Funding Futurist Ideas
David Nows
Borrowing from the templates created by the United States through its Small Business Innovation Research (SBIR) and Small Business Technology Transfer (STTR) programs, as well as global programs run through organizations like the United Nations Children’s Fund (UNICEF), this article advocates for a novel international grant funding program for new entrepreneurial ventures that seek to provide solutions to significant global challenges. Using the United Nations (U.N.) Sustainable Development Goals (SDGs) as a guide, this article is the first to propose a framework for funding new entrepreneurial ventures that do not meet the traditional criteria of financial investors but seek to solve important future-facing global problems. While past scholarship has addressed the strengths and weaknesses of investment and grant funding options for new ventures, this article significantly contributes to the literature by combining many of these scholarly ideas into a comprehensive program that would provide necessary capital to world-changing entrepreneurs who would otherwise not receive funding.
Saving the Savings Clause in Federal Habeas Jurisprudence
Alex Kleinjan
The Great Writ of habeas corpus, safeguarded by our Constitution as an essential guarantor of liberty, took its current shape over the course of American history as Congress established, expanded, and eventually limited the power of federal courts to issue the writ. Although the Antiterrorism and Effective Death Penalty Act of 1996 imposed harsh new limitations for federal prisoners seeking habeas relief more than once in the same case, Congress’s amendment of the relevant procedural statutes left intact the “savings clause,” allowing such prisoners to file additional requests for relief where the prisoners’ prior requests were “inadequate or ineffective to test the legality” of their imprisonment.
Rising Tides, Rising Premiums
Kevin Freudenberg
Insuring flood-prone properties is a complex insurance problem. Attempts by the U.S. federal government to step in and correct perceived private market failures have often exacerbated the problem by artificially subsidizing building and rebuilding activity in low-lying areas. This article describes the fundamental problems inherent in the design of the National Flood Insurance Program (NFIP) by analyzing the program through the lens of the insurance concepts of moral hazard and adverse selection. It also provides a comparative view of flood insurance schemes globally, and suggests possible reforms.
What Roosevelt Did to Brown v. Board of Education, or Race and Court Packing
Jill M. Fraley
In the decades when Roosevelt’s court packing attempt remained in lived memory, Brown was never going to fully succeed in the South, where it did not have the majority support of the population. The Court simply did not have the power to demand public acquiescence or sway public opinion. This understanding of the Court’s power matters today, as both court packing and court reforms are brewing in American politics. Any future changes must be done with a nuanced understanding of how the public will view the Court and what precedents we set that will be mirrored at the state level.
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The mission of the Nebraska Law Review Bulletin is to cultivate legal education and scholarship in Nebraska by focusing on law in Nebraska and the Eighth Circuit, to be a source of legal updates for Nebraska and Eighth Circuit practitioners, and to foster communication across the various segments of the legal community. The Bulletin publishes short commentaries on legal developments in Nebraska and the Eighth Circuit as well as short responses to articles and notes published in the Review. The online journal format also allows for discussion and feedback.
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Thoughts on LB 36: Problems with the Proposed Bill to Institute Lethal Injection in Nebraska
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By Eric Berger[0]
Introduction
In February 2008, the Nebraska Supreme Court held in State v. Mata that Nebraska’s electrocution procedure violated the Nebraska constitution’s prohibition against cruel and unusual punishment.[1] Mata left Nebraska in the curious position of having the death penalty on the books without a constitutional method of executing death sentences. In December 2008, Nebraska Attorney General Jon Bruning submitted a report to the Governor recommending that Nebraska adopt lethal injection as a new means to carry out a sentence of death. General Bruning’s report included LB 36, a proposed statute that would institute lethal injection in Nebraska.
On January 29, 2009, the Judiciary Committee of the Nebraska legislature conducted hearings about LB 36 and LB 306, a competing bill that proposed repealing the death penalty in Nebraska and replacing it with life imprisonment without the possibility of parole. Several lawyers, doctors, professors, and other citizens (including former Nebraska Senator Ernie Chambers) testified on either or both bills. I was among the people who testified on LB 36 (the lethal injection bill). Specifically, I argued that LB 36 contained several provisions that would insulate Nebraska’s lethal injection procedure from democratic review and would therefore risk creating a flawed, dangerous procedure. I am attaching here my written testimony from that day.[2]
Written Testimony to the Judiciary Committee
January 29, 2009
Re: Opposition to LB 36
Lethal Injection
Members of the Judiciary Committee:
My name is Eric Berger, and I am an Assistant Professor of Law at the University of Nebraska College of Law here in Lincoln. Before I moved to Nebraska a year and a half ago to teach at the Law College, I was a practicing attorney at a law firm in Washington, D.C. During my time there, I was a member of the legal team representing Michael Taylor in his challenge to the constitutionality of Missouri’s lethal injection procedure. I also worked on Hill v. McDonough,[3] a United States Supreme Court case holding that death row inmates could challenge the lethal injection procedure by which they would be executed under a provision of the Civil Rights Act known as 42 U.S.C. § 1983. Since coming to the Law College, much of my research has focused on lethal injection, including an article being published this May in the Yale Law and Policy Review.
Since moving to Nebraska, I have been struck by this state’s proud tradition of open government. Nebraska, more so than most states in my experience, prides itself on transparent and deliberate governance. These important values are reflected, among other places, in its Criminal History Information Act, its Public Records Laws, and its Open Meetings Act.[4] While I would like to commend the sponsors of LB 36 and this committee for this hearing, I believe LB 36 undermines those important values.
Recent inquiry into some lethal injection procedures’ poor design and implementation demonstrates that lethal injection is not the humane and simple method of execution many people have assumed it to be. To the contrary, the commonly used drugs (sodium pentothal, pancuronium bromide, and potassium chloride) are now generally understood to create a significant risk of excruciating pain, especially if they are not carefully administered in a well- designed procedure by qualified medical personnel. Due to these risks, executions are or have been on hold in multiple jurisdictions across the country as courts, legislatures, and governors reevaluate current procedures. Indeed, federal courts in California, Missouri, and Tennessee have found that existing lethal injection procedures are unconstitutionally dangerous. Botched executions, administrative reviews, and constitutional challenges have also halted or significantly delayed executions in numerous other states including Arizona, Delaware, Florida, Maryland, North Carolina, Ohio, Oklahoma, and Virginia.
Many of the problems at issue in those cases and identified by those courts result from the legal and administrative process by which lethal injection protocols have been designed and implemented. Like many complex government undertakings, the administrative process used to adopt lethal injection protocols helps determine the quality of the resulting execution procedures. But in most states lethal injection has not been adopted through careful study and deliberation, but rather by mimicking other states’ procedures in almost total secrecy. The widespread three-drug protocol was initially developed in Oklahoma in 1977 and has since been adopted by numerous states without sufficient understanding of the drugs and their risks. Rather than consulting with experts, seeking public opinion, and engaging in considered analysis, states have thoughtlessly copied Oklahoma’s three-drug approach. This almost blind adoption of the Oklahoma protocol is ironic, given that the creator of that protocol today expresses shock that it is not performed by doctors but by individuals with little understanding of the dangers posed by the drugs.[5]
Respectfully, I submit that LB 36 replicates many of the mistakes made in these other states. The veil of secrecy obscuring the lethal injection protocol in LB 36 is contrary to Nebraska’s commitment to open government and risks creating a dangerous and unconstitutional execution procedure. Additionally, the bill’s numerous flaws will almost certainly generate prolonged litigation that will delay executions and cause great expense to Nebraska taxpayers.
