Chaney v. Evnen , 307 Neb. 512 ( 2020 )


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    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    CHANEY v. EVNEN
    Cite as 
    307 Neb. 512
    Brian Chaney, appellant, v. Robert B.
    Evnen, in his official capacity
    as Nebraska Secretary of
    State, et al., appellees.
    ___ N.W.2d ___
    Filed October 16, 2020.   No. S-20-660.
    1. Motions to Dismiss: Pleadings: Appeal and Error. 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 rea-
    sonable inferences in favor of the nonmoving party.
    2. Rules of the Supreme Court: Pleadings: Appeal and Error. An appel-
    late court reviews the district court’s denial of a motion to amend under
    Neb. Ct. R. Pldg. § 6-1115(a) for an abuse of discretion. However, an
    appellate court reviews de novo any underlying legal conclusion that
    the proposed amendments would be futile.
    3. Statutes: Appeal and Error. Statutory interpretation presents a ques-
    tion of law, for which an appellate court has an obligation to reach
    an independent conclusion irrespective of the decision made by the
    court below.
    4. Moot Question: Jurisdiction: Appeal and Error. Although mootness
    does not prevent appellate jurisdiction, it is a justiciability doctrine that
    can prevent courts from exercising jurisdiction.
    5. Moot Question. Mootness refers to events occurring after the filing
    of a suit which eradicate the requisite personal interest in the dispute’s
    resolution that existed at the beginning of the litigation.
    6. Actions: Moot Question. An action becomes moot when the issues
    initially presented in the proceedings no longer exist or the parties lack
    a legally cognizable interest in the outcome of the action.
    7. Moot Question: Words and Phrases. A moot case is one which seeks
    to determine a question that no longer rests upon existing facts or
    rights—i.e., a case in which the issues presented are no longer alive.
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    8. Moot Question. The central question in a mootness analysis is whether
    changes in circumstances have forestalled any occasion for meaning-
    ful relief.
    9. Pleadings: Equity. A prayer for general equitable relief is to be con-
    strued liberally and will often justify granting relief in addition to that
    contained in the specific prayer, provided it fairly conforms to the case
    made by the petition and the evidence.
    10. ____: ____. The prayer for general relief in an equity action is as broad
    as the pleadings and the equitable powers of the court sufficient to
    authorize any judgment to which the party is entitled under the plead-
    ings and the evidence.
    11. Motions to Dismiss: Pleadings. To prevail against a motion to dismiss
    for failure to state a claim, a plaintiff must allege sufficient facts to
    state a claim to relief that is plausible on its face. In cases in which
    a plaintiff does not or cannot allege specific facts showing a neces-
    sary element, the factual allegations, taken as true, are nonetheless
    plausible if they suggest the existence of the element and raise a rea-
    sonable expectation that discovery will reveal evidence of the element
    or claim.
    12. Motions to Dismiss: Pleadings: Appeal and Error. When reviewing
    an order dismissing a complaint, an appellate court accepts as true all
    facts which are well pled and the proper and reasonable inferences of
    law and fact which may be drawn therefrom, but not the plaintiff’s
    conclusion.
    13. Constitutional Law: Initiative and Referendum. The right of initia-
    tive is precious to the people and is one which courts are zealous to
    preserve to the fullest tenable measure of spirit as well as letter.
    14. Pleadings: Words and Phrases. Pleading facts with particularity means
    the who, what, when, where, and how: the first paragraph of any news-
    paper story.
    Appeal from the District Court for Lancaster County: Robert
    R. Otte, Judge. Affirmed.
    Scott A. Lautenbaugh, of Law Offices of Scott Lautenbaugh,
    for appellant.
    Douglas J. Peterson, Attorney General, and Ryan S. Post for
    appellee.
    Mark C. Laughlin and Daniel J. Gutman, of Fraser Stryker,
    P.C., L.L.O., for appellees Albert Davis III et al.
