Background
In October 2023, Brent Cyboron, as personal representative of the estate of James Cyboron, and James’ surviving spouse Sandy filed a medical negligence and wrongful death action against Litzenberg Memorial Long Term Care, a skilled nursing facility owned by Merrick County, Nebraska. The plaintiffs alleged that from March 2021 to August 2022, James was a resident of the facility and received negligent care that caused pressure ulcers to develop and become infected, ultimately resulting in his death on October 19, 2022. Because Merrick County is a political subdivision, the suit was governed by Nebraska’s Political Subdivisions Tort Claims Act (PSTCA), which requires claimants to file presuit written notice of a tort claim with the proper official of the political subdivision before commencing suit.
Litzenberg Memorial moved to dismiss under Neb. Ct. R. Pldg. § 6-1112(b)(6), arguing the complaint failed to show compliance with the PSTCA’s presuit notice requirements because the Merrick County clerk — to whom the plaintiffs gave notice — was not the designated official to receive tort claim notices on behalf of Litzenberg Memorial. Before the hearing on that motion, the plaintiffs filed a motion for leave to amend their complaint to allege additional facts, including that the county clerk had expressly confirmed in email correspondence that she was the proper person to receive such notices, and to raise an equitable estoppel theory against Litzenberg Memorial based on those representations. The district court received and considered evidence at a consolidated hearing, then denied leave to amend and granted the motion to dismiss, concluding the proposed amended complaint would be futile.
The plaintiffs appealed, arguing the district court erred in denying the amendment, granting dismissal, and considering evidence outside the pleadings without converting the motion to a summary judgment proceeding. The Nebraska Supreme Court accepted the case on its own motion.
The Court’s Holding
The Nebraska Supreme Court reversed and remanded, resolving the appeal entirely on procedural grounds without reaching the merits of the PSTCA notice dispute. The court held that a motion to dismiss under § 6-1112(b) is not a “responsive pleading” for purposes of the pleading amendment rule, Neb. Ct. R. Pldg. § 6-1115(a). Because no responsive pleading had been served by any defendant when the plaintiffs sought to amend, the plaintiffs retained their absolute right to amend once as a matter of course under § 6-1115(a), and that right had not expired.
The court further held — adopting the rule followed by the Fifth, Sixth, Seventh, Eighth, Ninth, and D.C. Circuits — that a party does not waive the right to amend as a matter of course by unnecessarily filing a motion seeking leave to amend. Because the plaintiffs were entitled to amend as of right, the district court had no discretion to deny the amendment on futility grounds or any other basis. Denying that right constituted an abuse of discretion. The court directed the district court on remand to allow the amendment and to deny Litzenberg Memorial’s motion to dismiss as moot, since the original complaint would be superseded by the amended pleading.
Key Takeaways
- A § 6-1112(b) motion to dismiss is not a “responsive pleading” under Nebraska’s pleading rules and does not cut off a plaintiff’s right to amend once as a matter of course under § 6-1115(a).
- A plaintiff who is entitled to amend as a matter of course does not forfeit that right by filing an unnecessary motion for leave to amend — the court must allow the amendment as of right, and considerations such as futility are irrelevant.
- Nebraska’s 2025 amendment to § 6-1115(a) now imposes a 14-day window to amend as of course after service of a motion to dismiss, prospectively closing the gap that existed under the prior rule.
- Once an amended complaint is allowed, any pending motion to dismiss directed at the original complaint becomes moot.
Why It Matters
This decision clarifies a procedural question of first impression in Nebraska: filing a motion for leave to amend does not invite judicial gatekeeping if the party had an unconditional right to amend in the first place. Plaintiffs — and their counsel — should understand that they need not seek court permission to file an amended complaint before any responsive pleading is served, and that doing so out of caution cannot be used against them. The ruling aligns Nebraska with the majority of federal circuits on this point and forecloses a procedural trap that could otherwise extinguish substantive claims at the pleading stage.
For practitioners suing political subdivisions under the PSTCA, the case also illustrates the practical stakes of presuit notice compliance and signals that equitable estoppel may be a viable theory when a government official affirmatively misdirects a claimant — though the court expressly reserved that merits question for the district court on remand.