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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 reasonable inferences in favor of the nonmoving party.

2. Rules of the Supreme Court: Pleadings: Appeal and Error. 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, 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 question 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.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

12/18/2020 12:23 AM CST
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8. Moot Question. The central question in a mootness analysis is whether 

changes in circumstances have forestalled any occasion for meaningful relief.

9. Pleadings: Equity. A prayer for general equitable relief is to be construed 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 pleadings 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 necessary element, the factual allegations, 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.

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 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.

14. Pleadings: Words and Phrases. Pleading facts with particularity means 

the who, what, when, where, and how: the first paragraph of any newspaper 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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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 signatures. 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 petition to the Secretary. According to the complaint, each signature page included a sworn and notarized statement from the 

petition circulator asserting, among other things, 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.’” 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 determination 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 petition if the object had been read to them.

Chaney attached to his complaint 188 affidavits. The affidavits 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 “circulator 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 signatures 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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signatures. The complaint claimed that without the signatures 

of the affiants, the petition was no longer supported by signatures 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 circulators to read the object statement ‘verbatim to each person 

beforehand.’ . . . Rather, ‘it is sufficient that circulators summarize, 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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to his Complaint would not change the allegations in the affidavits 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 granting 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 underlying 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 independent 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 ballot—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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is a justiciability doctrine that can prevent courts from exercising 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 litigation. 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 circumstances 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 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. 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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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 mandamus compelling the Secretary to remove proposed legislative resolutions from the general election ballot because the 

required explanatory statements had been filed after the statutory 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 petition 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 judgment 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’ arguments 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 allegations, 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 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. 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 identified three different theories in his complaint why certain petition signatures should not be given effect. He claimed that signatories 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 affidavits 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 petition signatories to withdraw their signatures by following certain steps. Section 32-632 provides:

Any person may remove his or her name from a petition 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 deadline for removing signatures under § 32-632 was thus sometime 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 withdrawal 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 indication 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 petition 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 withdrawn or declared invalid and thus that the signatures in support 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’ competing 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 petition 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 verbatim 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 statute 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 legislation 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 referendum 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 statutorily 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 participated in or supported the petition process, we would “inject 

ambiguity and make adherence difficult” and “expose the petition 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 precarious” and “expose the petition process to procedural challenges 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 signatures were subject to invalidation because circulators committed fraud and that he adequately alleged the details of such 

fraud. As we evaluate this theory, we must do so under a different 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 particularity.” 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 suggesting 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 information to signatories.

The only factual allegations that even approach the necessary level of particularity are Chaney’s assertions that circulators defrauded the Secretary by asserting that “they stated to 

each signer the object of the petition as printed on the petition.” 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 statement 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 establish 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 failure 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, however, 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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Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

CHANEY v. EVNEN

Cite as 307 Neb. 512

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 statements were not read to signatories. However, we have concluded 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 amendment 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.