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    CHANEY v. EVNEN
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    307 Neb. 512
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Fruedenberg, JJ.
    Per Curiam.
    Brian Chaney filed a lawsuit in which he sought to prevent
    Nebraska voters from amending provisions of the Delayed
    Deposit Services Licensing Act, Neb. Rev. Stat §§ 45-901 to
    45-931 (Reissue 2016 & Cum. Supp. 2018), through a ballot
    initiative measure. Chaney alleged that some individuals who
    signed the initiative petition wished to withdraw their signa-
    tures. He also asserted that certain petition circulators did not
    comply with a Nebraska statute and committed fraud during
    the petition process. The district court dismissed Chaney’s
    lawsuit, and Chaney appeals. Finding no error in the district
    court’s decision, we affirm.
    I. BACKGROUND
    1. Initiative
    This case concerns an initiative measure which, if adopted,
    would establish a statutory cap on the annual percentage rate
    that delayed deposit services licensees may charge. We recently
    decided another case involving this initiative petition. See
    Thomas v. Peterson, ante p. 89, ___ N.W.2d ___ (2020). In
    Thomas, we held that the ballot title prepared by the Nebraska
    Attorney General which referred to delayed deposit service
    licensees as “payday lenders” was not insufficient or unfair.
    See
    id. This case concerns
    the same initiative petition, but
    raises different legal arguments.
    2. Chaney’s Complaint
    On August 31, 2020, Chaney filed a lawsuit naming
    Secretary of State Robert B. Evnen (the Secretary); Albert
    Davis III; Thomas A. Wagoner, Jr.; and Fr. Damian Zuerlein as
    defendants. Davis, Wagoner, and Zuerlein are the sponsors of
    the initiative petition at issue. Chaney identified the action as
    one to enjoin the Secretary from including the petition on the
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    CHANEY v. EVNEN
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    307 Neb. 512
    November 3, 2020, general election ballot, pursuant to Neb.
    Rev. Stat. § 32-1412(2) (Cum. Supp. 2016).
    In the complaint, Chaney alleged that in June 2020, the
    sponsors submitted signatures in support of the initiative peti-
    tion to the Secretary. According to the complaint, each signa-
    ture page included a sworn and notarized statement from the
    petition circulator asserting, among other things, that the circu-
    lator “‘stated to each signer the object of the petition as printed
    on the petition before he or she affixed his or her signature to
    the petition.’” After those signatures were verified by county
    election officials, the Secretary certified on July 31, 2020,
    that all statutory requirements were met to place the initiative
    meas­ure on the November 3 general election ballot.
    Chaney’s complaint did not contest the Secretary’s determi-
    nation that the sponsors submitted sufficient signatures from
    the requisite number of counties as required by article III, § 2,
    of the Nebraska Constitution. Rather, he asserted that 188 of
    the signatories wished to withdraw their signatures or that their
    signatures were otherwise invalid. Chaney alleged that when
    those individuals signed the petition, the petition circulators
    did not read the object of the petition to them. He also alleged
    that each of those individuals would not have signed the peti-
    tion if the object had been read to them.
    Chaney attached to his complaint 188 affidavits. The affida-
    vits are substantially identical, with limited handwritten details
    relevant to each individual affiant including the county in
    which the affiant resided. Each affiant swore that the “circula-
    tor did not read to me the statement regarding the object of
    the petition that I now know was printed on the petition page”
    and that “I would not have signed the petition had the object
    statement been stated to me before the circulator asked for
    my signature.”
    Based on these allegations, Chaney asserted that the signa-
    tures were procured in violation of Neb. Rev. Stat. § 32-628
    (Reissue 2016) and that the circulators committed fraud. He
    also alleged that the 188 affiants wished to withdraw their
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    signatures. The complaint claimed that without the signatures
    of the affiants, the petition was no longer supported by signa-
    tures from the requisite 5 percent of the registered voters in
    38 counties.
