Brady Keith, on behalf of himself and all others similarly situated, appellant,
Data Enterprises, Inc., appellee.
Motions to Dismiss: Appeal and Error. A
district court's grant of a motion to dismiss is reviewed
When reviewing an order dismissing a complaint, the appellate
court accepts as true all facts which are well pled and the
proper and reasonable inferences of law and fact which may be
drawn therefrom, but not the plaintiff's conclusions.
Limitations of Actions: Pleadings. A
challenge that a pleading is barred by the statute of
limitations is a challenge that the pleading fails to allege
sufficient facts to constitute a claim upon which relief can
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.
Limitations of Actions: Pleadings. If a
complaint on its face shows that the cause of action is time
barred, the plaintiff must allege facts to avoid the bar of
the statute of limitations.
Limitations of Actions: Contracts.
Generally, there is a 5-year statute of limitations on a
An action on an oral contract can only be brought within 4
Actions: Contracts: Time: Damages. A cause
of action in contract accrues at the time of breach or the
failure to do the thing agreed to. This is so even though the
nature and extent of damages may not be known.
Limitations of Actions: Negligence. The
statute of limitations for negligence and negligent
misrepresentation is 4 years.
Limitations of Actions: Negligence: Torts.
In a negligence action, it has generally been stated that a
statute of limitations begins to run as [27 Neb.App. 24] soon
as the cause of action accrues, and an action in tort accrues
as soon as the act or omission occurs.
Federal Acts: Contribution. Where a
third-party complaint seeks indemnification or contribution
for violation of a federal statute, federal law applies.
Federal Acts: Contribution: Liability. A
defendant held liable under a federal statute has a right to
indemnification or contribution from another only if such
right arises: (1) through the affirmative creation of a right
of action by Congress, either expressly or implicitly, or (2)
under the federal common law.
Federal Acts: Contribution. The Fair Credit
Reporting Act does not contain any language expressly
providing for contribution or indemnity.
Federal Acts: Intent: Appeal and Error. In
determining whether a federal statute that does not expressly
provide for a particular private right of action nonetheless
implicitly created that right, an appellate court's task
is one of statutory construction. The ultimate question in
cases such as this is whether Congress intended to create the
private remedy that the plaintiff seeks to invoke. Factors
relevant to this inquiry are the language of the statute
itself, its legislative history, the underlying purpose and
structure of the statutory scheme, and the likelihood that
Congress intended to supersede or to supplement existing
Federal Acts. The Fair Credit Reporting Act
has not been found to support an implied right to indemnity.
Courts. The U.S. Supreme Court has
recognized the need and authority in some limited areas to
formulate what has come to be known as federal common law.
These instances are few and restricted, and fall into
essentially two categories: those in which a federal rule of
decision is necessary to protect uniquely federal interests
and those in which Congress has given the courts the power to
develop substantive law.
Absent some congressional authorization to formulate
substantive rules of decision, federal common law exists only
in such narrow areas as those concerned with the rights and
obligations of the United States, interstate and
international disputes implicating the conflicting rights of
states or our relations with foreign nations, and admiralty
Courts: Contribution. The only federal
interest in contribution or indemnification is the
vindication of federal statutory rights, but because that
interest does not involve the duties of the federal
government, the distribution of powers in our federal system,
or matters necessarily subject to federal control even in the
absence of statutory authority, it is insufficient to ground
a federal common law cause of action.
Neb.App. 25] 19. Judgments: Appeal
and Error. If a trial court arrives at the correct
result even though it uses a reason different from that
expressed by an appellate court, its judgment will still be
Appeal and Error. An appellate court is not
obligated to engage in an analysis that is not necessary to
adjudicate the case and controversy before it.
from the District Court for Lancaster County: Andrew R.
Jacobsen, Judge. Affirmed.
C. Dickinson, of Spencer Fane, L.L.P., for appellant.
A. Mues and Emily R. Motto, of Baylor, Evnen, Curtiss, Grimit
& Witt, L.L.P., for appellee.
Riedmann, Bishop, and Welch, Judges.
Keith appeals from the decision of the district court for
Lancaster County which granted the motion to dismiss of Data
Enterprises, Inc., for failure to state a claim upon which
relief could be granted. We affirm.
Basis of Case This case arose from the printing of credit and
debit card expiration dates on the printed receipts issued to
customers of a Lincoln, Nebraska, restaurant. Showing the
expiration date on the receipt was a violation of federal
law. The Fair and Accurate Credit Transactions Act of 2003
(FACTA), Pub. L. No. 108-159, 117 Stat. 1952, is an act to
amend the Fair Credit Reporting Act (FCRA), 15 U.S.C. §
1681 et seq. (2012), "to prevent identity theft, improve
resolution of consumer disputes, improve the accuracy of
consumer records, make improvements in the use of, and
consumer access to, credit information, and for other
purposes." As relevant here, § 113 of FACTA amended
15 U.S.C. § 1681c of FCRA by adding subsection (g).
Thus, 15 U.S.C. § 1681c(g) states in part:
Neb.App. 26] (g) Truncation of credit card and debit