Chaney v. Evnen , 307 Neb. 512 ( 2020 )

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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
CHANEY v. EVNEN
Cite as 307 Neb. 512
Brian Chaney, appellant, v. Robert B.
Evnen, in his official capacity
as Nebraska Secretary of
State, et al., appellees.
___ N.W.2d ___
Filed October 16, 2020. No. S-20-660.
1. Motions to Dismiss: Pleadings: Appeal and Error. An appellate court
reviews a district court’s order granting a motion to dismiss de novo,
accepting the allegations in the complaint as true and drawing all rea-
sonable inferences in favor of the nonmoving party.
2. Rules of the Supreme Court: Pleadings: Appeal and Error. An appel-
late court reviews the district court’s denial of a motion to amend under
Neb. Ct. R. Pldg. § 6-1115(a) for an abuse of discretion. However, an
appellate court reviews de novo any underlying legal conclusion that
the proposed amendments would be futile.
3. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, for which an appellate court has an obligation to reach
an independent conclusion irrespective of the decision made by the
court below.
4. Moot Question: Jurisdiction: Appeal and Error. Although mootness
does not prevent appellate jurisdiction, it is a justiciability doctrine that
can prevent courts from exercising jurisdiction.
5. Moot Question. Mootness refers to events occurring after the filing
of a suit which eradicate the requisite personal interest in the dispute’s
resolution that existed at the beginning of the litigation.
6. Actions: Moot Question. An action becomes moot when the issues
initially presented in the proceedings no longer exist or the parties lack
a legally cognizable interest in the outcome of the action.
7. Moot Question: Words and Phrases. A moot case is one which seeks
to determine a question that no longer rests upon existing facts or
rights—i.e., a case in which the issues presented are no longer alive.
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8. Moot Question. The central question in a mootness analysis is whether
changes in circumstances have forestalled any occasion for meaning-
ful relief.
9. Pleadings: Equity. A prayer for general equitable relief is to be con-
strued liberally and will often justify granting relief in addition to that
contained in the specific prayer, provided it fairly conforms to the case
made by the petition and the evidence.
10. ____: ____. The prayer for general relief in an equity action is as broad
as the pleadings and the equitable powers of the court sufficient to
authorize any judgment to which the party is entitled under the plead-
ings and the evidence.
11. Motions to Dismiss: Pleadings. To prevail against a motion to dismiss
for failure to state a claim, a plaintiff must allege sufficient facts to
state a claim to relief that is plausible on its face. In cases in which
a plaintiff does not or cannot allege specific facts showing a neces-
sary element, the factual allegations, taken as true, are nonetheless
plausible if they suggest the existence of the element and raise a rea-
sonable expectation that discovery will reveal evidence of the element
or claim.
12. Motions to Dismiss: Pleadings: Appeal and Error. When reviewing
an order dismissing a complaint, an 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
conclusion.
13. Constitutional Law: Initiative and Referendum. The right of initia-
tive is precious to the people and is one which courts are zealous to
preserve to the fullest tenable measure of spirit as well as letter.
14. Pleadings: Words and Phrases. Pleading facts with particularity means
the who, what, when, where, and how: the first paragraph of any news-
paper story.
Appeal from the District Court for Lancaster County: Robert
R. Otte, Judge. Affirmed.
Scott A. Lautenbaugh, of Law Offices of Scott Lautenbaugh,
for appellant.
Douglas J. Peterson, Attorney General, and Ryan S. Post for
appellee.
Mark C. Laughlin and Daniel J. Gutman, of Fraser Stryker,
P.C., L.L.O., for appellees Albert Davis III et al.
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CHANEY v. EVNEN
Cite as 307 Neb. 512
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Fruedenberg, JJ.
Per Curiam.
Brian Chaney filed a lawsuit in which he sought to prevent
Nebraska voters from amending provisions of the Delayed
Deposit Services Licensing Act, Neb. Rev. Stat §§ 45-901 to
45-931 (Reissue 2016 & Cum. Supp. 2018), through a ballot
initiative measure. Chaney alleged that some individuals who
signed the initiative petition wished to withdraw their signa-
tures. He also asserted that certain petition circulators did not
comply with a Nebraska statute and committed fraud during
the petition process. The district court dismissed Chaney’s
lawsuit, and Chaney appeals. Finding no error in the district
court’s decision, we affirm.