    In his prayer for relief, Chaney requested the “issuance of
    a temporary and permanent injunction enjoining the Secretary
    from placing the legally insufficient Petition on the November
    3, 2020 general election ballot.” He also prayed “[f]or such
    other further relief as the Court may deem just and equitable.”
    3. Motions Hearing
    After the filing of the complaint, Chaney filed a motion for
    a temporary injunction. The sponsors filed a motion to dismiss
    for failure to state a claim upon which relief could be granted
    or, in the alternative, a motion for summary judgment. The
    sponsors also filed a motion to continue Chaney’s motion for
    temporary injunction.
    The district court held a hearing concerning the foregoing
    motions on September 8, 2020. At that hearing, counsel for
    Chaney, the Secretary, and the sponsors offered evidence and
    argument concerning the motions.
    4. Dismissal Order
    On September 9, 2020, the district court issued an order
    sustaining the sponsors’ motion to dismiss and overruling
    Chaney’s motion for temporary injunction. The district court
    held that Chaney’s signature withdrawals were untimely and
    that he failed to allege fraud with particularity. In the course of
    concluding that Chaney had not adequately alleged fraud, the
    court reasoned that § 32-628(3) “does not require petition cir-
    culators to read the object statement ‘verbatim to each person
    beforehand.’ . . . Rather, ‘it is sufficient that circulators sum-
    marize, generally, the object or purpose of the petition in a way
    that is not misleading.’”
    In ordering dismissal, the district court further stated that
    Chaney “is not given leave to amend because the amendment
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    to his Complaint would not change the allegations in the affi-
    davits attached therein.”
    II. ASSIGNMENTS OF ERROR
    Chaney assigns, condensed and restated, that the district
    court erred (1) by granting the motion to dismiss and (2) by not
    giving him the opportunity to amend his complaint.
    III. STANDARD OF REVIEW
    [1] An appellate court reviews a district court’s order grant-
    ing 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. Chafin v. Wisconsin Province of
    Society of Jesus, 
    301 Neb. 94
    , 
    917 N.W.2d 821
    (2018).
    [2] An appellate court reviews the district court’s denial of
    a motion to amend under Neb. Ct. R. Pldg. § 6-1115(a) for an
    abuse of discretion. However, we review de novo any under-
    lying legal conclusion that the proposed amendments would
    be futile. Kelly v. Saint Francis Med. Ctr., 
    295 Neb. 650
    , 
    889 N.W.2d 613
    (2017).
    [3] Statutory interpretation presents a question of law, for
    which an appellate court has an obligation to reach an indepen-
    dent conclusion irrespective of the decision made by the court
    below. J.S. v. Grand Island Public Schools, 
    297 Neb. 347
    , 
    899 N.W.2d 893
    (2017).
    IV. ANALYSIS
    1. Mootness
    [4] The Secretary and sponsors contend that we should
    not reach the merits of this appeal because it is now moot.
    They argue that the specific relief Chaney sought in this case
    pursuant to § 32-1412(2)—an order enjoining the Secretary
    from certifying or printing the initiative petition on the bal-
    lot—is no ­longer available because the official ballot has
    been certified and copies of the ballot have been printed.
    Although mootness does not prevent appellate jurisdiction, it
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    is a justiciability doctrine that can prevent courts from exercis-
    ing jurisdiction. Nesbitt v. Frakes, 
    300 Neb. 1
    , 
    911 N.W.2d 598
    (2018). Accordingly, our analysis in this case begins not
    with Chaney’s assignments of error, but with the question of
    whether this case is moot.
    [5-8] Mootness refers to events occurring after the filing
    of a suit which eradicate the requisite personal interest in the
    dispute’s resolution that existed at the beginning of the litiga-
    tion. State ex rel. Peterson v. Ebke, 
    303 Neb. 637
    , 
    930 N.W.2d 551
    (2019). An action becomes moot when the issues initially
    presented in the proceedings no longer exist or the parties lack
    a legally cognizable interest in the outcome of the action.
