Neb. Sup. Ct. R. 6-1105

As amended through November 11, 2024

Section 6-1105 - [Effective 1/1/2025] Serving and filing pleadings and other documents

(a) Service: When Required.

(1) In general. Unless the applicable statutes or these rules provide otherwise, each of the following documents must be served on every party:

(A) a pleading filed after the original complaint unless the court orders otherwise under § 6-1105(c) because there are numerous defendants;

(B) an order stating that service is required;

(C) a discovery document required to be served on a party, unless the court orders otherwise;

(D) a written motion, except one that may be heard ex parte; and

(E) a written notice, appearance, demand, offer of judgment, designation of record on appeal, and any similar document.

(2) If a Party Fails to Appear. No service is required on a party who is in default for failing to appear, unless:

(A) the document is a motion for the entry of a default judgment against the party or a notice of hearing on such a motion; or

(B) the document is a pleading that asserts a new claim for relief against the party, in which event the pleading must be served in the manner provided for service of a summons.

(b) Service: How Made.

(1) Serving Parties Represented by an Attorney. If a party is represented by an attorney, service must be made on the attorney unless the court orders service on the party.

(2) Serving Documents Filed Electronically. Section 2-205(A) governs when a document must be served on a person electronically through the court-authorized service provider.

(3) Serving Documents Not Filed Electronically. If a document is not required to be served on a person electronically through the court-authorized service provider, the document may be served by:

(A) handing it to the person;

(B) leaving it:

(i) at the person's office with a clerk or other person in charge or if no one is in charge, in a conspicuous place in the office; or

(ii) if the person has no office or the office is closed, leaving it at the person's usual place of residence with someone of suitable age and discretion who resides there;

(C) mailing it to the address stated pursuant to § 6-1111(a)(3) or the person's last-known address, in which event service is complete upon mailing;

(D) sending it to the person by email if the person has stated an email address pursuant to § 6-1111(a)(3) in which event service is complete upon sending the document, but is not effective if the sender learns that it did not reach the person;

(E) sending it to the person by a designated delivery service as defined in Neb. Rev. Stat. § 25-505.01(1)(d), in which event service is complete on the delivery date shown on the signed delivery receipt; or

(F) delivering it by any other means that the person consented to in writing or that the court authorized, or if authorized by statute, leaving it with the court clerk.

(c) Serving Numerous Defendants.

(1) In General. If an action involves an unusually large number of defendants, the court may, on motion or on its own, order:

(A) pleadings filed by defendants and replies to those pleadings need not be served on the other defendants;

(B) any cross-claim, counterclaim, avoidance, or affirmative defense in those pleadings and replies to them will be treated as denied or avoided by all other parties; and

(C) filing a pleading and serving it on the plaintiff constitutes notice of the pleading to all parties.

(2) Notifying Parties. A copy of the court's order must be served on the parties as the court directs.

(d) Who Must or May File Electronically; When Documents Not Filed Electronically Must be Filed; Filing Discovery Documents; Certificates of Service.

(1) Electronic Filing. A person represented by an attorney must file documents electronically through the court-authorized service provider unless non-electronic filing is allowed by another court rule. A non-attorney may file documents electronically through the court-authorized service provider only if allowed by § 2-203(C).

(2) Time for Filing Other Documents; Exception for Discovery Documents. All documents after the complaint that are not filed electronically through the court-authorized service provider but that are required to be served on a party, must be filed within a reasonable time after service. But discovery documents, including disclosures, deposition notices, depositions, interrogatories, requests for documents or tangible things or to permit entry onto land, requests for admissions, certificates of service for such discovery documents, deposition and discovery subpoenas, and returns of service for such subpoenas must not be filed unless they are relevant to a motion or the court orders them to be filed.

(3) Certificates of Service.

(A) Documents Served Electronically. Section 2-205 governs certificates of service for documents that are served electronically through the court-authorized service provider.

