Anthony K. v. StateAnthony K. v. State
Case Information
*1 N ebraska a dvaNce s heets v
on the processing of paperwork and return of her license, in the absence of being specifically told, was not sufficient to warrant the giving of the instruction. We affirm the judgment of the district court, which affirmed the judgment of the county court for Platte County.
a ffirmed .
a NthoNy k. aNd a rva k., iNdividually aNd as guardiaNs aNd Next frieNds oN behalf of their miNor childreN , a shley k. et al ., appellaNts , . s tate of N ebraska et al ., appellees ___ N.W.2d ___ Filed November 21, 2014. No. S-13-446.
1. Jurisdiction: Appeal and Error. The question of jurisdiction is a question of law, which an appellate court resolves independently of the trial court. 2. Motions to Dismiss: Appeal and Error. A district court’s grant of a motion to dismiss is reviewed de novo. 3. Motions to Dismiss: Immunity: Appeal and Error. An appellate court rеviews de novo whether a party is entitled to dismissal of a claim based on federal or state immunity, drawing all reasonable inferences for the nonmoving party.
4.
Summary Judgment: Appeal and Error.
In reviewing a summary judgment, an
appellate court views the evidence in the light most favorable to the party against
whom the judgment was granted, and gives that party the benefit of all reasonable
inferences deducible from the evidence.
5.
Constitutional Law: States: Immunity.
The immunity of states from suit is a
fundamental aspect of the sovereignty which the states enjoyed before ratification
of the federal Constitution and which they retain today.
6.
Actions: States.
It is inherent in the nature of sovereignty for a state not to be
amenable to the suit of an individual without its consent.
7.
Constitutional Law: Legislature: Immunity: Waiver.
that is not necessary to adjudicate the case and controversy before it. Appeal from the District Court for Douglas County: J r ussell d err , Judge. Affirmed.
Amy Sherman, of Sherman & Gilner, P.C., L.L.O., for appellants.
Jon Bruning, Attorney General, and John L. Jelkin for appellees.
h eavicaN , c.J., W right , c oNNolly , s tephaN , m c c ormack , and m iller -l ermaN , JJ., and b ishop , Judge
W right , J.
I. NATURE OF CASE
This action was brought under
Upon the defendants’ motion to dismiss, the district court
concluded that only the State had been properly served and
it dismissed all the remaining defendants for lack of proper
service. At that time, the court also determined that the State
was entitled to sovereign immunity as to the plaintiffs’
II. SCOPE OF REVIEW
[1] The quеstion of jurisdiction is a question of law, which an appellate court resolves independently of the trial court. In re Estate of McKillip , 284 Neb. 367, 820 N.W.2d 868 (2012).
[2] A district court’s grant of a motion to dismiss is reviewed
de novo.
Estate of Teague v. Crossroads Co-op Assn.
, 286 Neb.
1,
[3] We review de novo whether a party is entitled to dis-
missal of a claim based on federal or state immunity, drawing
all reasonable inferences for the nonmoving party.
Michael E.
v. State
,
[4] In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted, and gives that party the benefit of all reasonable inferences deducible from the evidence. Cartwright v. State , 286 Neb. 431, 837 N.W.2d 521 (2013).
III. FACTS 1. J uveNile c ase *3 On February 12, 2000, the plaintiffs left their oldest three minor children, Ashley K.; Anthony K., Jr. (Anthony Jr.); and Ali K., unattended for 1 to 2 hours. Anthony notified authorities that the children had been left alone. Following the incident, the children were removed from the family home by police. During the pendency of the juvenile case involving Ashley, Anthony Jr., and Ali, four other children were born to the plaintiffs. None of the other children were removed from the home and were not the subjects of the juvenile case.
On February 14, 2000, a petition was filed in the Lancaster County Separate Juvenile Court alleging that Ashley, Anthony Jr., and Ali lacked proper parental care by reason of the fault or habits of the plaintiffs. Richard Bollerup was appointed as thе guardian ad litem for the minor children. Eighteen DHHS caseworkers, case managers, or administrators were involved in the case at various times over the next 9 years.
As part of the reunification plan, the court ordered Anthony to undergo intensive outpatient therapy for substance abuse, ordered the family to participate in family therapy, and ordered the plaintiffs to maintain a safe and stable home for the children. The plaintiffs were granted visitation three times a week, which included overnight visits.