    Id. A moot case
    is one which seeks to determine a question that
    no longer rests upon existing facts or rights—i.e., a case in
    which the issues presented are no longer alive.
    Id. The central question
    in a mootness analysis is whether changes in circum-
    stances have forestalled any occasion for meaningful relief.
    See
    id. [9,10]
    As noted, the Secretary and the sponsors contend
    this case is moot because the specific relief Chaney requested
    pursuant to § 32-1412(2) can no longer be ordered. But even
    if that relief cannot be granted, it is not the only relief Chaney
    requested. Chaney also requested “such other further relief as
    the Court may deem just and equitable.” We understand this
    language to be a prayer for general equitable relief. Such a
    prayer is to be construed liberally and will often justify grant-
    ing relief in addition to that contained in the specific prayer,
    provided it fairly conforms to the case made by the petition
    and the evidence. Daugherty v. Ashton Feed and Grain Co.,
    Inc., 
    208 Neb. 159
    , 
    303 N.W.2d 64
    (1981). The prayer for
    general relief in an equity action is as broad as the pleadings
    and the equitable powers of the court sufficient to authorize
    any judgment to which the party is entitled under the pleadings
    and the evidence. Sullivan v. General United Life Ins. Co., 
    209 Neb. 872
    , 
    312 N.W.2d 277
    (1981). The relevant question in the
    mootness analysis in this case is thus whether any meaningful
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    relief could be provided in the event Chaney were to prevail.
    We believe the answer to this question is yes.
    The Secretary decides disputed points of election law, but
    those decisions only retain the force of law until changed by
    the courts. See Neb. Rev. Stat. § 32-201 (Reissue 2016). This
    court has previously entertained requests for relief after the
    certification of a ballot initiative but before the election. See,
    Stewart v. Advanced Gaming Tech., 
    272 Neb. 471
    , 
    723 N.W.2d 65
    (2006); State ex rel. Wieland v. Beermann, 
    246 Neb. 808
    ,
    
    523 N.W.2d 518
    (1994). See, also, Neb. Rev. Stat. §§ 32-801
    (Reissue 2016) and 32-402.01 (Reissue 1993) (Secretary shall
    certify issues at least 50 days before general election). And
    in one such case, State ex rel. Wieland v. 
    Beermann, supra
    ,
    we provided relief. There, a citizen sought a writ of manda-
    mus compelling the Secretary to remove proposed legisla-
    tive resolutions from the general election ballot because the
    required explanatory statements had been filed after the statu-
    tory deadline. We granted the writ and then directed removal
    of the measures from the general election ballot just days
    before the election. It is safe to presume that at the time of our
    decision in State ex rel. Weiland, printing of the ballots had
    already begun.
    Although the relief in State ex rel. Wieland arose out of our
    mandamus jurisdiction rather than our appellate jurisdiction,
    it suggests that we could direct the legal removal of the peti-
    tion from the ballot even if we could not direct its physical
    removal. We see no reason why, if Chaney were entitled to
    prevail, we could not do the same here.
    Based on our holding in State ex rel. Wieland, circumstances
    as they now stand have not forestalled any occasion for the
    meaningful relief requested by Chaney. Therefore, dismissal on
    mootness grounds is inappropriate.
    2. Failure to State Claim
    Turning now to the merits of Chaney’s appeal, we begin
    with his various arguments concerning the district court’s
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    dismissal of his complaint for failure to state a claim. On this
    topic, we note that although the parties submitted evidence at
    the hearing on the motion to dismiss, the district court did not
    convert the motion to dismiss to a motion for summary judg-
    ment or consider the evidence submitted by the parties. See
    Neb. Ct. R. Pldg. § 6-1112(b) (if, on motion to dismiss for
    failure to state claim, matters outside pleading are presented
    to and not excluded by court, motion shall be treated as one
    for summary judgment). Chaney, however, does not assign
    error to the district court’s decision to decide the motion to
    dismiss on the pleadings alone, and all of the parties’ argu-
    ments on appeal focus on whether Chaney’s complaint stated a
    claim upon which relief could be granted, rather than whether
    he could withstand summary judgment. We thus confine our
    analysis to the issue of whether Chaney adequately stated a
    claim as well.
