United States District Court, D. Nebraska
BEVERLY ANDERSON, and WALTER ANDERSON, JR., Personal Representatives of the Estate of Walter Anderson, Sr.; Plaintiffs,
THERESA M. NGUYEN, and NET MINISTRIES, INC., a Minnesota Nonprofit Corporation; Defendants.
MEMORANDUM AND ORDER
Smith Camp, Chief United States District Judge.
matter is before the Court on the Partial Motion to Dismiss,
ECF No. 5, filed by Defendants NET Ministries, Inc. (NET) and
Theresa M. Nguyen (collectively “Defendants”).
Plaintiffs have not responded to the Motion. For the reasons
stated, Plaintiffs' first cause of action will be
dismissed because it is barred by Nebraska's two-year
statute of limitations applicable to wrongful death claims.
following facts are taken from the Praecipe and Complaint,
ECF No. 1-2, and are assumed true for purposes of this Motion
are personal representatives of the Estate of Walter
Anderson, Sr., their father. Nguyen is a resident of
Louisiana, and NET is a Minnesota nonprofit corporation.
about December 14, 2015, at approximately 10:00 p.m., Nguyen
was driving a 2011 Ford E350 van (the “Van”)
owned by NET, northbound on Highway 109, south of County Road
Nguyen attempted a U-turn at a driveway to a private
residence but was unable to complete the turn in a single
movement. When Nguyen attempted to back the Van into the
driveway to complete the turn, the Van blocked traffic in
both directions on Highway 109. Walter Anderson, Sr.'s
vehicle struck the right side of the Van.
allege three causes of action: (1) loss of love, society,
companionship, (2) negligence, and (3) pain and suffering. In
support of their first cause of action, Plaintiffs allege
that “[a]s a result of the negligence of Defendant
Theresa M. Nguyen, which is also imputed to the Defendant NET
Ministries, Inc., Walter Anderson, Sr.'s daughters . . .
and his son . . . suffered the loss of love, society,
companionship and support of Walter Anderson, Sr."
Compl. ¶ 9, ECF No. 1-2.
the signature block of the Complaint indicates that it was
signed on December 11, 2017, the date stamp shows that
Plaintiffs filed their Complaint on December 19, 2017, in the
District Court of Saunders County, Nebraska. Defendants
timely removed the state court action to this Court, invoking
the Court's diversity jurisdiction. ECF No. 1. Plaintiffs
have not challenged removal.
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). To satisfy this
requirement, a plaintiff must plead “enough facts to
state a claim to relief that is plausible on its face.”
Corrado v. Life Inv'rs Ins. Co. of Am., 804 F.3d
915, 917 (8th Cir. 2015) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Barton v. Taber, 820 F.3d 958, 964 (8th Cir. 2016)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Zink v. Lombardi, 783 F.3d 1089,
1098 (8th Cir. 2015) (quoting Iqbal, 556 U.S. at
678), cert. denied, 135 S.Ct. 2941 (2015). The
complaint's factual allegations must be “sufficient
to ‘raise a right to relief above the speculative
level.'” McDonough v. Anoka Cty., 799 F.3d
931, 946 (8th Cir. 2015) (quoting Twombly, 550 U.S.
at 555). The Court must accept factual allegations as true,
but it is not required to accept any “legal conclusion
couched as a factual allegation.” Brown v. Green
Tree Servicing LLC, 820 F.3d 371, 373 (8th Cir. 2016)
(quoting Iqbal, 556 U.S. at 678). Thus, “[a]
pleading that offers ‘labels and conclusions' or
‘a formulaic recitation of the elements of a cause of
action will not do.'” Ash v. Anderson
Merchandisers, LLC, 799 F.3d 957, 960 (8th Cir. 2015)
(quoting Iqbal, 556 U.S. at 678), cert.
denied, 136 S.Ct. 804 (2016).
motion to dismiss, courts must rule “on the assumption
that all the allegations in the complaint are true, ”
and “a well-pleaded complaint may proceed even if it
strikes a savvy judge that actual proof of those facts is
improbable, and ‘that a recovery is very remote and
unlikely.'” Twombly, 550 U.S. at 555 &
556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236
(1974)). “Determining whether a complaint states a
plausible claim for relief . . . [is] a context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense.” Mickelson v. Cty. of
Ramsey, 823 F.3d 918, 923 (8th Cir. 2016) (alternation
in original) (quoting Iqbal, 556 U.S. at 679).
first cause of action is a wrongful death action. Neb. Rev.
Stat. § 30-809 authorizes actions for wrongful death in
Nebraska. Neb. Rev. Stat. § 30-810 requires that every
action described in section § 30-809 be brought by the
decedent's “personal representative for the
exclusive benefit of the widow or widower and next of
kin.” A cause of action based on damages stemming from
the death itself of a human being “inures solely to the
next of kin, and exists only by virtue of the wrongful death
statutes.” Corona de Camargo v. Schon, 776
N.W.2d 1, 9 (Neb. 2009).
the first cause of action is not labeled as a wrongful death
action or brought expressly under § 30-809, Plaintiffs
seek damages resulting from their father's death.
Plaintiffs allege that because of their father's death,
they suffered loss of love, society, companionship, and
support. Nebraska only permits such claims under §
30-809. See Corona de Camargo, 776 N.W.2d at 10.