                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                 INFANTE V. CITY OF HASTINGS


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                               ALMA ROSA INFANTE, APPELLANT,
                                               V.

                       CITY OF HASTINGS, NEBRASKA, ET AL., APPELLEES.


                          Filed November 12, 2019.     No. A-19-211.


       Appeal from the District Court for Adams County: STEPHEN R. ILLINGWORTH, Judge.
Affirmed.
       Terry K. Barber, of Barber & Barber, P.C., L.L.O., for appellant.
       Kari A.F. Scheer and Jerry L. Pigsley, of Woods & Aitken, L.L.P., for appellees.


       MOORE, Chief Judge, and BISHOP and ARTERBURN, Judges.
       ARTERBURN, Judge.
                                       INTRODUCTION
        Alma Rosa Infante appeals from an order of dismissal entered by the district court for
Adams County. The district court found that the seven state law tort claims Infante raised in her
complaint were barred by the statute of limitations and, thus, dismissed her complaint with
prejudice. Infante filed a motion to alter or amend the judgment pursuant to Neb. Rev. Stat.
§ 25-1329 (Reissue 2016), which motion the court denied. On appeal, Infante argues that her
complaint is sufficient under our notice pleading standard and shows that her claims involve an
ongoing course of conduct. She therefore argues that her claims are not barred by the relevant
statute of limitations and that she ought to have been provided an opportunity to amend her
pleading. For the reasons that follow, we affirm.




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                                          BACKGROUND
         According to Infante’s complaint filed on May 17, 2017, a disturbance occurred at a home
in Hastings, Nebraska, to which a number of Hastings police officers responded, including the
named defendants: Rick Schmidt, Raelee Van Winkle, Jerry Esch, Michael Doremus, Kelly
Scarlett, and Allen Sedlak. The disturbance occurred on August 13, 2011. Members of Infante’s
family were involved in the disturbance, and Infante arrived at the home, purportedly in order to
help settle the disturbance. She spoke with several people involved and attempted to determine
what had caused the disturbance. Officers ended up arresting Infante’s nephew, who was charged
with two counts of domestic assault in relation to the disturbance.
         The complaint further alleges that on August 15, 2011, Doremus told an alleged
cooperating witness who was involved in the disturbance, “Maybe if we put pressure on them and
you put enough pressure on them, they’ll get the hell out of this neighborhood.” Infante observed
interviews conducted by the Hastings police officers and was under the impression that they
coached witnesses in order to build a case against her nephew. Infante noted in her complaint that
she and her family members are Hispanic.
         On December 29, 2011, Infante was arrested pursuant to a warrant for conspiracy and
witness tampering. Along with four family members, Infante was charged with felony counts of
conspiracy and witness tampering arising out of the August 13 disturbance. Infante contends that
“her actions were limited to encouraging younger family members and their friends and
acquaintances to be truthful.” While one of Infante’s family members was acquitted after a jury
trial, Infante and her three other family members filed pleas in abatement. On October 5, 2012, the
district court dismissed the charges against Infante, finding that the receipt of only affidavit
evidence during her preliminary hearing in county court was insufficient as live witness testimony
was required.
          Infante has previously filed at least two related cases, not including the present matter. She
filed her first case on October 6, 2014. All prior cases noted in our record were dismissed.
         Infante filed the present complaint against the City of Hastings (the City) and its police
officers on May 17, 2017. She alleged eight causes of action: malicious prosecution, false
imprisonment, negligence, intentional infliction of emotional distress, libel and slander, false light
publicity, acting in concert to engage in false light publicity, and a constitutional violation arising
under 42 U.S.C. § 1983. With respect to timing, Infante alleges in her complaint:
         This case arises out of a course of conduct that began on or about August, 2011, and
         continued at least through October 5, 2012, as well as many other instances of a similar
         vein occurring routinely both before and after those dates, all of which constitute a course
         of conduct.