Problematic Provisions in LB 36 Undermining Open Government in Nebraska
Section 83-965 ¶ 4 (exemption from APA requirements)
This provision exempts the execution protocol from the requirements of the Administrative Procedure Act. In so doing, this provision not only denies Nebraskans important information about how their government carries out its most solemn task, but also likely will result in a flawed execution procedure. To be performed properly, lethal injection requires expert input, a comprehensive protocol, qualified and well-trained personnel, defined contingency plans, careful recordkeeping, and a level of professionalism absent in many states. The deliberative processes fostered by the Administrative Procedure Act are essential to ensure that execution procedures possess these necessary attributes.
From my own experience litigating the Taylor v. Crawford case in Missouri, I can testify firsthand to the problems that arise when a state designs and implements a protocol in secret. When my colleagues and I litigated Taylor, Missouri’s lethal injection procedure operated in near-total secrecy. The state had delegated the entire matter to the Director of the Department of Corrections, just as LB 36 proposes to do.[6] However, the director had no medical background and knew nothing about the drugs involved. He therefore delegated the procedure to a surgeon, but he did not oversee that surgeon to keep himself apprised of how executions were carried out. The Taylor court found that the surgeon had arbitrarily and dangerously lowered the dose of anesthetic given to inmates and that he was incompetent to perform executions. Moreover, because the state had delegated complete authority to him, the court expressed concern that “there are no checks and balances or oversight” over the execution procedure.[7] Significantly, the court concluded that Missouri’s procedure was unconstitutional in large part because of the state’s failure to give careful consideration to its protocol in the first place. By hiding its execution procedure from the public and exempting it from normal APA processes, LB 36 makes the same kind of mistakes that got Missouri into trouble.
Unsurprisingly, courts also cite this lack of deliberation as reason to give less deference to state execution procedures. For instance, when California “tweaked” its execution protocol to try to comply with a federal court’s concerns, the reviewing court focused on the superficial nature of the revision process. Unsurprisingly, the court found California’s mere “tweak” to be an insufficient substitute for an open, deliberative, and thorough review. In other words, the court found that the failure to carefully deliberate was evidence of the “pervasive lack of professionalism” that plagued California’s lethal injection procedure.[8] As a result, the court explained:
a thorough review of the lethal-injection protocol, including, inter alia, the manner in which the drugs are injected, the means used to determine when the person being executed has lost consciousness, and the quality of contemporaneous records of executions, such as execution logs and electrocardiograms, likely will be necessary. To be meaningful, such a review may require consultation with independent experts and with other jurisdictions, and it must be undertaken with an openness to the idea of making significant improvements in the ‘infrastructure’ of executions.[9]
In short, the “meaningful” review contemplated by the court is precisely the type of deliberative process that states try to foster in Administrative Procedure Acts.
Along similar lines, a Tennessee federal court found that state’s lethal injection procedure unconstitutional, in part because the Commissioner of Corrections ignored recommendations of a committee that had consulted experts and proposed significant changes to Tennessee’s protocol. Given that this commissioner had not consulted his own experts or offered credible reasons for rejecting the recommendation of a panel that had given the matter substantial attention, the court determined that the procedure the commissioner insisted on retaining deserved no judicial deference.[10] A Nebraska execution protocol adopted without the benefit of administrative procedures would similarly be undeserving of judicial deference.
Section 83-965 ¶ 5 (execution protocol “shall not be made available”)
This provision continues the policy of concealment by stipulating that no part of the execution protocol shall be made available to any person without the express authorization of the Director of Correctional Services or an order from the Lancaster County District Court issued for good cause. Just like the APA provision, this provision hides the execution protocol from public view, thereby making it more likely that it will be poorly designed and administered.
An execution protocol specifies the state’s intended procedures for carrying out death sentences and therefore is a matter of public importance. Many states have attempted to keep their protocols secret, but courts frequently order that they be made public, at least for litigation purposes. Indeed, reviewing courts have condemned the states’ insistence on secrecy.[11] Moreover, in the face of heightened public concern over lethal injection, some states’ protocols, including California, Delaware, Oklahoma, and Texas’s, appear on the internet. Given Nebraska’s commitment to open government and sunshine, I respectfully suggest that if Nebraska does adopt a new method of execution, it make its own execution protocol similarly available.
One lesson from litigation around the country is that the safety (and therefore the constitutionality) of execution procedures hinges not only on the four corners of the written protocol, but also on how the protocol is administered. In several states there is evidence that the written protocols have been implemented in a careless, unprofessional, and haphazard fashion, thus strongly suggesting the possibility of a constitutional violation. LB 36’s efforts to hide not just the creation but also the implementation of the protocol from public view will threaten to create similar problems here in Nebraska.
Indeed, in addition to making it look like Nebraska has something to hide, this provision would likely be ineffective. In most circumstances, litigants challenging a lethal injection procedure in federal court would have the right under the Federal Rules of Civil Procedure to obtain full discovery into an execution method. The United States Supreme Court’s recent decision in Baze v. Rees itself contemplates this discovery by requiring an inquiry into whether a given state’s procedure is “substantially similar” to Kentucky’s.[12] Moreover, because death row inmates possess an Eighth Amendment right protecting them against excruciating executions, they likely also have an interrelated due process right to know how they will be executed. This makes sense, because without knowing the method of execution, the inmate would have no way of protecting his Eighth Amendment right.
Section 83-965 ¶ 3, et seq. (no provision for qualified personnel)
As noted above, the safety and constitutionality of lethal injection hinges largely on the quality of the people administering it. It is undisputed that the three-drug protocol causes excruciating pain if it is not administered properly,[13] so it is essential that the state use qualified personnel to administer these drugs.[14] LB 36, once again, hides the ball, by offering no indication of how the execution team members might be selected or what their qualifications, competence, or training might be.
To give just one example, § 83-965 ¶ 3 provides no indication what level of training will be required (if any) for the person who does the consciousness check. (It only vaguely states that “a determination sufficient to reasonably verify that the prisoner is unconscious be made before the administration of any additional substances.”) But consciousness can only reliably be checked by a person with training in anesthesiology.[15] LB 36’s consciousness check is therefore inadequate without assurance that it will be performed by a qualified person. Indeed, because LB 36 hides so much of the design and implementation of the protocol from public view, there is no way to know whether any steps of the procedure will be performed by competent personnel. This lack of assurance itself is likely to generate litigation.