    [11,12] In considering whether Chaney stated a claim, we
    apply well-known principles. To prevail against a motion to
    dismiss for failure to state a claim, a plaintiff must allege
    sufficient facts to state a claim to relief that is plausible on
    its face. Schaeffer v. Frakes, 
    306 Neb. 904
    , 
    947 N.W.2d 714
    (2020). In cases in which a plaintiff does not or cannot allege
    specific facts showing a necessary element, the factual allega-
    tions, taken as true, are nonetheless plausible if they suggest
    the existence of the element and raise a reasonable expectation
    that discovery will reveal evidence of the element or claim.
    Id. When reviewing an
    order dismissing a complaint, an appel-
    late court accepts as true all facts which are well pled and the
    proper and reasonable inferences of law and fact which may be
    drawn therefrom, but not the plaintiff’s conclusion. Holloway
    v. State, 
    293 Neb. 12
    , 
    875 N.W.2d 435
    (2016). For purposes of
    a motion to dismiss, a court is not obliged to accept as true a
    legal conclusion couched as a factual allegation, and threadbare
    recitals of the elements of a cause of action, supported by mere
    conclusory statements, do not suffice.
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    As noted in the background section above, Chaney identi-
    fied three different theories in his complaint why certain peti-
    tion signatures should not be given effect. He claimed that sig-
    natories wished to withdraw their signatures, that circulators
    did not comply with § 32-628(3), and that circulators engaged
    in fraud. We will take up each of these theories, beginning
    with Chaney’s claim that the individuals who signed affi-
    davits attached to his complaint wished to withdraw their
    signatures.
    (a) Signature Withdrawal
    Although not mentioned in Chaney’s complaint, a Nebraska
    statute, Neb. Rev. Stat. § 32-632 (Reissue 2016), allows peti-
    tion signatories to withdraw their signatures by following cer-
    tain steps. Section 32-632 provides:
    Any person may remove his or her name from a peti-
    tion by an affidavit signed and sworn to by such person
    before the election commissioner, the county clerk, or
    a notary public. The affidavit shall be presented to the
    Secretary of State, election commissioner, or county clerk
    prior to or on the day the petition is filed for verification
    with the election commissioner or county clerk.
    Relying on this statute, the district court concluded that
    Chaney’s signature withdrawals were untimely. It reasoned that
    Chaney had alleged that the Secretary certified the petition for
    the general election ballot on July 31, 2020, and that the dead-
    line for removing signatures under § 32-632 was thus some-
    time before that date. None of Chaney’s affidavits, however,
    were signed before August 20.
    Section 32-632 allows petition signatories to withdraw their
    signatures and provides no indication that a signatory must
    provide any particular reason in order to effectuate the with-
    drawal of his or her signature. To the extent petition signatories
    wish to have their signature withdrawn simply because they no
    longer wish to support an initiative petition, we conclude that
    they must do so in compliance with § 32-632. If such signature
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    withdrawals could be effectuated outside of § 32-632, the
    restrictions of that section would have no force.
    There is no indication that the 188 individuals who signed
    affidavits attached to Chaney’s complaint complied with
    § 32-632. As the district court observed, those affidavits were
    signed weeks after the Secretary certified the petition for the
    ballot. In addition, Chaney’s complaint also provides no indi-
    cation that those ballots were presented to any of the officials
    specified by § 32-632. Accordingly, we find that the district
    court did not err to the extent it concluded that Chaney did
    not state a claim upon which relief could be granted merely by
    alleging that the individuals who signed affidavits attached to
    his complaint wished to withdraw their signatures.
