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Keith v. Data Enterprises, Inc.

Court of Appeals of Nebraska

March 19, 2019

Brady Keith, on behalf of himself and all others similarly situated, appellant,
Data Enterprises, Inc., appellee.

         1. Motions to Dismiss: Appeal and Error. A district court's grant of a motion to dismiss is reviewed de novo.

         2.___:___. 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.

         3. 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 be granted.

         4. 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.

         5. 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.

         6. Limitations of Actions: Contracts. Generally, there is a 5-year statute of limitations on a written contract.

         7.___:___. An action on an oral contract can only be brought within 4 years.

         8. 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.

         9. Limitations of Actions: Negligence. The statute of limitations for negligence and negligent misrepresentation is 4 years.

         10. 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.

         11. Federal Acts: Contribution. Where a third-party complaint seeks indemnification or contribution for violation of a federal statute, federal law applies.

         12. 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.

         13. Federal Acts: Contribution. The Fair Credit Reporting Act does not contain any language expressly providing for contribution or indemnity.

         14. 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 state remedies.

         15. Federal Acts. The Fair Credit Reporting Act has not been found to support an implied right to indemnity.

         16. 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.

         17.___. 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 cases.

         18. 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.

         [27 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 upheld.

         20. 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.

          Appeal from the District Court for Lancaster County: Andrew R. Jacobsen, Judge. Affirmed.

          Joshua C. Dickinson, of Spencer Fane, L.L.P., for appellant.

          Colin A. Mues and Emily R. Motto, of Baylor, Evnen, Curtiss, Grimit & Witt, L.L.P., for appellee.

          Riedmann, Bishop, and Welch, Judges.

          Bishop, Judge.


         Brady 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.


         1. 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:

         [27 Neb.App. 26] (g) Truncation of credit card and debit ...

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