(B) Documents Served by Other Means. With the exception of discovery documents, if a document that must be served on a party is not served electronically through the court-authorized service provider, the attorney or party causing the document to be served must file a certificate of service no later than a reasonable time after service. The certificate of service must state when and how service was made on the party.

Neb. Sup. Ct. R. 6-1105

Rule 5(b) amended June 25, 2008, effective date July 18, 2008. Renumbered and codified as § 6-1105(b), effective 7/18/2008; § 6-1105(b)(2)(E) amended August 31, 2011; § 6-1105(b)(2)(E) amended June 8, 2016; amended June 9, 2021, effective 1/1/2022; amended November 13, 2024, effective 1/1/2025.

COMMENTS TO § 6-1105

[1] The rule was amended in 2021 to incorporate the Electronic Filing, Service, and Notice System Rules. The rule was amended again in 2024. Some of the amendments made organizational and stylistic changes to make the rule easier to read. Other amendments made substantive changes, which are discussed below.

[2] The original version of subpart (a) provided that, except for pleadings that asserted new or additional claims for relief, documents did not need to be served on a party that was in default for failing to appear. The Supreme Court stated that the rule established that "a party in default for failure to appear is not entitled to notice when the plaintiff moves for default judgment." Cruz-Morales v. Swift Beef Co., 275 Neb. 407, 414 (2008). Nevertheless, almost half of the district courts had local rules that could be read as requiring notice. The Supreme Court subsequently indicated that those local rules superseded the provisions of subpart (a). See Fitzgerald v. Fitzgerald, 286 Neb. 96 (2013).

[3] Having local rules that conflict with a statewide rule can cause confusion. To eliminate the potential for confusion, subpart (a) was amended in 2024 to require that motions for a default judgment and notices of hearing for such motions must be served on defaulting parties. The requirement of giving notice to a defaulting party is consistent with the general policy of deciding cases on the merits because it may encourage the defaulting party to seek leave to file a responsive pleading and defend the case on the merits.

[4] Subpart (a) originally contained a service provision for actions begun by seizing property. The provision was deleted in 2024 because it did not serve any purpose. The provision was based on Rule 5 (a)(3) of the Federal Rules of Civil Procedure, a rule that is primarily aimed at admiralty actions in rem. Those actions cannot be filed in state court, however. Although civil forfeiture actions can be filed in state court, the Nebraska forfeiture statutes specify who must be served and how.

[5] Subpart (b)(3) specifies the methods for serving documents that are not filed electronically. One of those methods is service by mail. The provision originally authorized service by first-class mail. The 2024 Amendments deleted "first-class" because the Postal Service now offers a wider range of services, including Priority Mail. The deletion of "first-class" also means that a party now has the option of serving a document by certified mail if it so chooses.

[6] The 2024 Amendments also added two additional methods of service. The first additional method is in subpart 5(b)(3)(E), which provides that a party may serve a document by using a designated delivery service such as Federal Express or UPS. The subpart builds on the statutory provisions that allow the use of a designated delivery service to serve a summons. See Neb. Rev. Stat. § 25-505.01(1)(d).

[7] The second additional method is in subpart (b)(3)(F), which provides that a party may serve a document "by any manner . . . that the court authorized . . . ." The method is designed for unusual situations. For example, if the party's cell phone number is known but the party's email address and whereabouts are not, the court might authorize service by text messaging.

[8] Prior to 2024, the Court Rules of Pleading in Civil Cases and the Court Rules of Discovery in Civil Cases both contained provisions on filing and serving documents. The 2024 Amendments consolidated those provisions in § 6-1105.

[9] Section 6-1105(d)(2) provides that discovery documents must not be filed unless they are relevant to a motion or the court orders them to be filed. Although most discovery documents will not fall within the filing exceptions, some will. For example, discovery requests and responses may be filed when they are relevant to a motion to compel or a motion for a protective order. Discovery documents that are relevant to a motion for summary judgment, however, should not be filed. Parties should follow the procedures setout in § 6-1526 and offer the documents as evidence at the hearing.