I. BACKGROUND
1. Initiative
This case concerns an initiative measure which, if adopted,
would establish a statutory cap on the annual percentage rate
that delayed deposit services licensees may charge. We recently
decided another case involving this initiative petition. See
Thomas v. Peterson, ante p. 89, ___ N.W.2d ___ (2020). In
Thomas, we held that the ballot title prepared by the Nebraska
Attorney General which referred to delayed deposit service
licensees as “payday lenders” was not insufficient or unfair.
See id. This case concerns the same initiative petition, but
raises different legal arguments.
2. Chaney’s Complaint
On August 31, 2020, Chaney filed a lawsuit naming
Secretary of State Robert B. Evnen (the Secretary); Albert
Davis III; Thomas A. Wagoner, Jr.; and Fr. Damian Zuerlein as
defendants. Davis, Wagoner, and Zuerlein are the sponsors of
the initiative petition at issue. Chaney identified the action as
one to enjoin the Secretary from including the petition on the
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November 3, 2020, general election ballot, pursuant to Neb.
Rev. Stat. § 32-1412(2) (Cum. Supp. 2016).
In the complaint, Chaney alleged that in June 2020, the
sponsors submitted signatures in support of the initiative peti-
tion to the Secretary. According to the complaint, each signa-
ture page included a sworn and notarized statement from the
petition circulator asserting, among other things, that the circu-
lator “‘stated to each signer the object of the petition as printed
on the petition before he or she affixed his or her signature to
the petition.’” After those signatures were verified by county
election officials, the Secretary certified on July 31, 2020,
that all statutory requirements were met to place the initiative
meas­ure on the November 3 general election ballot.
Chaney’s complaint did not contest the Secretary’s determi-
nation that the sponsors submitted sufficient signatures from
the requisite number of counties as required by article III, § 2,
of the Nebraska Constitution. Rather, he asserted that 188 of
the signatories wished to withdraw their signatures or that their
signatures were otherwise invalid. Chaney alleged that when
those individuals signed the petition, the petition circulators
did not read the object of the petition to them. He also alleged
that each of those individuals would not have signed the peti-
tion if the object had been read to them.
Chaney attached to his complaint 188 affidavits. The affida-
vits are substantially identical, with limited handwritten details
relevant to each individual affiant including the county in
which the affiant resided. Each affiant swore that the “circula-
tor did not read to me the statement regarding the object of
the petition that I now know was printed on the petition page”
and that “I would not have signed the petition had the object
statement been stated to me before the circulator asked for
my signature.”
Based on these allegations, Chaney asserted that the signa-
tures were procured in violation of Neb. Rev. Stat. § 32-628
(Reissue 2016) and that the circulators committed fraud. He
also alleged that the 188 affiants wished to withdraw their
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CHANEY v. EVNEN
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signatures. The complaint claimed that without the signatures
of the affiants, the petition was no longer supported by signa-
tures from the requisite 5 percent of the registered voters in
38 counties.
In his prayer for relief, Chaney requested the “issuance of
a temporary and permanent injunction enjoining the Secretary
from placing the legally insufficient Petition on the November
3, 2020 general election ballot.” He also prayed “[f]or such
other further relief as the Court may deem just and equitable.”
3. Motions Hearing
After the filing of the complaint, Chaney filed a motion for
a temporary injunction. The sponsors filed a motion to dismiss
for failure to state a claim upon which relief could be granted
or, in the alternative, a motion for summary judgment. The
sponsors also filed a motion to continue Chaney’s motion for
temporary injunction.
The district court held a hearing concerning the foregoing
motions on September 8, 2020. At that hearing, counsel for
Chaney, the Secretary, and the sponsors offered evidence and
argument concerning the motions.