Section 83-967 (confidentiality of participants)
I am very sympathetic to the state’s need to protect the identity of the execution team members. If Nebraska does adopt a new method of execution, I agree entirely that the state can and should protect the executioners’ identities. That being said, § 83-967 as currently drafted is so vague and overbroad as to likely violate the First Amendment.
Paragraphs 2 and 3 in particular forbid not only disclosure of the identity of execution team members, but also the disclosure of “any information reasonably calculated to lead to the identities” of the execution team members. Paragraph 3 goes so far as to criminalize such disclosure. In so doing, it violates the First Amendment’s freedom of speech. It would be almost impossible for somebody to know in advance what would constitute “information reasonably calculated to lead to the identities” of execution team members. That language could mean one thing to one person and another thing to someone else. It could also be used to prosecute, for instance, members of the media for truthfully reporting on lawfully obtained information about execution team competence, even if such a report disclosed no one’s identifying information, such as name, address, or employer. Such vagueness and overbreadth likely violate the First Amendment, because they chill constitutionally protected speech.[16]
In addition to raising serious constitutional concerns, these provisions are also bad policy. If the provisions are interpreted broadly, they could insulate from disclosure even the most basic information about execution personnel’s training and qualifications. Missouri, for instance, refused to disclose whether a team member had ever been disciplined or had a medical license revoked on the ground that it was identifying information—but obviously such information is directly relevant to the safety of the execution procedure. Collectively, then, these provisions further insulate the most important details of the execution procedure from public view. If most information about the execution team members were secret, the public would have no way to learn of executioner malfeasance, and the state would have less incentive to find and properly train competent people.
It is important to emphasize that litigants and the public in general can receive important information without learning the names, addresses, or other identifying information about the execution team members. This was the case in Missouri. Under the court’s supervision, we were able to learn about the surgeon’s incompetence and misconduct without ever receiving any identifying information, such as his name, address, or place of work. Discovery agreements and protective orders in other states also have ensured that the executioners’ identities remain anonymous while litigants still get the information they need. In the event that Nebraska does adopt a new method of execution, it would be constitutionally permitted to protect the identity of its execution team members. However, as currently drafted, § 83-967 is so vague and overbroad that it offends the First Amendment and invites needless litigation.
The Problem of Pancuronium
Though LB 36 does not specify the drugs that will be used, the Attorney General’s Report suggests a preference for the three-drug protocol. The second drug in this protocol is pancuronium bromide, which completely paralyzes the inmate. The use of pancuronium in executions contributes to the lack of transparency and openness, because it conceals all suffering from witnesses, including the execution team itself. Additionally, the use of pancuronium greatly complicates litigation challenging lethal injection, because the plaintiff can always point to the pancuronium as the reason why apparently peaceful past executions might still have been painful. The inclusion of pancuronium, then, not only greatly increases the risk that the inmate will suffer undetected pain, but also increases the likelihood that time-consuming litigation will stall executions at significant expense to the state.
The Limited Scope of Baze v. Rees
Before concluding, it is worth emphasizing that the Supreme Court’s decision in Baze v. Rees resolved only the constitutionality of the Kentucky procedure at issue in that case. While it did set a legal Eighth Amendment standard against which all lethal injection protocols will be judged, the constitutionality of a given state’s procedure depends on how that state implements its own protocol. As noted above, this turns heavily on the details of implementation, including the training and competence of the execution team members. Significantly, the plaintiff’s lawyers in Baze had failed to gather virtually any important information about how the Kentucky protocol actually worked in practice.[17] Baze was therefore an easy case, because there was no evidence of malfeasance or maladministration. It would be a mistake, though, to assume that litigation in all other states using the same drugs would necessarily be resolved the same way.
Because the constitutionality of each state’s procedure is fact specific, litigation is ongoing in numerous states, and courts are permitting discovery into the details of those states’ procedures. Discovery into the implementation of lethal injection protocols has been ongoing recently in challenges to the lethal injection procedures in Arizona, Ohio, Oklahoma, and the federal government. It is therefore important to understand that merely trying to copy the Kentucky procedure approved in Baze is no guarantee to avoiding litigation or to ensuring a humane execution procedure. Indeed, if there is a lesson to be learned from the litigation thus far, it is that the details of implementation determine an execution procedure’s humaneness and constitutionality as much as the written protocol does.
Conclusion
In closing, I respectfully submit that it would be imprudent for Nebraska to pass a lethal injection statute now. Litigation is still pending in several states around the country, and discovery into those states’ actual practices may well uncover constitutional problems, like those already found in California, Missouri, and Tennessee. Until that litigation is resolved, any new statute adopting lethal injection as a method of execution is almost certain to provoke extended and costly litigation. I therefore respectfully suggest that this legislature study closely both the facts and the costs of such litigation (and the significant financial costs of the death penalty more generally) before voting on LB 36.
Thank you for your consideration.
Sincerely,
Eric Berger
Assistant Professor of Law
University of Nebraska College of Law
Preferred Citation Format: Eric Berger, Thoughts on LB 36: Problems with the Proposed Bill to Institute Lethal Injection in Nebraska, 1 Neb. L. Rev. Bull. 14 (2009), http://lawreview.unl.edu/?p=405.
FOOTNOTES
0. Assistant Professor of Law, University of Nebraska College of Law.↑
1. State v. Mata, 275 Neb. 1, 67, 745 N.W.2d 229, 278 (2008).↑
2. Minor stylisitic and citation edits have been made to my original written testimony.↑
3. 547 U.S. 573 (2006).↑
4. See Neb. Rev Stat. §§ 29-3501 to -3528 (Reissue 2008); Neb. Rev. Stat. §§ 84-712 (Reissue 2008); Neb. Rev. Stat. §§ 84-1408 to -1414 (Reissue 2008).↑
5. See Deborah W. Denno, The Lethal Injection Quandary: How Medicine Has Dismantled the Death Penalty, 76 Fordham L. Rev. 49, 68-69 (2007).↑
6. See LB 36, § 83-965, ¶ 2, 101st Leg., 1st Sess. (Neb. 2009) (“The Director shall create, modify, and maintain a written execution protocol . . . ”).↑
7. Taylor v. Crawford, No. 05-4173-CV-C-FJG, 2006 WL 1779035, at *7 (W.D. Mo. June 26, 2006).↑
8. Morales v. Tilton, 465 F. Supp. 2d 972, 980 (N.D. Cal. 2006).↑
9. Id. at 983 (internal quotation marks and citations omitted).↑
10. See Harbison v. Little, 511 F. Supp. 2d. 872, 895-98 (M.D. Tenn. 2007).↑
11. See, e.g., Oken v. Sizer, 321 F.Supp. 2d 658, 664 (D. Md. 2004) (“Fundamental fairness . . . requires that the execution protocol that will regulate an inmate’s death be forwarded to him in prompt and timely fashion.”).↑
12. Baze v. Rees, 128 S. Ct. 1520, 1537 (2008).↑
13. Mark Dershwitz & Thomas K. Henthorn, The Pharmacokinetics and Pharmacodynamics of Thiopental as Used in Lethal Injection, 35 Fordham Urb. L.J. 931, 931 (2008); Frank Romanelli et al., Issues Surrounding Lethal Injection as a Means of Capital Punishment, 28 Pharmacotherapy 1429, 1433 (2008).↑
14. Other methods of lethal injection would also need to be properly implemented by qualified personnel. Because the Attorney General’s Report seems to anticipate the adoption of the three-drug method, my discussion focuses on that method.↑
15. See, e.g., Dershwitz & Henthorn, supra note 13, at 949.↑
16. See, e.g., Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971); Florida Star v. B. J. F., 491 U.S. 524, 530-41 (1989).↑
17. See Baze, 128 S.Ct at 1527-28.↑
Pick and Nebraska Employment Law: Interpreting Contracts and Good Faith
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By Steven L. Willborn[0]
Nebraska has followed the national trend limiting employment at will. It recognizes oral contracts,[1] limits discharges that violate public policy,[2] and requires employers who promise jobs to deliver them.[3] None of these were recognized during the heyday of employment at will.