On May 25, 2000, the children were placed back in the plaintiffs’ home. Initial case closure was scheduled for April 2001. In March 2001, the plaintiffs wеre evicted from their res- idence. Arva temporarily separated from Anthony and moved into a city mission in Lincoln, Nebraska, with the children. DHHS staff reported at this time that the plaintiffs were not participating in services consistently, Ashley had been late or absent from school, and Anthony had not entered alcohol treat- ment. On March 28, a hearing was held and the juvenile court ordered that the three oldest children be removed from the home and that Anthony be subject to random alcohol screen- ings. The new goal for case closure was set for October 2002, but was later extended to April 2003.
The children continued to remain in out-оf-home placement due to the “‘lack of compliance with the plan as ordered by the Court.’” This included Anthony’s failure to show comple- tion of alcohol treatment and the plaintiffs’ continued need to further demonstrate stability in their living situation. Case closure was extended to September 2003, then to February and December 2004, and finally to March 2005. Each time, the stated reasons were because Anthony failed to show comple- tion of substance abuse treatment and the plaintiffs failed to show a stable living situation.
The plaintiffs attempted to complete the requirements DHHS set forth in its plan for reunification. Anthony com- plеted an alcohol treatment program, but could not produce a certificate for the court because he could not afford to pay the final bill. The continued reasons for out-of-home placement of the three minor children included Anthony’s failing to pro- duce the certificate of completion for his alcohol dependency program and neither Anthony’s nor Arva’s having a valid *4 driver’s license, as well as the plaintiffs’ not having a big enough car for all their children, not participating in therapy to DHHS’ satisfaction, and not complying with the plan for reunification. Anthony continually tested negative for drugs and alcohol, although he was cited for driving while under the influence.
In July 2005, the plaintiffs attended a meeting with Todd Reckling and Chris Peterson, administrators at DHHS. At the meeting, Reckling and Peterson apologized for the length of time for the case and informed the plaintiffs that they needed to act quickly to reunify their family or the Lancaster County Attorney was going to file a motion to terminate their paren- tal rights. On July 14, the Lancaster County Attorney filed a motion to terminate the plaintiffs’ parental rights. DHHS employees recommended that the children be returned to the family home.
In 2006, a Foster Care Review Board report recommended reunification, noting that “‘cаse manager turnover, changes in visitation schedules and in the permanency objective being sought appear[ed] to have been more detrimental to the chil- dren than if reunification had occurred’” and that those issues had “‘as much impact on the children’s prolonged time in care as the parent’s lack of progress.’” However, it also noted that the plaintiffs’ lack of participation in services had contributed to the children’s remaining in out-of-home placement.
In 2006, Ashley, Anthony Jr., and Ali were sent to South Carolina to live with their grandparents. The plaintiffs initially agreed to a guardianship with the grandparents, but later did not agrеe to the guardianship, stating they were pressured into agreeing to it. DHHS staff advised the plaintiffs at that time that DHHS would seek to terminate their parental rights.
On March 14, 2008, DHHS noted that the guardianship with the grandparents was no longer the permanency objec- tive and requested that the county attorney refile for termina- tion of parental rights as to Ashley, Anthony Jr., and Ali. The juvenile court found that grounds for termination did not exist and ordered the children returned to their parents and the case closed. The plaintiffs and their four other children moved to South Carolina to be closer to the three oldest children. In November 2008, Ashley, Anthony Jr., and Ali were formally plаced in the care of the plaintiffs.
N ebraska a dvaNce s heets
2. p rocedural h istory
The plaintiffs filed the present lawsuit on February 5, 2010.
In it, they named as defendants the State; DHHS; 18 DHHS
employees who were assigned at various times to Ashley,
Anthony Jr., and Ali’s juvenile case as caseworkers, case man-
agers, or administrators; and the children’s guardian ad litem.
