Opinion
4:04CV3208.
March 11, 2005
MEMORANDUM AND ORDER
As permitted by NECivR 60.1 of our local rules, Defendant has filed a motion for reconsideration of the court's memorandum and order entered on February 25, 2005, denying Defendant's motion for summary judgment. Defendant argues that the court erred in concluding that Plaintiff might bring her retaliation claim under Neb. Rev. Stat. § 20-148, when her complaint does not reference such statute but instead specifies that relief is sought under the Nebraska Fair Employment Practice Act, Neb. Rev. Stat. §§ 48-1101, et seq.
Defendant does not understand the nature of federal pleading practice, which applies in this diversity action. Stated simply, the "theory of the pleading" doctrine has no place under the Federal Rules of Civil Procedure. See 5 Charles Alan Wright Arthur R. Miller, Federal Practice and Procedure § 1219 (3d ed. 2004) (discussing Rules 8(a) and (e), 15(b), and 54(c)). Section 20-148 is strictly a procedural statute, see Goolsby v. Anderson, 549 N.W.2d 153, 157 (Neb. 1996), and, as such, does not need to be referenced in the pleadings before it can be applied by the court (which, incidentally, is required to take judicial notice of all state laws, see Nelson v. J.C. Penney Co., Inc., 75 F.3d 343, 347 (8th Cir. 1996)). In short, Plaintiff's substantive rights under the NFEPA can be enforced by any procedure that is available.
Defendant's motion contains an alternative request for leave "to amend the Order on Final Pretrial Conference to include the issue of whether the Plaintiff has brought a claim pursuant to Neb. Rev. Stat. § 20-148 and, if so, whether such claim is barred by the statute of limitations." The first part of this request will be denied because I have now twice ruled on the issue and do not intend to address it again at trial. However, the second part of the motion will be granted because, as discussed in my previous memorandum and order, both parties were erroneously focusing on exhaustion of administrative remedies and ignoring the pertinent issue of the statute of limitations.
Accordingly,
IT IS ORDERED that Defendant's motion to reconsider, or, in the alternative, motion for leave to amend pretrial order (filing 32), is granted in part and denied in part, as follows:
1. The order on final pretrial conference (filing 30) is hereby amended to include an affirmative defense of the statute of limitations regarding the plaintiff's retaliation claim.
2. In all other respects, the motion is denied.