Last fall, the supreme court issued Pick v. Norfolk Anesthesia, P.C.,[4] an interesting addition to the development of employment law in Nebraska. In this brief article, I will comment on two aspects of Pick. First, Pick interprets employment contracts in an unusual way. Fortunately, the case isn’t so specific that the Nebraska courts will be bound to continue down that path. I suggest an alternative way of interpreting employment contracts that is preferable and still open to the courts in Nebraska. Second, Pick alerted me to possibilities in Nebraska law that I thought had been foreclosed. I now think the covenant of good faith and fair dealing is recognized in employment contracts in Nebraska, despite language in prior opinions that made me think otherwise. And this is good.
The Case
The plaintiffs in Pick were seven nurse anesthetists who worked for Norfolk Anesthesia. They all worked under oral contracts that paid them about $120,000 each, plus an annual bonus that was paid near the end of the year.
In 2005, the nurse anesthetists all quit on September 16. When the end of the year rolled around, the employer failed to pay them their bonuses claiming that the bonuses only had to be paid if the nurse anesthetists were still employed at the end of the year. So the nurse anesthetists sued. Formally, the claim was a statutory one alleging a violation of the Nebraska Wage Payment and Collection Act (NWPCA). But practically, it was a case about oral contracts. If the oral contracts said that the bonuses had to be paid, then the NWPCA was violated; if not, it wasn’t.[5]
The district court found for the plaintiffs. It held that the oral contracts provided that bonuses had to be paid if the company had a profit at the end of the year, which it did.[6] Importantly, the district court also found that the oral contracts did not require that the nurse anesthetists remain on staff until the end of the year to get their bonuses.[7]
The supreme court reversed in an opinion written by Chief Justice Heavican. The court applied the “commonsense notion that absent an express agreement otherwise, an employee ordinarily forfeits the right to receive a bonus by resigning before the [year] ends.”[8] Here, the court said, there was no express agreement that a bonus would be paid if the employees left before the end of the year. Therefore, since they had resigned in September, they were not entitled to bonuses.
Interpreting Employment Contracts
The unusual thing about the supreme court’s result is that the district court had found as a factual matter that the oral employment agreement did not require an employee to be working at the end of the year to remain eligible for the bonus.[9] Since the supreme court did not and could not properly overrule this factual finding, the court’s holding rests on the thin reed of how express the contract was on this point. The court said that because the oral contracts did not expressly counter the legal presumption that one has to work to the end of the year to earn a bonus, the employees lose.[10] That is an unfortunate result, and it opens the door to more mischief in interpreting employment contracts.
Consider two possible factual situations. First, the actual situation in Pick was that the fact-finder determined that the employment contracts (1) contained only one condition for an employee to receive a year-end bonus (the existence of company profits) and (2) did not require that the employees remain in employment at the end of the year to maintain eligibility for a bonus. The supreme court’s holding was that there is a “commonsense notion”—read that as a legal presumption—that every employment contract providing for a bonus also has a condition that the employee has to be employed at the end of the year to get the bonus and that the legal presumption can be overridden only by an “express” provision. This is unfortunate. It is a throwback to employment at will in its heyday when the courts regularly ignored the parties’ true intentions in favor of hard-to-override legal presumptions that heavily favored employers.[11]
Pick happened to be a case about year-end bonuses, but its analysis opens the door to lots of other post hoc court-discovered clauses in employment contracts. Thus, Pick presents the potential of being even more unfortunate. In most cases, when the parties agree on something, the courts should respect their decision.[12]
But Pick is troubling at a deeper level, too. Consider a slightly different situation than the one presented in Pick. Assume that the district court had found that the bonus only had to be paid if there were year-end profits, but it simply could not determine the parties’ intent on the issue of what should happen if the employees resigned before the end of the year. (Note that this is different than the actual situation in Pick because there the district court found that the agreement had resolved the latter issue.)[13] What should a court do when the parties’ agreement does not resolve an issue like this?
There are two general views on how courts should address this type of issue in employment contracts. First, the courts can use a mimic-the-parties approach where it applies the rule it thinks the parties would have agreed to had they thought about it. If working to the end of the year to qualify for a bonus really is a “commonsense” notion, then that is what the parties would have agreed to and, therefore, that is how the court should decide the issue. But this approach means that the courts have to try to divine the parties’ likely intent. That is difficult in most employment contracts because the parties normally have quite different and opposing interests.
Another approach to this issue is called the penalty-default approach. Instead of trying to divine the parties’ intent, the court’s goal in this approach is to encourage the parties to settle the issue themselves. The general idea is to set the default rule against the party who is most likely to know the rule and act to counter it. That is, to “penalize” that party to encourage it to address the issue in the agreement itself and, in so doing, to disclose valuable information to the other party.[14] In the Pick situation, this would mean setting the rule to disfavor the employer: Employees do not have to work to the end of the year to qualify for a bonus. Employers are repeat actors, they are more likely to know the default rule, they are more likely to be the drafters of the contract, and they are more likely to have legal counsel. If the default is set against the employer, it is likely the employer will know about it and, thus, address it (and counter it) in the employment agreement itself. When this occurs, the court won’t have to guess the parties’ intent—it will know it. And so will both of the parties before any dispute arises.
Again, the penalty-default approach creates incentives for the parties themselves to resolve contested issues, rather than the courts. And, when the parties do that, it makes it less likely the disputes will ever end up in court. Both of those are very good results.
Pick implies that the Nebraska Supreme Court is going to use a mimic-the-parties approach to uncertainty in employment contracts. But Pick doesn’t make a holding on that point. Instead it uses its “commonsense” to insert a provision into an employment contract without any guidance at all about where the provision comes from. Maybe the court was guessing what the parties would have wanted. If so, Pick was using a mimic-the-parties approach. At least, that would provide lower courts, employers, and employees with some guidance about what discovered provisions we might find in employment contracts in the future. But we simply do not know if that’s what the court thought it was doing.