4. Dismissal Order
On September 9, 2020, the district court issued an order
sustaining the sponsors’ motion to dismiss and overruling
Chaney’s motion for temporary injunction. The district court
held that Chaney’s signature withdrawals were untimely and
that he failed to allege fraud with particularity. In the course of
concluding that Chaney had not adequately alleged fraud, the
court reasoned that § 32-628(3) “does not require petition cir-
culators to read the object statement ‘verbatim to each person
beforehand.’ . . . Rather, ‘it is sufficient that circulators sum-
marize, generally, the object or purpose of the petition in a way
that is not misleading.’”
In ordering dismissal, the district court further stated that
Chaney “is not given leave to amend because the amendment
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CHANEY v. EVNEN
Cite as 307 Neb. 512
to his Complaint would not change the allegations in the affi-
davits attached therein.”
II. ASSIGNMENTS OF ERROR
Chaney assigns, condensed and restated, that the district
court erred (1) by granting the motion to dismiss and (2) by not
giving him the opportunity to amend his complaint.
III. STANDARD OF REVIEW
[1] An appellate court reviews a district court’s order grant-
ing a motion to dismiss de novo, accepting the allegations in
the complaint as true and drawing all reasonable inferences in
favor of the nonmoving party. Chafin v. Wisconsin Province of
Society of Jesus, 301 Neb. 94, 917 N.W.2d 821 (2018).
[2] An appellate court reviews the district court’s denial of
a motion to amend under Neb. Ct. R. Pldg. § 6-1115(a) for an
abuse of discretion. However, we review de novo any under-
lying legal conclusion that the proposed amendments would
be futile. Kelly v. Saint Francis Med. Ctr., 295 Neb. 650, 889
N.W.2d 613 (2017).
[3] Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an indepen-
dent conclusion irrespective of the decision made by the court
below. J.S. v. Grand Island Public Schools, 297 Neb. 347, 899
N.W.2d 893 (2017).
IV. ANALYSIS
1. Mootness
[4] The Secretary and sponsors contend that we should
not reach the merits of this appeal because it is now moot.
They argue that the specific relief Chaney sought in this case
pursuant to § 32-1412(2)—an order enjoining the Secretary
from certifying or printing the initiative petition on the bal-
lot—is no ­longer available because the official ballot has
been certified and copies of the ballot have been printed.
Although mootness does not prevent appellate jurisdiction, it
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CHANEY v. EVNEN
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is a justiciability doctrine that can prevent courts from exercis-
ing jurisdiction. Nesbitt v. Frakes, 300 Neb. 1, 911 N.W.2d
598 (2018). Accordingly, our analysis in this case begins not
with Chaney’s assignments of error, but with the question of
whether this case is moot.
[5-8] Mootness refers to events occurring after the filing
of a suit which eradicate the requisite personal interest in the
dispute’s resolution that existed at the beginning of the litiga-
tion. State ex rel. Peterson v. Ebke, 303 Neb. 637, 930 N.W.2d
551 (2019). An action becomes moot when the issues initially
presented in the proceedings no longer exist or the parties lack
a legally cognizable interest in the outcome of the action. Id.
A moot case is one which seeks to determine a question that
no longer rests upon existing facts or rights—i.e., a case in
which the issues presented are no longer alive. Id. The central
question in a mootness analysis is whether changes in circum-
stances have forestalled any occasion for meaningful relief.
See id.
[9,10] As noted, the Secretary and the sponsors contend
this case is moot because the specific relief Chaney requested
pursuant to § 32-1412(2) can no longer be ordered. But even
if that relief cannot be granted, it is not the only relief Chaney
requested. Chaney also requested “such other further relief as
the Court may deem just and equitable.” We understand this
language to be a prayer for general equitable relief. Such a
prayer is to be construed liberally and will often justify grant-
ing relief in addition to that contained in the specific prayer,
provided it fairly conforms to the case made by the petition
and the evidence. Daugherty v. Ashton Feed and Grain Co.,
Inc., 208 Neb. 159, 303 N.W.2d 64 (1981). The prayer for
general relief in an equity action is as broad as the pleadings
and the equitable powers of the court sufficient to authorize
any judgment to which the party is entitled under the pleadings
and the evidence. Sullivan v. General United Life Ins. Co., 209
Neb. 872, 312 N.W.2d 277 (1981). The relevant question in the
mootness analysis in this case is thus whether any meaningful
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CHANEY v. EVNEN
Cite as 307 Neb. 512
relief could be provided in the event Chaney were to prevail.
