§ 6-1105.Serving and filing pleadings and other documents.

Current version (effective January 1, 2025)

COMMENTS TO § 6-1105 [1] The rule was amended in 2021 to incorporate the Electronic Filing, Service, and Notice System Rules. The rule was amended again in 2024. Some of the amendments made organizational and stylistic changes to make the rule easier to read. Other amendments made substantive changes, which are discussed below. [2] The original version of subpart (a) provided that, except for pleadings that asserted new or additional claims for relief, documents did not need to be served on a party that was in default for failing to appear. The Supreme Court stated that the rule established that “a party in default for failure to appear is not entitled to notice when the plaintiff moves for default judgment.” Cruz-Morales v. Swift Beef Co., 275 Neb. 407, 414 (2008). Nevertheless, almost half of the district courts had local rules that could be read as requiring notice. The Supreme Court subsequently indicated that those local rules superseded the provisions of subpart (a). See Fitzgerald v. Fitzgerald, 286 Neb. 96 (2013). [3] Having local rules that conflict with a statewide rule can cause confusion. To eliminate the potential for confusion, subpart (a) was amended in 2024 to require that motions for a default judgment and notices of hearing for such motions must be served on defaulting parties. The requirement of giving notice to a defaulting party is consistent with the general policy of deciding cases on the merits because it may encourage the defaulting party to seek leave to file a responsive pleading and defend the case on the merits. [4] Subpart (a) originally contained a service provision for actions begun by seizing property. The provision was deleted in 2024 because it did not serve any purpose. The provision was based on Rule 5(a)(3) of the Federal Rules of Civil Procedure, a rule that is primarily aimed at admiralty actions in rem. Those actions cannot be filed in state court, however. Although civil forfeiture actions can be filed in state court, the Nebraska forfeiture statutes specify who must be served and how. [5] Subpart (b)(3) specifies the methods for serving documents that are not filed electronically. One of those methods is service by mail. The provision originally authorized service by first-class mail. The 2024 Amendments deleted “first-class” because the Postal Service now offers a wider range of services, including Priority Mail. The deletion of “first-class” also means that a party now has the option of serving a document by certified mail if it so chooses. [6] The 2024 Amendments also added two additional methods of service. The first additional method is in subpart (b)(3)(E), which provides that a party may serve a document by using a designated delivery service such as Federal Express or UPS. The subpart builds on the statutory provisions that allow the use of a designated delivery service to serve a summons. See Neb. Rev. Stat. § 25-505.01(1)(d). [7] The second additional method is in subpart (b)(3)(F), which provides that a party may serve a document “by any other means . . . that the court authorized . . . .” The method is designed for unusual situations. For example, if the party’s cell phone number is known but the party’s email address and whereabouts are not, the court might authorize service by text messaging. [8] Prior to 2024, the Court Rules of Pleading in Civil Cases and the Court Rules of Discovery in Civil Cases both contained provisions on filing and serving documents. The 2024 Amendments consolidated those provisions in § 6-1105. [9] Section 6-1105(d)(2) provides that discovery documents must not be filed unless they are relevant to a motion or the court orders them to be filed. Although most discovery documents will not fall within the filing exceptions, some will. For example, discovery requests and responses may be filed when they are relevant to a motion to compel or a motion for a protective order. Discovery documents that are relevant to a motion for summary judgment, however, should not be filed. Parties should follow the procedures set out in § 6-1526 and offer the documents as evidence at the hearing.