        On the City’s motion, the case was removed to the federal district court, which denied
Infante’s constitutional claim under 42 U.S.C. § 1983 with prejudice. See Infante v. City of
Hastings, Nebraska, No. 8:17CV3163, 2018 WL 1732155 (D. Neb. Apr. 9, 2018). The federal
district court found that, “[m]uch like her complaints in previous cases based on the same
occurrence,” she again failed in the present matter to allege sufficient facts in support of her claims




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that any constitutional violations were the result of an official City policy, unofficial custom, or
deliberately indifferent failure to train or supervise. The federal district court declined to exercise
supplemental jurisdiction over Infante’s state law claims and therefore remanded the matter to the
district court for Adams County to consider the seven remaining state law claims.
         On May 18, 2018, the City filed a motion to dismiss pursuant to Neb. Ct. R. Pldg.
§ 6-1112(b)(6) and a motion to stay discovery. The City argued that Infante’s seven remaining
state law causes of action were tort claims falling under the Political Subdivisions Tort Claims Act
(PSTCA), Neb. Rev. Stat. §§ 13-901 to 13-928 (Reissue 2012), and therefore barred by the
PSTCA’s 2-year statute of limitations. On August 2, a brief hearing was held on the City’s motions.
         On November 6, 2018, the district court dismissed Infante’s complaint with prejudice. The
court found that Infante’s seven state law claims were subject to the PSTCA’s 2-year statute of
limitations under § 13-919(1). The court further found that Infante alleged no facts after October
5, 2012, meaning her suit filed on May 17, 2017, was barred by the statute of limitations.
         On November 15, 2018, Infante filed a motion to alter or amend judgment pursuant to
§ 25-1329. The district court found no hearing was necessary and overruled her motion on January
28, 2019. Infante now appeals.
                                   ASSIGNMENTS OF ERROR
       Infante assigns that the district court erred in dismissing her complaint for failing to state a
plausible claim of action and in not allowing her to amend her complaint.
                                     STANDARD OF REVIEW
       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. Vasquez v. Chi Properties, 302 Neb. 742, 925 N.W.2d 304 (2019).
       An appellate court reviews a district court’s denial of a motion for leave to amend a
complaint for an abuse of discretion. Eadie v. Leise Properties, 300 Neb. 141, 912 N.W.2d 715
(2018). However, an appellate court reviews de novo an underlying legal conclusion that the
proposed amendments would be futile. Id.
                                             ANALYSIS
Dismissal for Failure to State Claim.
         Infante first argues that the district court erred in granting the City’s motion to dismiss her
complaint for failure to state a plausible claim. She argues that she stated sufficient facts in her
complaint to demonstrate a plausible claim that satisfies our state’s liberal notice pleading
requirements. The City argues in reply that Infante’s claims are time-barred. Alternatively, the
City argues that Infante failed to state a claim upon which relief can be granted. For the reasons
that follow, we find that the district court was proper in dismissing Infante’s action.
         Nebraska is a notice pleading jurisdiction. Burklund v. Fuehrer, 299 Neb. 949, 911 N.W.2d
843 (2018). Civil actions are controlled by a liberal pleading regime; a party is only required to set
forth a short and plain statement of the claim showing that the pleader is entitled to relief and is
not required to plead legal theories or cite appropriate statutes so long as the pleading gives fair



