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)

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.
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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

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