We believe the answer to this question is yes.
The Secretary decides disputed points of election law, but
those decisions only retain the force of law until changed by
the courts. See Neb. Rev. Stat. § 32-201 (Reissue 2016). This
court has previously entertained requests for relief after the
certification of a ballot initiative but before the election. See,
Stewart v. Advanced Gaming Tech., 272 Neb. 471, 723 N.W.2d
65 (2006); State ex rel. Wieland v. Beermann, 246 Neb. 808,
523 N.W.2d 518 (1994). See, also, Neb. Rev. Stat. §§ 32-801
(Reissue 2016) and 32-402.01 (Reissue 1993) (Secretary shall
certify issues at least 50 days before general election). And
in one such case, State ex rel. Wieland v. Beermann, supra,
we provided relief. There, a citizen sought a writ of manda-
mus compelling the Secretary to remove proposed legisla-
tive resolutions from the general election ballot because the
required explanatory statements had been filed after the statu-
tory deadline. We granted the writ and then directed removal
of the measures from the general election ballot just days
before the election. It is safe to presume that at the time of our
decision in State ex rel. Weiland, printing of the ballots had
already begun.
Although the relief in State ex rel. Wieland arose out of our
mandamus jurisdiction rather than our appellate jurisdiction,
it suggests that we could direct the legal removal of the peti-
tion from the ballot even if we could not direct its physical
removal. We see no reason why, if Chaney were entitled to
prevail, we could not do the same here.
Based on our holding in State ex rel. Wieland, circumstances
as they now stand have not forestalled any occasion for the
meaningful relief requested by Chaney. Therefore, dismissal on
mootness grounds is inappropriate.
2. Failure to State Claim
Turning now to the merits of Chaney’s appeal, we begin
with his various arguments concerning the district court’s
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dismissal of his complaint for failure to state a claim. On this
topic, we note that although the parties submitted evidence at
the hearing on the motion to dismiss, the district court did not
convert the motion to dismiss to a motion for summary judg-
ment or consider the evidence submitted by the parties. See
Neb. Ct. R. Pldg. § 6-1112(b) (if, on motion to dismiss for
failure to state claim, matters outside pleading are presented
to and not excluded by court, motion shall be treated as one
for summary judgment). Chaney, however, does not assign
error to the district court’s decision to decide the motion to
dismiss on the pleadings alone, and all of the parties’ argu-
ments on appeal focus on whether Chaney’s complaint stated a
claim upon which relief could be granted, rather than whether
he could withstand summary judgment. We thus confine our
analysis to the issue of whether Chaney adequately stated a
claim as well.
[11,12] In considering whether Chaney stated a claim, we
apply well-known principles. To prevail against a motion to
dismiss for failure to state a claim, a plaintiff must allege
sufficient facts to state a claim to relief that is plausible on
its face. Schaeffer v. Frakes, 306 Neb. 904, 947 N.W.2d 714
(2020). In cases in which a plaintiff does not or cannot allege
specific facts showing a necessary element, the factual allega-
tions, taken as true, are nonetheless plausible if they suggest
the existence of the element and raise a reasonable expectation
that discovery will reveal evidence of the element or claim. Id.
When reviewing an order dismissing a complaint, an appel-
late 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 conclusion. Holloway
v. State, 293 Neb. 12, 875 N.W.2d 435 (2016). For purposes of
a motion to dismiss, a court is not obliged to accept as true a
legal conclusion couched as a factual allegation, and threadbare
recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice. Id.
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As noted in the background section above, Chaney identi-
fied three different theories in his complaint why certain peti-
tion signatures should not be given effect. He claimed that sig-
natories wished to withdraw their signatures, that circulators
did not comply with § 32-628(3), and that circulators engaged
in fraud. We will take up each of these theories, beginning
with Chaney’s claim that the individuals who signed affi-
davits attached to his complaint wished to withdraw their
signatures.
