Muratella v. National Rural Electric Cooperative Association

Filing 9

MEMORANDUM AND ORDER - The defendant's motion to dismiss (filing 4 ) is denied. Pursuant to Rule 12(a)(4)(A), the defendant's answer shall be filed on or before February 10, 2017. Ordered by Judge John M. Gerrard. (GJG)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA CORRINA J. MURATELLA, Plaintiff, 4:16-CV-3168 vs. MEMORANDUM AND ORDER NATIONAL RURAL ELECTRIC COOPERATIVE ASSOCIATION, Defendant. This matter is before the Court on the defendant's partial motion to dismiss (filing 4) pursuant to Fed. R. Civ. P. 12(b)(6). The defendant's motion will be denied. The defendant's entire argument is based on a typographical error in the plaintiff's complaint. See filing 5. The complaint alleges that the defendant "failed to collect or maintain medical information regarding the Plaintiff in separate medical files and [keep] it confidential" contrary to Neb. Rev. Stat. § "1107.02(m)(iii)(B)." Filing 1-1 at 6. The defendant points out that section "1107.02(m)(iii)(B)" does not exist, so the defendant concludes that "any claim asserted by [the plaintiff] under this phantom statute should be dismissed." Filing 5 at 1. The defendant's argument is rather pedantic. It is obvious that the plaintiff was referring to Neb. Rev. Stat. § 48-1107.02 (Cum. Supp. 2016), which was cited in the previous paragraph of the complaint. See filing 1-1 at 6. And a cursory glance at the statute indicates that the plaintiff's claim relies on § 48-1107.02(i)(iii)(B).1 But more importantly, it is the facts alleged in a complaint, and not the legal theories, that state a claim. Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 849 (8th Cir. 2014). The defendant's motion and supporting brief do not address the facts alleged by the plaintiff. See, filing 4; filing 5. There is simply no basis for the defendant's motion to dismiss. Let's move on, and be more circumspect in future filings. To be clear: the Court is not suggesting that the plaintiff has stated a claim for relief pursuant to this subsection—just that a typo in the citation is not fatal to recovery. 1 IT IS ORDERED: 1. The defendant's motion to dismiss (filing 4) is denied. 2. Pursuant to Rule 12(a)(4)(A), the defendant's answer shall be filed on or before February 10, 2017. Dated this 27th day of January, 2017. BY THE COURT: John M. Gerrard United States District Judge -2-

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