    In response to the district court’s finding that the signature
    withdrawals were not timely, Chaney argues that the Secretary
    did not make the signed petitions available to him until after
    the petition had been certified for the ballot. He argues that
    the deadline to seek the court’s involvement cannot be before
    the identities of petition signers are made available by the
    Secretary. While the availability of the identities of the peti-
    tion signers may have made it close to impossible for Chaney
    to contact petition signers to inquire about whether they were
    interested in withdrawing their signature, there is nothing
    in our record that suggests signatories were precluded from
    seeking signature withdrawal in compliance with § 32-632. In
    short, Chaney argues that challengers to an initiative petition
    must have the opportunity to obtain the identities of petition
    signers and contact them before the time to withdraw their
    signatures expires. We view this as a policy argument properly
    directed to the Legislature.
    At oral argument, counsel for the Secretary argued that
    § 32-632 is the sole means by which signatures can be with-
    drawn or declared invalid and thus that the signatures in sup-
    port of this initiative petition are not open to challenge even
    if Chaney could show that circulators did not comply with
    § 32-628(3) or engaged in fraud. Chaney argues to the contrary.
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    We find, however, that we need not resolve the parties’ compet-
    ing positions on this issue, because, as we will explain, Chaney
    did not adequately allege that circulators failed to comply with
    § 32-628(3) or engaged in fraud.
    (b) Compliance With
    § 32-628(3)
    Chaney also contends that circulators failed to comply with
    § 32-628(3). In support of this theory, Chaney alleged that peti-
    tion circulators did not read the object statement of the petition
    to his supporting affiants. He argues petition circulators were
    required to do so by § 32-628(3). As we will explain, however,
    we disagree.
    Section 32-628(3) requires that every sheet of a petition
    which contains signatures be accompanied by an affidavit from
    the circulator. The statute provides that the affidavit shall be in
    “substantially the following form” and goes on to list various
    items, including that the circulator “stated to each signer the
    object of the petition as printed on the petition before he or she
    affixed his or her signature to the petition.” § 32-628(3).
    Chaney argues that this language requires the circulator
    to read the object statement of the petition to the signatory
    verbatim. The Secretary and the sponsors counter that a ver-
    batim reading is not required. While they concede that the
    circulator cannot say anything false or misleading, they argue
    this language allows the circulator to summarize the object
    statement.
    In our view, both Chaney on the one hand and the Secretary
    and the sponsors on the other have made plausible arguments
    based on the statutory text. In the end, however, we side with
    the Secretary and the sponsors and conclude that a verbatim
    reading of the object statement is not required. In support
    of this conclusion, we note that the affidavit described in
    § 32-628(3) need not include the exact language of the stat-
    ute but must only be in “substantially the following form.”
    (Emphasis supplied.)
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    [13] While we find that the Secretary and the sponsors
    have the better textual argument, our reading of § 32-628(3) is
    largely informed by the fact that we are interpreting a statute
    pertaining to the exercise of the people’s power of initiative.
    As we have often said, the right of initiative is precious to
    the people and is one which courts are zealous to preserve to
    the fullest tenable measure of spirit as well as letter. See, e.g.,
    Christensen v. Gale, 
    301 Neb. 19
    , 
    917 N.W.2d 145
    (2018). To
    that end, we have also emphasized that statutory provisions
    authorizing initiative petitions should be construed in such
    a manner that the legislative power reserved in the people is
    effectual and should not be circumscribed by restrictive legisla-
    tion or narrow and strict interpretation of the statutes pertaining
    to its exercise.
    Id. We find those
    principles applicable here and
    conclude that requiring petition circulators to read the object
    statement of the petition to each signatory verbatim would be
    a narrow and strict interpretation of § 32-628(3) that could
    unduly restrict the power of initiative.