The absence of guidance in Pick has its upside. The court has certainly not bound itself to any particular approach in interpreting employment contracts. When it has another opportunity to do so, I would urge it to consider a penalty-default approach that will encourage employers to reveal valuable information to employees about the terms of their agreement. Over time, this would mean that there will be fewer surprised and disappointed plaintiffs like those in Pick. It would also mean fewer court cases and, accordingly, fewer situations in which courts are put in the uncomfortable position of determining the parties’ agreement for them.
Good Faith in Nebraska
For years, I have told my students that, although Nebraska does pretty well, there is one area where we have failed to keep up with modern trends in employment law. Based on unequivocal language from the supreme court, I would tell them that the court has failed to limit employers when they do not act in good faith.[15] But, I would tell them, it would be hard for the supreme court to deny such a claim if it were presented with a classic case, such as one where an employee had fully earned a bonus, but was fired just before receiving it so the employer could keep the money itself.[16] I did not realize until Pick that the supreme court has been presented with such a case, and that it did find for the plaintiff.[17]
Pick contains a “cf.” cite to Sinnett v. Hie Food Products, Inc.[18] Sinnett presented the court with an extreme version of the classic good faith and fair dealing case. The plaintiff was promised a bonus if he worked an entire year. He began employment on October 1, 1967, so he would have become entitled to the promised bonus if he had worked a full day on September 30, 1968. But the employer fired him during the day on September 30 and denied him the bonus. The Nebraska Supreme Court held that it did not matter that the employment agreement was terminable at will; the employee was entitled to the bonus anyway where he was fired without good cause.[19]
The court did not discuss the theory of its holding, but it has to be the covenant of good faith and fair dealing. Consistent with that view, Sinnett has been cited by other courts and authorities as resting on the covenant, including Fortune v. National Cash Register Co.,[20] the leading case nationally applying the covenant in an employment case.[21]
So what is one to make of a situation like this? On the one hand, in Sinnett, the court found for an employee in a holding that had to be based on the covenant of good faith and fair dealing. But in other cases, the court has held against employees while saying that the covenant does not apply in employment cases.
This is not such a hard problem. It presents standard-fare issues about how to harmonize two lines of cases. So let’s examine what we know for sure, and what is still open to debate.
First, we know that, despite inconsistent language, Nebraska recognizes the covenant of good faith and fair dealing in employment cases. That is the only explanation for the holding in Sinnett. The court did not categorize its decision in Sinnett as one based on good faith and it may call it something else the next time to avoid direct conflict with its no-good-faith language in other cases. But for practical purposes, when the court is faced with a classic good faith claim (the Sinnett case), it is going to decide it as if it were a good faith claim.
Second, we know that Nebraska is not going to interpret the covenant of good faith expansively. In California, the covenant was once interpreted so broadly that it came very close to eliminating the underlying employment-at-will rule.[22] Nebraska will not do that. We know this from White v. Ardan, Inc.,[23] in which the court rejected a good faith claim where the basic argument was that the discharges were improper because an employer had said false and mean things about the discharged employees.
Third, somewhat less certainly, I would predict that Nebraska will follow those states that in Sinnett-like situations permit the covenant to be used only to recover damages, but not to challenge discharge decisions themselves.[24] Recovery of the bonus was the remedy in Sinnett, but that was all that the plaintiff was seeking. So the issue is not resolved. But the skeptical language about the covenant in cases like White v. Ardan makes it likely that the courts will be inclined to limit the cause of action in this way, rather than to treat it more broadly.
But there is much we do not know about good faith claims in Nebraska, too. Although we know the outer boundaries, we do not know the precise dividing line between successful and unsuccessful claims. We know that a classic Fortune case will be successful; that’s Sinnett. We know that a Foley-type claim will fail; that’s White v. Ardan. But we do not know precisely where Nebraska will draw the dividing line. Significantly, we do not know where Nebraska would come down on the other classic type of good faith case: a situation in which an employee is fired for performing the duties required by the job. The justification for finding a violation of the covenant in this situation is that it protects an employee against the catch-22 of being fired for doing what the job requires him to do. But not all states have accepted it in that circumstance.[25]
Of course, many other variations on the good-faith theme also remain to be explored in Nebraska. But the message for Nebraska practitioners is that, despite language to the contrary, good faith claims are alive and well in employment cases. And that’s as it should be. Nebraska courts shouldn’t be in the business of protecting people who act in bad faith.
Preferred Citation Format: Steven L. Willborn, Pick and Nebraska Employment Law: Interpreting Contracts and Good Faith, 1 Neb. L. Rev. Bull. 7 (2009), http://lawreview.unl.edu/?p=328.
FOOTNOTES
0. Dean & Schmoker Professor of Law, University of Nebraska College of Law.↑
1. See, e.g., Mueller v. Union Pac. R.R., 220 Neb. 742, 371 N.W.2d 732 (1985).↑
2. See, e.g., Jackson v. Morris Commc’ns Corp., 265 Neb. 423, 657 N.W.2d 634 (2003); Schriner v. Meginnis Ford Co., 228 Neb. 85, 421 N.W.2d 755 (1988).↑
3. Goff-Hamel v. Obstetricians & Gyns., P.C., 256 Neb. 19, 588 N.W.2d 798 (1999). Goff-Hamel illustrates both the trend away from employment at will and its limits. Not all employer promises to deliver jobs are enforceable—only those where there is detrimental reliance.↑
4. 276 Neb. 511, 755 N.W.2d 382 (2008).↑
5. Despite this, the NWPCA was in the case for an important reason. The NWCPA provides for attorney’s fees; garden-variety contract claims do not.↑
6. The case also involved a dispute about the size of the bonus, but that is not relevant to the issues I am discussing.↑
7. The district court stated both these points clearly and strongly: “The bonus had been previously agreed to by all the parties . . . .” Pick v. Norfolk Anesthesia, P.C., No. CI05-686R at 2 (Dist. Ct. Madison County, Neb. Feb. 15, 2007) (emphasis added). “There is no evidence to establish that one of the requirements for the payment of the bonus was that the plaintiffs work the full year.” Id. at 3 (emphasis added).↑
8. 276 Neb. at 518, 755 N.W.2d at 388. The case actually references the end of the “corresponding bonus period” rather than the end of the year. I use “year” simply as shorthand.↑
9. See supra note 7.↑
10. Justice Gerrard concurred in the decision. His decision was less damaging to employment law than the majority’s, but it is probably even more difficult to justify. He found for the employer because working to the end of the year was “a known and negotiated condition of receiving the bonus.” 276 Neb. at 519, 755 N.W.2d at 388. But this is impossible to square with the district court’s finding that there was “no evidence” to establish such a requirement.↑