The case was brought pursuant to
On April 22, 2010, the plaintiffs filed 18 praecipes for sum- mons with the clerk of the district court for service of sum- mons upon the DHHS employees at DHHS. The plaintiffs filed a praecipe for summons via certified mail for service upon DHHS at 301 Centennial Mall South, Lincoln, Nebraska 68509, and a praecipe for service upon Attorney General Jon Bruning at 2115 State Capitol, Lincoln, Nebraska 68509. They were unable to locate the guardian ad litem and moved for alternative service. The record is unclear whether the motion for alternative service was sustained or overruled, but there is no indication that the guardian ad litem was ever sеrved in this case, and he did not enter an appearance.
On May 3, 2010, the certified mail for DHHS and the DHHS employees was received and signed for at DHHS. The certified mail receipts were signed for by John Hayden, a DHHS employee whose duty was to sign for and receive all certified mail addressed to DHHS. Hayden did not conduct an investigation whether each individual named on the certi- fied mail was actually an employee of DHHS, and he had no personal knowledge whether the named individual actually received the certified mail for which he had signed a receipt. Hayden was not an agent for any of the DHHS employees, did nоt reside with them, and was not one of their fam- ily members.
On May 3, 2010, only 3 of the 18 DHHS employees, Kee- Sha Adams-Parks, Charlie Bennett, and Reckling, were still employed by DHHS. Adams-Parks, Bennett, and Reckling did not receive the summons and did not know they had been sued in their individual capacities.
On June 3, 2010, the State moved to dismiss all of the State defendants, including the State, DHHS, and the DHHS employees, based on lack of subject matter jurisdiction, lack of personal jurisdiction, lack of proper service of process, and failure to state a claim upon which relief could be granted.
On January 7, 2011, the district court sustained the motion to dismiss the State on causes of aсtion one and two. It sus- tained the motion to dismiss DHHS and the DHHS employees in their official capacities due to lack of proper service. It sustained the motion to dismiss all the DHHS employees in their individual capacities (except Adams-Parks, Bennett, and Reckling) because they were no longer employees at DHHS.
On January 25, 2011, the district court supplemented its pre-
vious order. It determined the State was protected from suit by
sovereign immunity. It found that the State and DHHS could
not be liable for monetary damages under
The district court then addressed DHHS’ and the DHHS
employees’ motion to dismiss for lack of proper service. It
determined it lacked jurisdiction over DHHS and the DHHS
employees in their official capacities, because the plaintiffs
failed to properly serve them. It concluded that the plain-
tiffs were required to send a summons for DHHS and each
of the DHHS employees to the Attorney General in order to
gain jurisdiction over them as required by
The district court found that it lacked jurisdiction over 15
of the DHHS employees in their individual capacities, because
they no longer worked for DHHS as of May 3, 2010, the date
the summons were received at DHHS. Because Hayden, the
DHHS employee who signed the certified mail receipts, had
no personal knowledge whether the DHHS employees named
in the plaintiffs’ complaint still worked at DHHS, was not
a member of their personal households, did not reside with
them, and had not been appointed or otherwise designated as
an agent to receive personal mail for them, service by certi-
fied mail at DHHS was not proper. It dismissed the 15 DHHS
employees in their individual capacities who no longer worked
at DHHS. But the court withheld determination on Adams-
Parks, Bennett, and Reckling pending a hearing to determine
if certified mail sent to DHHS was reasonably calculated to
provide them with notice that they had been sued in their indi-
*7
vidual capacities. See
Doe v. Board of Regents
,
At this point, the remaining defendants were the State as to the third through sixth causes of action and Adams-Parks, Bennett, and Reckling in their individual capacities.
On June 27, 2011, the district court held a hearing to deter- mine whethеr the three remaining DHHS employees had been properly served in their individual capacities. The court found that the method the plaintiffs used did not properly serve Adams-Parks, Bennett, and Reckling and was not reasonably calculated to notify them that they had been sued in their indi- vidual capacities. The court dismissed Adams-Parks, Bennett, and Reckling. At this point, only the State remained as a defend ant as to causes of action three through six.
On October 31, 2012, the State moved for summary judg-
ment on causes of action three through six. Those issues
included whether the plaintiffs had standing to challenge the
constitutionality of
The district court sustained the State’s motion for summary
judgment. It again held that the State had not waived its sover-
eign immunity from suit under
On May 17, 2013, the plaintiffs filed this timely appeal. We
moved the case to our docket on our own motion. See
IV. ASSIGNMENTS OF ERROR
The plaintiffs assign that the district court erred in (1) grant- ing DHHS’ and the DHHS employees’ motion to dismiss on the basis of failure to properly serve, (2) finding that the State was entitled to sovereign immunity, (3) failing tо find any exception to immunity protection, and (4) finding that they lacked standing to challenge the constitutionality of two stat- utes and that the issues were moot.