(a) Signature Withdrawal
Although not mentioned in Chaney’s complaint, a Nebraska
statute, Neb. Rev. Stat. § 32-632 (Reissue 2016), allows peti-
tion signatories to withdraw their signatures by following cer-
tain steps. Section 32-632 provides:
Any person may remove his or her name from a peti-
tion by an affidavit signed and sworn to by such person
before the election commissioner, the county clerk, or
a notary public. The affidavit shall be presented to the
Secretary of State, election commissioner, or county clerk
prior to or on the day the petition is filed for verification
with the election commissioner or county clerk.
Relying on this statute, the district court concluded that
Chaney’s signature withdrawals were untimely. It reasoned that
Chaney had alleged that the Secretary certified the petition for
the general election ballot on July 31, 2020, and that the dead-
line for removing signatures under § 32-632 was thus some-
time before that date. None of Chaney’s affidavits, however,
were signed before August 20.
Section 32-632 allows petition signatories to withdraw their
signatures and provides no indication that a signatory must
provide any particular reason in order to effectuate the with-
drawal of his or her signature. To the extent petition signatories
wish to have their signature withdrawn simply because they no
longer wish to support an initiative petition, we conclude that
they must do so in compliance with § 32-632. If such signature
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withdrawals could be effectuated outside of § 32-632, the
restrictions of that section would have no force.
There is no indication that the 188 individuals who signed
affidavits attached to Chaney’s complaint complied with
§ 32-632. As the district court observed, those affidavits were
signed weeks after the Secretary certified the petition for the
ballot. In addition, Chaney’s complaint also provides no indi-
cation that those ballots were presented to any of the officials
specified by § 32-632. Accordingly, we find that the district
court did not err to the extent it concluded that Chaney did
not state a claim upon which relief could be granted merely by
alleging that the individuals who signed affidavits attached to
his complaint wished to withdraw their signatures.
In response to the district court’s finding that the signature
withdrawals were not timely, Chaney argues that the Secretary
did not make the signed petitions available to him until after
the petition had been certified for the ballot. He argues that
the deadline to seek the court’s involvement cannot be before
the identities of petition signers are made available by the
Secretary. While the availability of the identities of the peti-
tion signers may have made it close to impossible for Chaney
to contact petition signers to inquire about whether they were
interested in withdrawing their signature, there is nothing
in our record that suggests signatories were precluded from
seeking signature withdrawal in compliance with § 32-632. In
short, Chaney argues that challengers to an initiative petition
must have the opportunity to obtain the identities of petition
signers and contact them before the time to withdraw their
signatures expires. We view this as a policy argument properly
directed to the Legislature.
At oral argument, counsel for the Secretary argued that
§ 32-632 is the sole means by which signatures can be with-
drawn or declared invalid and thus that the signatures in sup-
port of this initiative petition are not open to challenge even
if Chaney could show that circulators did not comply with
§ 32-628(3) or engaged in fraud. Chaney argues to the contrary.
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We find, however, that we need not resolve the parties’ compet-
ing positions on this issue, because, as we will explain, Chaney
did not adequately allege that circulators failed to comply with
§ 32-628(3) or engaged in fraud.
(b) Compliance With
§ 32-628(3)
Chaney also contends that circulators failed to comply with
§ 32-628(3). In support of this theory, Chaney alleged that peti-
tion circulators did not read the object statement of the petition
to his supporting affiants. He argues petition circulators were
required to do so by § 32-628(3). As we will explain, however,
we disagree.
Section 32-628(3) requires that every sheet of a petition
which contains signatures be accompanied by an affidavit from
the circulator. The statute provides that the affidavit shall be in
“substantially the following form” and goes on to list various
items, including that the circulator “stated to each signer the
object of the petition as printed on the petition before he or she
affixed his or her signature to the petition.” § 32-628(3).
Chaney argues that this language requires the circulator
to read the object statement of the petition to the signatory
verbatim. The Secretary and the sponsors counter that a ver-
batim reading is not required. While they concede that the
circulator cannot say anything false or misleading, they argue
this language allows the circulator to summarize the object
statement.
In our view, both Chaney on the one hand and the Secretary
and the sponsors on the other have made plausible arguments
based on the statutory text. In the end, however, we side with
the Secretary and the sponsors and conclude that a verbatim
reading of the object statement is not required. In support
of this conclusion, we note that the affidavit described in
§ 32-628(3) need not include the exact language of the stat-
ute but must only be in “substantially the following form.”