11. See, e.g., Skagerberg v. Blandin Paper Co., 266 N.W. 872 (Minn. 1936) (holding that “permanent” employment means at-will employment and cannot be enforced without “extra” consideration). See generally Steven L. Willborn et al., Employment Law: Cases and Materials 63-65 (4th ed. 2007).↑
12. There are exceptions, of course. Most significantly, when third party interests are affected by an employment contract, the courts may intervene. An agreement to murder someone is not enforceable. That is the underlying theory of the modern tort limitations on employment at will. See generally Stewart J. Schwab, Wrongful Discharge Law and the Search for Third Party Effects, 74 Tex. L. Rev. 1943 (1996).↑
13. For two reasons, it will not do to say that the oral contract in Pick was silent on the end-of-the-year issue and the supreme court was merely filling in the gap. First, that’s not consistent with the facts found by the district court. The district court found that the contract did not contain such a requirement. Second, and more broadly, no contract covers everything. If the supreme court can add a term anytime there’s any gap whatsoever, there’s just too much room for interference with the parties’ intentions. (“We find that the parties didn’t talk about whether the plaintiff had to hold his nose and spin three times to qualify for his bonus; the contract required that and the plaintiff didn’t meet the condition.”) There has to be a limit. “Commonsense” is a vague limit, of course, but it doesn’t and can’t carry the load.↑
14. This idea is well received and supported in the legal literature both in employment law specifically and in contract law generally. See Cass R. Sunstein, Switching the Default Rule, 77 N.Y.U. L. Rev. 106 (2002) (discussing the idea in employment law); Ian Ayres & Robert Gertner, Majoritarian vs. Minoritarian Defaults, 51 Stan. L. Rev. 1591 (1999) (discussing the idea in contract law generally). Recently, a popular and easy-to-read book has discussed the value and importance of “choice architecture,” including how to set default rules appropriately. Richard H. Thaler & Cass R. Sunstein, Nudge: Improving Decisions About Health, Wealth, and Happiness (2008).↑
15. See, e.g., Renner v. Wurdeman, 231 Neb. 8, 15, 434 N.W.2d 536, 541 (1989) (“[T]his state continues to deny any implied covenant of good faith or fair dealing in employment termination.”); Jeffers v. Bishop Clarkson Mem’l Hosp., 222 Neb. 829, 833, 387 N.W.2d 692, 695 (1986) (exactly the same quote; different cites).↑
16. This is one of the two classic situations in which the covenant of good faith and fair dealing has been recognized. See, e.g., Fortune v. National Cash Register Co., 364 N.E.2d 1251 (Mass. 1977). The other is a situation where the employer fires an employee for performing the duties required by his job. Willborn, supra note 11, at 183.↑
17. Sinnett v. Hie Food Products, Inc., 185 Neb. 221, 174 N.W.2d 720 (1970). Two things in my defense: First, despite its importance, Sinnett is not mentioned at all in Bob Evnen’s Bible of Nebraska employment law. Robert B. Evnen, Developments in the Law of Employment at Will, in Trying Matters in Employment Law (Neb. Continuing Legal Educ. & Neb. State Bar Ass’n Labor and Employment Section, 2003). Mr. Evnen assures me that it will be in the next edition. Second, as I often tell my students, I’m an academic, not a real lawyer. For real law, it’s always better to rely on real lawyers.↑
18. 185 Neb. 221, 174 N.W.2d 720.↑
19. Id. at 223-224, 174 N.W.2d at 722. Sinnett was cited in Pick because of dicta in the case that said that employees are not entitled to bonuses when they voluntarily quit before the end of the year. Id. at 224, 174 N.W.2d at 722. That only merited a “cf.” cite in Pick both because it was dicta and because it was made in a situation where the agreement was silent, not one like Pick where the fact-finder had found that working to the end of the year was not required by the parties’ contract.↑
20. 364 N.E.2d 1251 (Mass. 1977).↑
21. In addition to Fortune, see Maddaloni v. W. Mass. Bus Lines, Inc., 422 N.E.2d 1379, 1384 (Mass. App. Ct. 1981) (citing Sinnett and saying situation “calls for implication of a covenant of good faith”). See also 14 William Meade Fletcher et al., Fletcher Cyclopedia of the Law of Private Corporations § 6763 n. 8 (perm. ed., rev. vol. 2003) (citing Sinnett to support proposition that some courts have enforced implied covenants of good faith and fair dealing).↑
22. See Foley v. Interactive Data Corp., 765 P.2d 373 (Cal. 1988) (termination without cause after working for an employer for about seven years violates covenant of good faith and fair dealing), later limited by Guz v. Bechtel Nat’l, Inc., 8 P.3d 1089 (Cal. 2000); see also Wagenseller v. Scottsdale Mem’l Hosp., 710 P.2d 1025, 1040 (Ariz. 1985) (accepting California’s version of the covenant would “tread perilously close to abolishing completely the at-will doctrine . . . ”; the court adopted a narrower version).↑
23. 230 Neb. 11, 430 N.W.2d 27 (1988).↑
24. See Wakefield v. N. Telecom, Inc., 769 F.2d 109, 112 (2d Cir. 1985) (covenant may not be used to challenge the “termination per se,” but can be used to claim denied commissions).↑
25. See, e.g., Murphy v. Am. Home Prods. Corp., 448 N.E.2d 86 (N.Y. 1983).↑
There’s No Escape: The Plaintiff’s Right to Dismiss After the Submission of a Motion for Summary Judgment or a Motion to Dismiss in Nebraska
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By John P. Lenich[0]
Section 25-601(1) provides that the plaintiff can voluntarily dismiss an action without prejudice anytime before final submission.[1] “Final submission contemplates submission on both the law and the facts when nothing remains to be done in order to render the submission complete.”[2] A final submission occurs in a bench trial when the parties finish their closing arguments. A final submission occurs in a jury trial after the parties finish their closing arguments and the jury has been instructed.[3] At that point, the action has been put in the hands of the trier of fact for a decision on the merits.
A final submission can occur on a motion. For example, an action is under final submission when the defendant moves to dismiss the action at the close of the plaintiff’s case in a bench trial.[4] An action is also under final submission when the defendant moves for a directed verdict in a jury trial and the parties have made their arguments on the motion.[5] If the court denies the motion, however, the action is no longer under final submission. The court’s decision in effect sets aside the submission and allows the action to proceed. The plaintiff can then dismiss the action without prejudice if it so chooses.[6]
It is unclear whether the filing and arguing of a summary judgment motion constitutes a final submission for purposes of § 25-601. It is also unclear whether the filing and arguing of a motion to dismiss for failure to state a claim constitutes a final submission. This commentary argues that the submission of either motion should be treated as a final submission of the action. The plaintiff should not be allowed to avoid a potentially dispositive ruling by dismissing its action without prejudice so that it can bolster its case and refile in a more sympathetic forum.
Summary Judgment
A motion for a directed verdict is treated as final submission “because the court is called upon to determine as a matter of law whether there are any issues arising from the facts submitted which present a jury question.”[7] The same is true of a motion for summary judgment. The court is called upon to determine as a matter of law whether there are any issues arising from the facts that present a triable issue.[8] Therefore, the submission of a motion for summary judgment should be treated as a final submission of the action.
