Background
Paul A. Rosberg filed a pro se complaint in October 2024 seeking $5 million in damages from his ex-wife Kelly for allegedly conspiring with three district court judges to prevent him from having visitation with his children for over 8 years. Rosberg also sought $1 million from each judge—Mark D. Kozisek, James G. Kube, and Mark A. Johnson—alleging they “conspired unlawfully under color of law” with Kelly and aided in preventing him access to the courts.
Kelly filed an Answer/Motion to Dismiss citing a property settlement agreement incorporated into their divorce decree that prohibited Rosberg from initiating legal action against her outside the scope of that case. She also raised failure to state a claim and lack of subject matter jurisdiction. The three judges moved to dismiss for insufficient service of process, arguing Rosberg failed to comply with Nebraska statutes requiring proper service on state employees and officials.
The Court’s Holding
The Nebraska Court of Appeals affirmed the district court’s dismissal of all claims. Under Neb. Rev. Stat. § 25-217, defendants must be properly served within 180 days of filing or the action is automatically dismissed. The court found that Kelly was never served within the statutory period and was therefore dismissed without prejudice. The court noted, however, that even if properly served, her motion to dismiss would have prevailed because the property settlement agreement in the prior divorce case (CI-14-52) legally prohibited Rosberg from pursuing this action.
As to the judges, while Judge Kozisek received personal service within the 180-day window, he was not “properly served” in the statutory sense. Under Neb. Rev. Stat. §§ 25-510.02 and 25-511, suing a state official in his official capacity requires that the State also be served by providing summons to the Attorney General’s office. Because the State was never served, Judge Kozisek’s dismissal without prejudice was affirmed. Judges Kube and Johnson were not served at all within the statutory period and were dismissed by operation of law.
The court applied plain error review because Rosberg failed to comply with appellate rules by not properly assigning errors in his brief. Rosberg’s argument that the service statutes were unconstitutional was rejected—he neither raised the issue in trial court nor complied with Neb. Ct. R. App. P. § 2-109(E), which requires notice to the Supreme Court Clerk and service on the Attorney General when challenging a statute’s constitutionality.
Key Takeaways
- Service of process deadlines are mandatory and jurisdictional—failure to serve a defendant within 180 days results in automatic dismissal without prejudice under § 25-217.
- Suing state officials in their official capacity requires dual service: personal service on the official and service on the Attorney General’s office; personal service alone is insufficient.
- Prior settlement agreements can contractually bar future litigation between parties, and courts will enforce these restrictions even where a plaintiff has not been properly served.
- Appellants must comply with procedural rules for assigning errors and raising constitutional challenges; failure to do so forfeits appellate consideration of those claims.
Why It Matters
This decision reinforces Nebraska’s strict service-of-process requirements and the jurisdictional consequences of missing the 180-day deadline. For attorneys suing state officials in their official capacity, the ruling clarifies that personal service on the official is not sufficient—the State (via the Attorney General) must also be properly served. This dual-service requirement is essential to maintain jurisdiction, and practitioners must ensure both requirements are met within the statutory window.
The case also highlights the enforceability of settlement agreements in family law matters and demonstrates that courts will dismiss actions that violate prior settlement terms. Additionally, it underscores the importance of strict compliance with appellate procedures and the risks self-represented litigants face when failing to follow court rules—Rosberg’s failure to properly assign errors and formally challenge the constitutionality of service statutes cost him appellate consideration of those arguments.