(Emphasis supplied.)
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[13] While we find that the Secretary and the sponsors
have the better textual argument, our reading of § 32-628(3) is
largely informed by the fact that we are interpreting a statute
pertaining to the exercise of the people’s power of initiative.
As we have often said, the right of initiative is precious to
the people and is one which courts are zealous to preserve to
the fullest tenable measure of spirit as well as letter. See, e.g.,
Christensen v. Gale, 301 Neb. 19, 917 N.W.2d 145 (2018). To
that end, we have also emphasized that statutory provisions
authorizing initiative petitions should be construed in such
a manner that the legislative power reserved in the people is
effectual and should not be circumscribed by restrictive legisla-
tion or narrow and strict interpretation of the statutes pertaining
to its exercise. Id. We find those principles applicable here and
conclude that requiring petition circulators to read the object
statement of the petition to each signatory verbatim would be
a narrow and strict interpretation of § 32-628(3) that could
unduly restrict the power of initiative.
We find confirmation of our conclusion from a recent case
in which we relied on the same principles to resolve a question
of statutory interpretation related to the initiative and refer-
endum process. In Hargesheimer v. Gale, 294 Neb. 123, 881
N.W.2d 589 (2016), the plaintiffs alleged that a referendum
petition should be removed from the ballot because the statu-
torily required list of sponsors did not include Governor Pete
Ricketts. The plaintiffs alleged that Governor Ricketts qualified
as a sponsor because he contributed money to the referendum
campaign and supported it publicly. We rejected this argument,
holding that only those who agreed to assume responsibility
for the initiative and referendum petition process qualified
as sponsors.
In support of our conclusion, we noted that the argument
urged by the plaintiffs would “tend to restrict the powers of
initiative and referendum by making compliance with the
statute more precarious.” Id. at 134, 881 N.W.2d at 597-98.
We reasoned that if we were to adopt plaintiffs’ reading of
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“‘sponsoring the petition’” to include individuals who par-
ticipated in or supported the petition process, we would “inject
ambiguity and make adherence difficult” and “expose the peti-
tion process to procedural challenges and the risk of defects
unrelated to the substance of the petition.” Id. at 134, 881
N.W.2d at 598. Much like the reading urged by the plaintiffs
in Hargesheimer, we believe that the reading advanced by
Chaney would “mak[e] compliance with the statute more pre-
carious” and “expose the petition process to procedural chal-
lenges and the risk of defects unrelated to the substance of the
petition.” See 294 Neb. at 134, 881 N.W.2d at 598.
Having concluded that petition circulators were not required
to read the object statement of the petition to signatories,
we find Chaney’s claim for relief based on a violation of
§ 32-628(3) crumbles. The only way in which Chaney alleges
that circulators did not comply with § 32-628(3) is by failing
to read the object statement to signatories.
(c) Fraud
[14] This leaves only Chaney’s argument that petition sig-
natures were subject to invalidation because circulators com-
mitted fraud and that he adequately alleged the details of such
fraud. As we evaluate this theory, we must do so under a dif-
ferent pleading standard. Under our pleading rules, claims of
fraud are subject to a heightened pleading standard. Our rules
of pleading provide that “[i]n all averments of fraud, . . . the
circumstances constituting fraud . . . shall be stated with par-
ticularity.” Neb. Ct. R. Pldg. § 6-1109(b) (rev. 2008). Pleading
facts with particularity means the who, what, when, where,
and how: the first paragraph of any newspaper story. Chafin v.
Wisconsin Province Society of Jesus, 301 Neb. 94, 917 N.W.2d
821 (2018). With this standard in mind, we take up Chaney’s
allegations of fraud.
The complaint did not make any factual allegations suggest-
ing that circulators committed fraud on petition signatories, let
alone plead such details with particularity. The complaint does
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not allege, for example, any of the “who, what, when, where,
and how” details concerning the provision of misleading infor-
mation to signatories.