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notice of the claims asserted. Id. The rationale for this liberal notice pleading standard in civil
actions is that when a party has a valid claim, he or she should recover on it regardless of a failure
to perceive the true basis of the claim at the pleading stage. Id.
        Thus, to prevail against a motion to dismiss for failure to state a claim, a plaintiff must
allege sufficient facts, accepted as true, to state a claim to relief that is plausible on its face. Vasquez
v. Chi Properties, supra. Dismissal under § 6-1112(b)(6) should be granted only in the unusual
case in which a plaintiff includes allegations that show on the face of the complaint that there is
some insuperable bar to relief. Vasquez v. Chi Properties, supra. We review the district court’s
determination as to whether the plaintiff has stated a claim de novo, accepting as true all facts that
are well pled and the proper and reasonable inferences of law and fact that may be drawn
therefrom, but not the plaintiff’s conclusions. Id.
        The PSTCA reflects a limited waiver of governmental immunity and prescribes the
exclusive procedure for maintenance of a tort claim against a political subdivision or its officers,
agents, or employees. § 13-902; Reiber v. County of Gage, 303 Neb. 325, 928 N.W.2d 916 (2019).
Where an officer or employee of a political subdivision is sued in his or her individual capacity,
but is acting within the scope of his or her employment as a government official, the PSTCA
applies, and the individual is immune unless the State has expressly waived its sovereign
immunity. Reiber v. County of Gage, supra. In order to sue a public official in his or her individual
capacity, a plaintiff must expressly and unambiguously state so in the complaint; otherwise, it will
be assumed that the defendant is being sued only in his or her official capacity. SID No. 1 v. Adamy,
289 Neb. 913, 858 N.W.2d 168 (2015).
        Under § 13-910(7), the PSTCA does not apply to any claim arising out of assault, battery,
false arrest, false imprisonment, malicious prosecution, abuse of process, libel, slander, or
misrepresentation. The exceptions set forth in § 13-910 are affirmative sovereign immunity
defenses to claims brought pursuant to the PSTCA. Harris v. Omaha Housing Auth., 269 Neb.
981, 698 N.W.2d 58 (2005). Therefore, if a political subdivision proves that a plaintiff’s claim
comes within an exception pursuant to § 13-910, then the claim fails based on sovereign immunity,
and the political subdivision is not liable. Harris v. Omaha Housing Auth., supra.
        Through enactment of § 13-916, the Legislature allowed a political subdivision to waive
immunity to some extent by purchasing liability insurance. City of Lincoln v. County of Lancaster,
297 Neb. 256, 898 N.W.2d 374 (2017). In relevant part, § 13-916 provides that a political
subdivision may purchase insurance covering claims specifically excepted from the PSTCA’s
coverage by § 13-910. Importantly, the procurement of insurance shall constitute a waiver of the
defense of governmental immunity as to those exceptions listed in § 13-910 to the extent and only
to the extent stated in such policy. § 13-916. Under our statute, the terms of the liability policy
determine whether immunity is waived. City of Lincoln v. County of Lancaster, supra.
        In the present case, Infante’s claims fall within the PSTCA because she makes tort claims
against the City and its employees, presumably in their official capacity because she does not
specify otherwise. Some of Infante’s claims are specifically excepted from the PSTCA’s coverage
by § 13-910(7), namely malicious prosecution, false imprisonment, libel and slander, and her false
light claims. Infante’s complaint alleges the existence of liability insurance such that the City
waived immunity under § 13-916. In reviewing this matter on appeal, we accept as true all facts



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that are well pled and the proper and reasonable inference of law and fact that may be drawn
therefrom. Vasquez v. Chi Properties, supra. Therefore, despite no evidence in our record of any
insurance policy obtained by the City, we nevertheless consider as true Infante’s allegation that
the city waived immunity under § 13-916 by virtue of having purchased liability insurance.
        If the City is not immune from Infante’s suit, then her suit must be brought pursuant to the
PSTCA because it provides the exclusive procedure for maintenance of a tort action against a city
or its employees. Accordingly, the PSTCA’s statute of limitations also governs Infante’s suit.
Section 13-919(1) outlines the timing requirements for claims under the PSTCA and states, in
relevant part:
        Every claim against a political subdivision permitted under [PSTCA] shall be forever
        barred unless within one year after such claim accrued the claim is made in writing to the
        governing body. Except as otherwise provided in this section, all suits permitted by the act
        shall be forever barred unless begun within two years after such claim accrued.