The supreme court’s decision in Kansas Bankers Surety Co. v. Halford,[9] however, could be read as saying that the plaintiff’s right to dismiss is unaffected by a pending motion for summary judgment. The plaintiff in Kansas Bankers moved to dismiss the action—and the court entered its order dismissing the action—on the same day that the plaintiff’s brief in opposition to the defendant’s summary judgment motion was due. After the plaintiff dismissed the action, the defendant sought an award of attorney’s fees pursuant to § 25-824 on the ground that the plaintiff’s action was frivolous. The district court granted the defendant’s motion. The plaintiff then appealed.
The supreme court reversed. The court held that the district court lacked jurisdiction to grant the defendant’s motion for attorney’s fees because the action had already been dismissed when the defendant filed its motion. The court noted that the pendency of a counterclaim will preclude the plaintiff from dismissing an action in its entirety but added that the defendant had not filed a counterclaim.[10] The defendant had instead filed a motion for summary judgment.[11] Therefore, the plaintiff had a right to dismiss the action.
Because the court in Kansas Bankers concluded that the plaintiff had the right to dismiss the action pursuant to § 25-601, the court must have concluded that the pending summary judgment motion did not constitute a final submission. But the court did not explain why. The most likely reason is that the submission in Kansas Bankers was incomplete at the time the plaintiff dismissed the action. Although the summary judgment motion had been filed, not all of the briefs had been filed. The plaintiff obtained an extension to file its brief in opposition to the motion. Instead of filing its brief on the day it was due, however, the plaintiff moved to dismiss the action.[12]
That is significant because the court had previously held that if a motion for a directed verdict is filed and the trial court orders the parties to file briefs within a specified time period, then the action is not deemed to be finally submitted until the briefs are filed or until the time for filing them expires.[13] The time for filing the briefs in Kansas Bankers had not expired when the plaintiff dismissed the action. Therefore, the plaintiff was free to dismiss the action under §25-601 because there had not yet been a final submission.
In short, the court’s decision in Kansas Bankers does not support the proposition that the plaintiff’s right to dismiss is unaffected by a pending motion for summary judgment. The decision instead supports a narrower proposition: the plaintiff’s right to dismiss is unaffected by a pending motion for summary judgment that has not been finally submitted. Final submission occurs when the briefs have been filed or the time for filing them expires. If no briefing schedule was set, then final submission occurs when the oral arguments are over.
The plaintiff would be free to dismiss the action without prejudice if the court denies the motion. If the court grants the motion, however, the plaintiff would not be free to dismiss the action. That should be true even if the motion disposes of some but not all of the claims in the action. Although the order granting the motion would not be a final judgment, it would be the product of a final submission.[14] Therefore, the plaintiff would no longer have the right to dismiss the claims without prejudice unless the order was set aside—in other words, unless the final submission was set aside.[15]
Motion to Dismiss for Failure to State a Claim
Although a motion for summary judgment should be treated as a final submission that terminates the plaintiff’s right to dismiss, there is some question about whether the same should be true of a motion to dismiss for failure to state a claim upon which relief can be granted. There are two decisions that seem to come to different conclusions.
In Koll v. Stanton-Pilger Drainage District,[16] the Nebraska Supreme Court held that the sustaining of a demurrer for failure to state a cause of action is not a final submission. The court emphasized that a demurrer “merely challenges defects shown on the face of the petition” and that the plaintiff should ordinarily be given leave to amend when a demurrer is sustained.[17] The court noted that the plaintiffs in Koll received leave to amend but failed to file an amended petition within the allotted time. Their failure did not affect their right to dismiss, however, because the practice would have been to accept an untimely amendment.[18]
The court of appeals came to a different conclusion in McCroy v. Clarke.[19] The court held that causes of action that are disposed of by a demurrer have been finally submitted. The court acknowledged that Koll held that sustaining a demurrer for failure to state a cause is not a final submission of the action. The court added, however, that McCroy was “sufficiently distinct” from Koll to warrant a different result.[20] The court, however, did not explain what made the cases distinct.
The distinction seems to be that the demurrer in Koll was sustained with leave to amend while the demurrer in McCroy—which was directed at some of the causes of the action in the action—was sustained without leave to amend. If a demurrer—or its contemporary counterpart, a motion to dismiss for failure to state a claim—is sustained with leave to amend, then the claims will go forward.[21] The court’s decision to grant leave to amend in effect sets aside the submission. If the demurrer (or motion to dismiss) is granted without leave to amend, however, the final submission has not been set aside and the claims will not go forward. In other words, the final submission has resulted in a decision disposing of those claims.[22]
The preceding discussion assumes that the submission of a motion to dismiss for failure to state a claim is a final submission of the claims to which the motion is directed. But is it? The answer should be “yes.” The motion requires the court to determine as a matter of law whether the facts as pled entitle the plaintiff to relief.[23] In other words, it is a submission of the action on both the law and the facts. The motion is potentially dispositive because the court could dismiss a claim without leave to amend if it concluded that the defect could not be cured.[24] Such a dismissal would be a decision on the merits.[25]
The court could also dismiss the action if the plaintiff failed to file an amended complaint after having been granted leave to do so. In Koll, the supreme court indicated that the submission of the defendant’s motion to dismiss based on the plaintiffs’ failure to file an amended complaint was a final submission of the action.[26] The same should be true of the initial motion to dismiss because, as discussed above, it is a potentially dispositive motion that goes to the merits of the claim.
Dismissal with Leave of Court
The plaintiff’s right to dismiss an action without prejudice expires at final submission. To dismiss after final submission, the plaintiff must obtain leave of court. It is unlikely, however, that a court would grant a plaintiff leave to dismiss without prejudice while a motion for summary judgment or a motion to dismiss for failure to state a claim was under submission. In fact, it would be an abuse of discretion for the court to grant the plaintiff leave to dismiss if the plaintiff’s reason for dismissing was the fear of an adverse decision.[27]
It is even less likely that a court would grant a plaintiff leave to dismiss without prejudice after the court granted the motion but before the court entered judgment.
To permit a party to dismiss [without prejudice] under such circumstances is, in substance, to grant him a new trial after he has been fairly defeated and to deprive his adversary of the fruits of a fairly won victory. It is contrary to good sense and sound policy to allow a party to take his case from one court to another until fortune favors him with a judge who is willing to accept his view of the law or his construction of the evidence.[28]
Conclusion
The plaintiff’s right to dismiss is an escape hatch that the plaintiff can use when “unforeseen contingencies, accidental omissions, a mistake in procedure or other circumstances unconnected with the merits”[29] undermine the plaintiff’s ability to litigate its case. But that hatch should be closed while the court is considering a potentially dispositive motion that targets the merits of the case. A lawsuit is not a trial run. Once the lawsuit has been submitted for decision on the merits, the court should be allowed to make a decision.
Preferred Citation Format: John P. Lenich, There’s No Escape: The Plaintiff’s Right to Dismiss after the Submission of a Motion for Summary Judgment or a Motion to Dismiss in Nebraska, 1 Neb. L. Rev. Bull. 31 (2009), http://lawreview.unl.edu/?p=507.