The only factual allegations that even approach the neces-
sary level of particularity are Chaney’s assertions that circula-
tors defrauded the Secretary by asserting that “they stated to
each signer the object of the petition as printed on the peti-
tion.” But Chaney claims this was fraudulent solely because
circulators did not read the object statement as printed on the
petition. Chaney’s fraud allegation thus collapses back into his
argument that a circulator can only “‘state[] to each signer the
object of the petition as printed on the petition’” by reading
that statement verbatim. We have concluded that is not the case
and thus conclude that Chaney has not adequately alleged that
circulators defrauded the Secretary.
Boiled to its essence, Chaney’s complaint alleged only
that certain petition circulators did not read the object state-
ment of the petition to certain signatories and that signatories
decided that they wished to withdraw their signatures. As we
have explained, those allegations, even if true, do not estab-
lish that the circulators failed to comply with § 32-628(3) or
that they committed fraud. And, to the extent that individual
signatories simply decided that they wanted to withdraw their
signatures, they could do so only through the means set forth
by the Legislature, not via this lawsuit. Because Chaney’s
factual allegations, even if true, do not establish a right to the
relief he seeks, the district court did not err in finding that
the complaint failed to state a claim upon which relief could
be granted.
3. Leave to Amend
Not Required
Finally, Chaney claims that the district court erred in not
allowing him the opportunity to amend his complaint. Chaney
acknowledges, however, that he never asked that the district
court grant him leave to amend his complaint. The Secretary
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and the sponsors argue that the district court could not abuse
its discretion by declining to grant leave to amend when it was
not asked to do so.
A number of federal circuit courts have concluded that a
trial court cannot abuse its discretion by denying leave to
amend when it was not requested. See, e.g., U.S. ex rel. Shara
Ambrosecchia v. Paddock Labs., 855 F.3d 949 (8th Cir. 2017);
Fletcher-Harlee v. Pote Concrete Contractors, 482 F.3d 247
(3d Cir. 2007); Sinay v. Lamson & Sessions Co., 948 F.2d 1037
(6th Cir. 1991); Coates v. Illinois State Bd. of Ed., 559 F.2d
445 (7th Cir. 1977). We, however, do not appear to have ever
specifically adopted that rule. And, we have said that “[a]s a
general rule, when a court grants a motion to dismiss for fail-
ure to state a claim, a party should be given leave to amend
absent undue delay, bad faith, unfair prejudice or futility.”
Eadie v. Leise Properties, 300 Neb. 141, 150, 912 N.W.2d 715,
722 (2018).
But even if we have left open the possibility that a trial court
could abuse its discretion by dismissing a complaint without
allowing for amendment in the absence of a request for leave
to amend, it remains true that, as a practical matter, it will be
more difficult for a plaintiff to show that the district court has
abused its discretion by doing so. Without such a request, the
trial and appellate courts will likely be left to guess at what
amendments plaintiff might seek to make and thus have no way
to know whether the problems with the dismissed complaint
can be cured.
Hargesheimer v. Gale, 294 Neb. 123, 881 N.W.2d 589
(2016), illustrates the difficulty of showing that a district court
erred by not allowing leave to amend when the plaintiffs made
no request to do so. In that case, the plaintiffs argued that the
district court should not have dismissed their complaint with
prejudice, but granted them leave to amend. We noted, how-
ever, that they did not make a request to amend the complaint
and that they did not show how an amendment could cure the
problems with the dismissed complaint.
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Like the plaintiffs in Hargesheimer, Chaney has not shown
how an amendment could have cured his failure to state a
claim upon which relief could be granted. Chaney pled that
188 petition signatories wished to withdraw their signatures
because they were procured by fraud and that the object state-
ments were not read to signatories. However, we have con-
cluded that the withdrawals were untimely submitted and that
Chaney’s allegations of fraud, even if they could render the
withdrawals timely, were based on an incorrect understanding
and application of § 36-328(3). Upon our review of the record,
we conclude that Chaney has made no showing how amend-
ment could have cured these defects.
Because Chaney neither moved for leave to amend nor
showed how the defects in his complaint could have been
cured, the district court did not err by declining to grant him
leave to amend.
V. CONCLUSION
For the reasons we have explained, the district court did
not err by dismissing Chaney’s complaint or by not providing
him with the opportunity to amend his complaint. Accordingly,
we affirm.
Affirmed.