Generally, a cause of action accrues and the period of limitations begins to run upon the violation
of a legal right, that is, when the aggrieved party has the right to institute and maintain suit. Weyh
v. Gottsch, 303 Neb. 280, 929 N.W.2d 40 (2019).
         Infante’s allegations center on a “course of conduct” by the City employees that “continued
at least through October 5, 2012.” She alleges no facts that occur after October 5, 2012. Even
though Infante contends that the City’s so-called “course of conduct” falls within the statute of
limitations under the continuing tort doctrine, she offers no support of her general allegation in the
complaint that “many other instances of a similar vein occurred routinely both before and after
those dates.”
         The latest date that Infante makes a facially plausible allegation of the City’s wrongdoing
is October 5, 2012, and, under our standard of review on appeal, we accept this allegation as true.
That means Infante would have needed to begin this action within 2 years of October 5, 2012, in
order to survive the PSTCA’s statute of limitations. However, she did not begin the present action
until filing her complaint on May 17, 2017, meaning her present suit is forever barred by the
PSTCA’s statute of limitations.
         We note for the sake of completeness that, while Infante’s complaint and arguments on
appeal are all predicated on the PSTCA’s applicability, her claims are time-barred even if the
insurance waiver was deemed to remove the case from the time bar specified by the PSTCA. Under
Neb. Rev. Stat. § 25-207 (Reissue 2016), tort claims are subject to a 4-year statute of limitations
unless otherwise specified. See, also, Kant v. Altayar, 270 Neb. 501, 704 N.W.2d 537 (2005)
(intentional infliction of emotional distress); Keith v. Data Enters., 27 Neb. App. 23, 925 N.W.2d
723 (2019) (negligence). Section 25-208 specifies that actions for libel and slander must be brought
within 1 year.
         Because Infante’s suit was not filed until May 17, 2017, more than 4 years after the latest
allegation of the City’s wrongdoing on October 5, 2012, her claims are time barred under even the
lengthiest statute of limitations for her claims if they were not subject to the PSTCA. Therefore,
the district court properly dismissed her suit because there was an insuperable time bar to relief.
We affirm the district court’s order of dismissal.



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Denial of Amendment.
         A district court’s denial of leave to amend pleadings is appropriate only in those limited
circumstances in which undue delay, bad faith on the part of the moving party, futility of the
amendment, or unfair prejudice to the nonmoving party can be demonstrated. Eadie v. Leise
Properties, supra. As 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. Granting leave to amend is consistent with the rationale for the liberal pleading standard
in civil cases discussed above. Id. However, leave to amend should not be granted when it is clear
that the defect cannot be cured by amendment. Id.
         Infante confines her argument on appeal to saying that she “should have been allowed the
opportunity to cure any deficiency in her Complaint.” Brief for appellant at 18; reply brief for
appellant at 11. The most obvious deficiency in her complaint is the absence of facts that bring her
claim filed on May 17, 2017, within the PSTCA’s 2-year statute of limitations. Infante’s claim
arises from a disturbance that occurred on August 13, 2011. She alludes to a course of improper
conduct by Hastings police officers that lasted from the incident on August 13 through her arrest
on December 29 until the dismissal of charges against her and her family members on October 5,
2012. Infante’s filings demonstrate that she can name no further interactions with Hastings police
officers arising out of the August 13, 2011, disturbance that forms the basis of her complaint.
Because Infante’s interactions with Hastings police officers as a result of the disturbance
concluded on October 5, 2012, at the latest, no amendment to her complaint based on that
disturbance could bring her suit within the PSTCA’s 2-year statute of limitations or the statutes of
limitations for ordinary torts, which is a maximum of 4 years. Amendment would therefore be
futile. Accordingly, the district court did not abuse its discretion in overruling Infante’s motion to
alter or amend her complaint, and we affirm.
                                          CONCLUSION
        Based on the foregoing, we affirm the district court’s order dismissing Infante’s complaint.
Infante’s claims fail to survive the relevant statute of limitations, and thus, she fails to state a
plausible claim of action. On the same basis, we further affirm the district court’s denial of
Infante’s motion to alter or amend her complaint.
                                                                                         AFFIRMED.




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