery under
Neb. Rev. Stat. § 28-603 (Reissue 2016) and would have
violated Neb. Rev. Stat. § 28-619 (Reissue 2016), which
prohibits issuing a false statement for the purpose of
obtaining a financial transaction device.
moved to dismiss the 2017 complaint, asserting it failed to
state a claim under Neb. Ct. R. Pldg. § 6-1112(b)(6).
AMMC argued the state law claim was barred by the doctrine of
claim preclusion, because the federal court had already
decided the claim on the merits and dismissed it as time
hearing on AMMC's motion was held, and evidence was
offered by both parties and received without objection. The
court concluded Hill's wrongful discharge claim was
barred by the doctrine of claim preclusion. It specifically
found the federal court's dismissal of Hill's state
law claim was a final judgment on the merits, was rendered by
a court of competent jurisdiction, involved the same issues,
and involved the same parties. The district court
subsequently entered an order dismissing the complaint and
taxing costs to Hill.
filed this timely appeal, which we moved to our docket ...