Neb. Sup. Ct. R. 6-1108
Neb. Sup. Ct. R. 6-1108
COMMENTS TO § 6-1108
[1] When the rules were promulgated in 2002, the provisions on pleading damages were split between § 6-1108 and § 6-1109. The 2024 Amendments combined the provisions and put them in § 6-1103(a)(3). General damages are discussed in subpart (a)(3)(A), and special damages are discussed in subpart (a)(3)(B).
[2] Subpart (a)(3)(B) requires a party to state each category of special damages it seeks and the total amount of those damages. A party may state the total amount by stating the amount (e.g., plaintiff seeks $60,000 in special damages), the amount of each category of special damages (e.g., plaintiff seeks $45,000 in past medical expenses and $15,000 in lost wages), or both (e.g., plaintiff seeks $60,000 in special damages, consisting of $45,000 in past medical expenses and $15,000 in lost wages).
[3] The required statement may be included in the statement of the claim or in the demand. It may also be included in both. The primary purpose of stating special damages is to give the defendant notice of the categories of damages sought. Notice can be given equally well by stating the categories in either the statement of the claim or in the demand.
[4] If a party seeks prejudgment interest, subpart (a)(3)(C) requires the party to state the starting date for the computation. The date may be included in the statement of the claim or in the demand. It may also be included in both. The purpose of requiring the date to be stated is to give the defendant notice that the plaintiff is seeking prejudgment interest and to allow the defendant to begin preparing its defense. As with special damages, notice can be given equally well by stating the date in the statement of the claim or in the demand.
[5] The Federal Rules of Civil Procedure provide that a party may enter a general denial only if the pleader "intends in good faith to deny all the allegations of a pleading." Fed. R. Civ. P. 8(b). The drafters of the Nebraska Court Rules of Pleading excluded that language from § 6-1108(b) to preserve the general denial as it existed under Code Pleading. Under Code Pleading, a defending party could enter a general denial if the defendant had a good faith basis for denying at least one material allegation of the plaintiff's pleading. See Marshall v. Rowe, 126 Neb. 817, 831 (1934). Because the standard is based on pre-notice pleading case law, there is a risk that the standard may eventually be lost to history. To prevent that from happening, the 2024 Amendments added the standard to subpart (b)(3).
[6] Subpart (c)(1) contains a non exclusive list of affirmative defenses. The 2024 Amendments made three changes to the list.
[7] First, "injury by fellow servant" was deleted and "absolute or qualified immunity" was added. Injury by fellow servant was a significant defense prior to the adoption of the workers' compensation statutes. Although it is still an affirmative defense, injury by a fellow servant is not of sufficient contemporary significance to warrant including it in the list.
[8] Second, "discharge in bankruptcy" was deleted because it is not a true affirmative defense. Discharge was deleted from the rule's federal counterpart in 2010 because under the federal bankruptcy statutes, "a discharge voids a judgment to the extent that it determines a personal liability of the debtor with respect to a discharged debt. The discharge also operates as an injunction against commencement or continuation of an action to collect, recover, or offset a discharged debt. For these reasons it is confusing to describe discharge as an affirmative defense." Fed. R. Civ. P. 8(c), Advisory Committee Notes to the 2010 Amendment. Regardless of whether a party pleads discharge in its responsive pleading, the debt is discharged as a matter of federal law.
[9] Third, "res judicata" was recast as "claim or issue preclusion." Historically, "res judicata" was sometimes used to refer to claim preclusion and sometimes used to refer to both claim and issue preclusion. "Collateral estoppel" was also used to refer to issue preclusion. The Supreme Court has indicated a preference for using the modern terminology of claim preclusion and issue preclusion. See In re Interest of Noah B. et al., 295 Neb. 764, 773 (2017). Subpart (c)(1) was amended to reflect that preference.
[10] Subpart (d) governs alternative and inconsistent statements in a pleading. The original version of the subpart provided that those statements are subject to the standards set forth in Neb. Rev. Stat. § 25-824. Among other things, the statute provides that the signature of a party or attorney is a certification that there are good grounds for filing the pleading and that it is not being interposed for purpose of delay. The 2024 Amendments deleted the provision because it was unnecessary. The statute is well-known and applies by its own terms.
[11] The statute that authorized the Supreme Court to promulgate pleading rules contains an admonition that pleadings must be construed so as to do justice. See Neb. Rev. Stat. § 25-801.01(2)(d). There is a risk that judges, parties, and attorneys may be unaware of the provision because the statute is primarily an authorizing statute and the rules that it authorized were promulgated years ago. To reduce that risk, the 2024 Amendments added a cross-reference to the statute in subpart (e).