V. ANALYSIS 1. dhhs aNd dhhs e mployees ’ m otioN to d ismiss We first consider whether DHHS and the DHHS employ- *8 ees in their official capacities were properly served and then
N ebraska a dvaNce s heets
discuss service upon the DHHS employees in their individ- ual capacities.
(a) Service on DHHS and DHHS
Employees in Their
Official Capacities
It is undisputed that the plaintiffs properly served the State by serving summons on the Attorney General by certified mail. The plaintiffs argue that by properly serving the State at the Attorney General’s office, they also satisfied the statu- tory requirements to serve DHHS and the DHHS employees in their official capacities. The plaintiffs claim that service of one summons and one complaint on the Attorney General was sufficient to serve the State, DHHS, and the DHHS employees in their official capacities, because the statute does not require that the summons list each separately named defendant. They claim that serving the Attorney General with the complaint was sufficient notice to the State, because all the defendants were distinctly named in the complaint. And they assert that including each defendant’s name in the sum- mons would only duplicate the notice the State received. We disagree.
The plaintiffs were required to send a separate summons and
complaint to the Attornеy General for each party to be served.
The purpose of
In order to properly serve DHHS and the 18 DHHS employ-
ees in their official capacities, the plaintiffs had to request a
separate summons and complaint for each defendant and send
all the summonses and complaints to the Attorney General.
The plaintiffs did not do so. They served a single summons on
Attorney General Bruning via certified mail at his office in the
State Capitol. The summons was addressed only to Bruning
as the Attorney General and did not list DHHS or any of the
DHHS employees. No summons or complaint was served on
the Attorney General for any of those defendants as required
by
By failing to serve separate summons on DHHS and the DHHS employees in their official capacities through the Attorney General, the plaintiffs failed to serve those defend- ants. The district court correctly determined that service on DHHS and the DHHS employees in their official capacities was not proper and dismissed them from the suit.
(b) Service on DHHS Employees in Their Individual Capacities Eighteen DHHS employees were named in the plaintiffs’ complaint. As of May 3, 2010, when the summons were received at DHHS, 15 of them no longer worked for DHHS. Only Adams-Parks, Bennett, and Reckling still worked for DHHS. The plaintiffs served all 18 DHHS employees in their individual capacities via certified mail at DHHS.
The plaintiffs do not claim that the 15 DHHS employees who no longer worked at DHHS at the time of service were properly served. The service method would not notify thеm they had been sued in the underlying lawsuit. The district court did not err in dismissing these 15 DHHS employees in their individual capacities.
The question remains whether Adams-Parks, Bennett, and Reckling were properly served via certified mail at their place of employment. The plaintiffs argue that certified mail to Adams-Parks’, Bennett’s, and Reckling’s employment address was all that was required to effectuate proper service. The *10 State argues that serving the summons on these employees via certified mail at their place of employment was not reasonably calculated to apprise employees of the pendency of the action and that the three DHHS employees who still worked at DHHS never received the summons.
Because the DHHS employees were sued in their individual
capacities,
The 18 summons were received by DHHS. Hayden, an employee of DHHS, signed the certified mail receipts for all of the DHHS employees. He did so as part of his duties to sign for certified mail addressed to DHHS. But Hayden was not an appointed agent or an otherwise designated agеnt of any of the defendants, was not one of their family members, and did not reside with any of the defendants. He testified that he did not know whether any of the named individuals received the mail for which he signed certified mail receipts.
Once the certified mail was signed for by Hayden, it is unclear where the mail was sent. But the evidence established that Adams-Parks, Bennett, and Reckling did not receive the certified mail and did not know about the summons until almost a year later.