    We find confirmation of our conclusion from a recent case
    in which we relied on the same principles to resolve a question
    of statutory interpretation related to the initiative and refer-
    endum process. In Hargesheimer v. Gale, 
    294 Neb. 123
    , 
    881 N.W.2d 589
    (2016), the plaintiffs alleged that a referendum
    petition should be removed from the ballot because the statu-
    torily required list of sponsors did not include Governor Pete
    Ricketts. The plaintiffs alleged that Governor Ricketts qualified
    as a sponsor because he contributed money to the referendum
    campaign and supported it publicly. We rejected this argument,
    holding that only those who agreed to assume responsibility
    for the initiative and referendum petition process qualified
    as sponsors.
    In support of our conclusion, we noted that the argument
    urged by the plaintiffs would “tend to restrict the powers of
    initiative and referendum by making compliance with the
    statute more precarious.”
    Id. at 134, 881
    N.W.2d at 597-98.
    We reasoned that if we were to adopt plaintiffs’ reading of
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    “‘sponsoring the petition’” to include individuals who par-
    ticipated in or supported the petition process, we would “inject
    ambiguity and make adherence difficult” and “expose the peti-
    tion process to procedural challenges and the risk of defects
    unrelated to the substance of the petition.”
    Id. at 134, 881
    N.W.2d at 598. Much like the reading urged by the plaintiffs
    in Hargesheimer, we believe that the reading advanced by
    Chaney would “mak[e] compliance with the statute more pre-
    carious” and “expose the petition process to procedural chal-
    lenges and the risk of defects unrelated to the substance of the
    petition.” See 294 Neb. at 
    134, 881 N.W.2d at 598
    .
    Having concluded that petition circulators were not required
    to read the object statement of the petition to signatories,
    we find Chaney’s claim for relief based on a violation of
    § 32-628(3) crumbles. The only way in which Chaney alleges
    that circulators did not comply with § 32-628(3) is by failing
    to read the object statement to signatories.
    (c) Fraud
    [14] This leaves only Chaney’s argument that petition sig-
    natures were subject to invalidation because circulators com-
    mitted fraud and that he adequately alleged the details of such
    fraud. As we evaluate this theory, we must do so under a dif-
    ferent pleading standard. Under our pleading rules, claims of
    fraud are subject to a heightened pleading standard. Our rules
    of pleading provide that “[i]n all averments of fraud, . . . the
    circumstances constituting fraud . . . shall be stated with par-
    ticularity.” Neb. Ct. R. Pldg. § 6-1109(b) (rev. 2008). Pleading
    facts with particularity means the who, what, when, where,
    and how: the first paragraph of any newspaper story. Chafin v.
    Wisconsin Province Society of Jesus, 
    301 Neb. 94
    , 
    917 N.W.2d 821
    (2018). With this standard in mind, we take up Chaney’s
    allegations of fraud.
    The complaint did not make any factual allegations suggest-
    ing that circulators committed fraud on petition signatories, let
    alone plead such details with particularity. The complaint does
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    not allege, for example, any of the “who, what, when, where,
    and how” details concerning the provision of misleading infor-
    mation to signatories.
    The only factual allegations that even approach the neces-
    sary level of particularity are Chaney’s assertions that circula-
    tors defrauded the Secretary by asserting that “they stated to
    each signer the object of the petition as printed on the peti-
    tion.” But Chaney claims this was fraudulent solely because
    circulators did not read the object statement as printed on the
    petition. Chaney’s fraud allegation thus collapses back into his
    argument that a circulator can only “‘state[] to each signer the
    object of the petition as printed on the petition’” by reading
    that statement verbatim. We have concluded that is not the case
    and thus conclude that Chaney has not adequately alleged that
    circulators defrauded the Secretary.