FOOTNOTES
0. Ross McCollum Professor of Law, University of Nebraska College of Law↑
1. Neb. Rev. Stat. § 25-601(1) (Reissue 2008). The plaintiff’s right to dismiss pursuant to § 25-601 is “a statutory right” rather than “a matter of judicial grace or discretion.” Koll v. Stanton-Pilger Drainage Dist., 207 Neb. 425, 426, 299 N.W.2d 435, 436 (1980). See also Giesler v. City of Omaha, 175 Neb. 706, 708, 123 N.W.2d 650, 651 (1963) (same); Sutherland v. Shoemaker, 6 Neb. App. 157, 160, 570 N.W.2d 375, 377 (1997) (same). Nevertheless, a court can impose conditions on the plaintiff’s right to dismiss or preclude the plaintiff from exercising that right altogether when “justice and equitable principles so require.” Holste v. Burlington N. R.R. Co., 256 Neb. 713, 730, 592 N.W.2d 894, 907 (1999). See also Kan. Bankers Sur. Co. v. Halford, 263 Neb. 971, 978, 644 N.W.2d 865, 870 (2002) (stating that courts have discretion in deciding whether or not to dismiss an action).↑
2. Schroeder v. Schroeder, 223 Neb. 684, 687, 392 N.W.2d 787, 789 (1986). See Koll, 207 Neb. at 426, 299 N.W.2d at 436; Miller v. Harris, 195 Neb. 75, 78 236 N.W.2d 828, 830 (1975).↑
3. The submission instruction for civil cases can be found at NJI2d Civ. 5.01 (West 2008-09 ed.).↑
4. Gydesen v. Gydesen, 188 Neb. 538, 540-41, 198 N.W.2d 67, 68 (1972).↑
5. Collection Specialists, Inc. v. Veseley, 238 Neb. 181, 186, 469 N.W.2d 549, 552 (1991). See Fronk v. J.H. Evans City Steam Laundry Co., 70 Neb. 75, 77, 96 N.W. 1053, 1054 (1903). If the court requests the parties to file briefs, then final submission occurs when the briefs are filed or, if they were not filed, when the time for filing them expired. Plattsmouth Loan & Bldg. Ass’n v. Sedlak, 128 Neb. 509, 512, 259 N.W. 367, 368-69 (1935).↑
6. Miller, 195 Neb. at 77, 236 N.W.2d at 830.↑
7. Id. at 78, 236 N.W.2d at 830.↑
8. See, e.g., Wolski v. Wandel, 275 Neb. 266, 270-71, 746 N.W.2d 143, 148 (2008) (“Summary judgment is proper when the pleadings and evidence admitted at the hearing disclose no genuine issue regarding any material fact or the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.”); DeWester v. Watkins, 275 Neb. 173, 176, 745 N.W.2d 330, 333 (2008) (same).↑
9. 263 Neb. 971, 644 N.W.2d 865 (2002).↑
10. Id. at 979, 644 N.W.2d at 871. See Neb. Rev. Stat. § 25-603 (Reissue 2008) (stating that the defendant can proceed on its counterclaim even if the plaintiff’s action has been dismissed).↑
11. Kansas Bankers, 263 Neb at 979, 644 N.W.2d at 871.↑
12. Id. at 977, 644 N.W.2d at 870.↑
13. Plattsmouth Loan & Bldg. Ass’n v. Sedlak, 128 Neb. 509, 512, 259 N.W. 367, 368-69 (1935).↑
14. Section 25-601(1) refers to the dismissal of an action. For purposes of § 25-601(1), the term “action” means a claim. See Snyder v. Collier, 85 Neb. 552, 555, 123 N.W. 1023, 1024 (1909) (in action for foreclose of two real estate mortgages, plaintiff had the right to dismiss one of its two causes of action). Therefore, the final submission of a claim is a final submission of the action for purposes of § 25-601(1). If other claims are still pending, the order the court enters as a result of the submission is not necessarily a final judgment. An order that disposes of some but not all of the claims in a case with multiple parties or multiple claims is only a final judgment if the court expressly directs the entry of judgment pursuant to Neb. Rev. Stat. § 25-1315(1) (Reissue 2008).↑
15. Absent an express direction for the entry of judgment, an order that disposes of some but not all of the claims in a case with multiple parties or multiple claims “is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.” § 25-1315(1).↑
16. 207 Neb. 425, 299 N.W.2d 435 (1980).↑
17. Id. at 426-27, 299 N.W.2d at 436.↑
18. Id. at 427, 299 N.W.2d at 436-37.↑
19. No. A-05-1358, 2008 WL 2010280 (Neb. Ct. App. May 6, 2008).↑
20. Id. at *7.↑
21. Cf. Feight v. Mathers, 153 Neb. 839, 842, 46 N.W.2d 492, 494 (1951) (order giving defendants ten days to file amended answer pleading defendants’ counterclaims did not result in a final submission of the case).↑
22. Cf. State ex rel. Burlington & Miss. River R.R. Co. v. Scott, 22 Neb. 628, 640, 36 N.W. 121, 126-27 (1888) (plaintiff could not dismiss mandamus action as a matter of right after court sustained demurrer for failure to state a cause of action, apparently without leave to amend, but before court formally dismissed the action). A motion to dismiss for failure to state a claim can be directed at individual claims in a complaint that contains multiple claims. See John P. Lenich, Nebraska Civil Procedure § 11:7, at 437 (West 2008). An order granting a motion to dismiss one or more but not all of the claims is not a final judgment, although it is the product of a final submission. See supra note 14 and accompanying text.↑
23. See Lenich, supra note 22, § 11:7.↑
24. See id. at § 15:5.↑
25. The dismissal of an action (as opposed to the complaint) for failure to state a claim is a final judgment on the merits. See id. at § 8:7.↑
26. 207 Neb. 245, 427, 299 N.W.2d 435, 437 (1980). The district court in Koll gave the plaintiffs two weeks to file an amended petition. The two weeks passed without the plaintiffs doing so. The defendant subsequently filed a motion to dismiss with prejudice based on the plaintiffs’ failure to file an amended petition. The district court never considered the motion, however. The plaintiffs moved to dismiss without prejudice before the district court heard argument on the defendant’s motion—in other words, before submission of the defendant’s motion.↑
27. See Collection Specialists, Inc. v. Veseley, 238 Neb. 181, 187-88, 469 N.W.2d 549, 552-53 (1991) (district court abused its discretion in allowing plaintiff to dismiss without prejudice after case had been submitted on motion for directed verdict; plaintiff sought dismissal after it realized that the evidence was insufficient under the original petition or the amendment that plaintiff made while the motion for direct verdict was pending).↑
28. Pettegrew v. Pettegrew, 128 Neb. 783, 789, 260 N.W. 287, 289 (1935).↑
29. Plattsmouth Loan & Bldg. Ass’n v. Sedlak, 128 Neb. 509, 511, 259 N.W. 367, 368 (1935).↑