We conclude that service by certified mail at DHHS was not “reasonably calculated to notify the defendants, in their individual capacities, of the lawsuit.” See Doe , 280 Neb. at 496, 788 N.W.2d at 272. The plaintiffs elected to serve the defendants by certified mail at their place of employment. Although they were entitled to elect the method of service, they bore the risk that the method was not reasonably calcu- lated to provide notice to the individual that he or she had been served. Hayden did not know whether Adams-Parks, Bennett, or Reckling worked for DHHS. He was not authorized to sign for their certified mail, and they did not receive the summonses. DHHS was the largest state agency of the State of Nebraska at the time the lawsuit was filed and employed nearly 6,100 employees located across the state. The method *11 of service by certified mail at DHHS was not reasonably calculated to notify Adams-Parks, Bennett, and Reckling that they had been sued in their individual capacities. The district court properly dismissed all 18 DHHS employees in their individual capacities.
2. s tate ’ s m otioN to d ismiss
The State moved to dismiss all six of the plaintiffs’ causes
of action against it. The district court sustained the State’s
motion as to the plaintiffs’ first and second causes of action,
because it concluded that the State had not waived its sovereign
immunity as to
We review de novo whether a party is entitled to dismissal of a claim based on federal or state immunity, drawing all reason- able inferences for the nonmoving party. Michael E. v. State , 286 Neb. 532, 839 N.W.2d 542 (2013). Upon our de novo review, we find that the district court should have dismissed all six of the plaintiffs’ causes of action against the State.
(a) State Has Not Waived
Sovereign Immunity
[5,6] The immunity of states from suit is a fundamental
aspect of the sovereignty which the states enjoyed before
ratification of the Constitution and which they retain today.
Northern Ins. Co. of N. Y. v. Chatham County, Ga.
, 547 U.S.
189, 126 S. Ct. 1689, 164 L. Ed. 2d 367 (2006), citing
Alden
v. Maine
, 527 U.S. 706, 119 S. Ct. 2240, 144 L. Ed. 2d 636
(1999). It is inherent in the nature of sovereignty for a state not
to be amenable to the suit of an individual without its consent.
Seminole Tribe of Fla. v. Florida
,
[7]
But Nebraska has not waived its sovereign immunity with
regard to
N ebraska a dvaNce s heets
(b) Exemption to Immunity
Protection Not Applicable
The plaintiffs argue that even though the State did not wаive
its sovereign immunity, it was nonetheless subject to liability
in this instance because DHHS was implementing an unconsti-
tutional “‘policy statement, ordinance, regulation or decision
officially adopted’” and acting “‘pursuant to governmental
“custom.”’” Brief for appellants at 23. Their argument relies
upon
Monell v. New York City Dept. of Social Services
, 436
U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), and
Poor
Bear v. Nesbitt
,
In
Monell
, 436 U.S. at 694, the Supreme Court held that
local municipalities could be liable for damages under
The plaintiffs argue that this exception to immunity applies to the State. We disagree. This exception to immunity applies only to local governments аnd not to State governments. The Supreme Court in Monell stated, “Our holding today is, of course, limited to local government units which are not considered part of the State for Eleventh Amendment pur- poses.” 436 U.S. at 690 n.54. The court in Poor Bear, supra , also limited its holding only to local governing bodies. The *13 plaintiffs do not cite to any authority that extends this excep- tion to state governments.
(c) Immunity Barred All
Six Causes of Action
The district court concluded that sovereign immunity barred
only those causes of action against the State in which the plain-
tiffs’ requested monetary damages. This decision was consist-
ent with
Michael E. v. State
, 286 Neb. 532, 541, 839 N.W.2d
542, 551 (2013), in which we stated that “in an action brought
under
But in the absence of a waiver, sovereign immunity bars
all
suits against the State, “regardless of the relief sought.” See
Kentucky v. Graham
,
To the extent our statement in
Michael E.
can be interpreted
as suggesting that the State can be sued under
The district court erred in not dismissing all of the plaintiffs’
causes of action upon the State’s motion to dismiss, because
they were all barred by sovereign immunity and because the
State cannot be sued under
4. s taNdiNg aNd m ootNess
[8] The district court found that the plaintiffs did not have
standing to bring their three causes of action challenging
the constitutionality of
VI. CONCLUSION
The district court properly dismissed DHHS and the DHHS
employees in their official and individual capacities for lack
of proper service of process. The court correctly determined
that sovereign immunity barred the plaintiffs’ claims against
the State for monetary damages under
a ffirmed c assel , J., not participating.