    Boiled to its essence, Chaney’s complaint alleged only
    that certain petition circulators did not read the object state-
    ment of the petition to certain signatories and that signatories
    decided that they wished to withdraw their signatures. As we
    have explained, those allegations, even if true, do not estab-
    lish that the circulators failed to comply with § 32-628(3) or
    that they committed fraud. And, to the extent that individual
    signatories simply decided that they wanted to withdraw their
    signatures, they could do so only through the means set forth
    by the Legislature, not via this lawsuit. Because Chaney’s
    factual allegations, even if true, do not establish a right to the
    relief he seeks, the district court did not err in finding that
    the complaint failed to state a claim upon which relief could
    be granted.
    3. Leave to Amend
    Not Required
    Finally, Chaney claims that the district court erred in not
    allowing him the opportunity to amend his complaint. Chaney
    acknowledges, however, that he never asked that the district
    court grant him leave to amend his complaint. The Secretary
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    and the sponsors argue that the district court could not abuse
    its discretion by declining to grant leave to amend when it was
    not asked to do so.
    A number of federal circuit courts have concluded that a
    trial court cannot abuse its discretion by denying leave to
    amend when it was not requested. See, e.g., U.S. ex rel. Shara
    Ambrosecchia v. Paddock Labs., 
    855 F.3d 949
    (8th Cir. 2017);
    Fletcher-Harlee v. Pote Concrete Contractors, 
    482 F.3d 247
    (3d Cir. 2007); Sinay v. Lamson & Sessions Co., 
    948 F.2d 1037
    (6th Cir. 1991); Coates v. Illinois State Bd. of Ed., 
    559 F.2d 445
    (7th Cir. 1977). We, however, do not appear to have ever
    specifically adopted that rule. And, we have said that “[a]s a
    general rule, when a court grants a motion to dismiss for fail-
    ure to state a claim, a party should be given leave to amend
    absent undue delay, bad faith, unfair prejudice or futility.”
    Eadie v. Leise Properties, 
    300 Neb. 1
    41, 150, 
    912 N.W.2d 715
    ,
    722 (2018).
    But even if we have left open the possibility that a trial court
    could abuse its discretion by dismissing a complaint without
    allowing for amendment in the absence of a request for leave
    to amend, it remains true that, as a practical matter, it will be
    more difficult for a plaintiff to show that the district court has
    abused its discretion by doing so. Without such a request, the
    trial and appellate courts will likely be left to guess at what
    amendments plaintiff might seek to make and thus have no way
    to know whether the problems with the dismissed complaint
    can be cured.
    Hargesheimer v. Gale, 
    294 Neb. 123
    , 
    881 N.W.2d 589
    (2016), illustrates the difficulty of showing that a district court
    erred by not allowing leave to amend when the plaintiffs made
    no request to do so. In that case, the plaintiffs argued that the
    district court should not have dismissed their complaint with
    prejudice, but granted them leave to amend. We noted, how-
    ever, that they did not make a request to amend the complaint
    and that they did not show how an amendment could cure the
    problems with the dismissed complaint.
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    Like the plaintiffs in Hargesheimer, Chaney has not shown
    how an amendment could have cured his failure to state a
    claim upon which relief could be granted. Chaney pled that
    188 petition signatories wished to withdraw their signatures
    because they were procured by fraud and that the object state-
    ments were not read to signatories. However, we have con-
    cluded that the withdrawals were untimely submitted and that
    Chaney’s allegations of fraud, even if they could render the
    withdrawals timely, were based on an incorrect understanding
    and application of § 36-328(3). Upon our review of the record,
    we conclude that Chaney has made no showing how amend-
    ment could have cured these defects.
    Because Chaney neither moved for leave to amend nor
    showed how the defects in his complaint could have been
    cured, the district court did not err by declining to grant him
    leave to amend.
    V. CONCLUSION
    For the reasons we have explained, the district court did
    not err by dismissing Chaney’s complaint or by not providing
    him with the opportunity to amend his complaint. Accordingly,
    we affirm.
    Affirmed.