Ramaekers v. Creighton University

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
RAMAEKERS v. CREIGHTON UNIVERSITY
Cite as 320 Neb. 478
Lauren Ramaekers et al., appellants, v.
Creighton University, a Nebraska
nonprofit corporation, appellee.
___ N.W.3d ___
Filed December 12, 2025. 	No. S-24-407.
1. Motions to Dismiss: Rules of the Supreme Court: Pleadings: Appeal
and Error. A district court’s grant of a motion to dismiss for failure
to state a claim under Neb. Ct. R. Pldg. § 6-1112(b)(6) is reviewed de
novo, accepting all the allegations in the complaint as true and drawing
all reasonable inferences in favor of the nonmoving party.
2. Rules of the Supreme Court: Pleadings: Appeal and Error. An appel-
late court reviews a 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. Moot Question. Mootness refers to events occurring after the filing of a
suit that eradicate the requisite personal interest in the dispute’s resolu-
tion that existed at the beginning of the litigation.
4. 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.
5. Moot Question. The central question in a mootness analysis is
whether changes in circumstances have forestalled any occasion for
meaningful relief.
6. Moot Question: Dismissal and Nonsuit. A moot case is subject to
dismissal.
7. Motions to Dismiss: Pleadings. To prevail against a motion to dis-
miss for failure to state a claim, a plaintiff must allege sufficient facts,
accepted as true, to state a claim to relief that is plausible on its face.
8. ____: ____. A motion to dismiss should be granted only in the unusual
case in which a plaintiff includes allegations that show on the face of the
complaint that there is some insuperable bar to relief.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/18/2026 12:57 AM CDT

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
RAMAEKERS v. CREIGHTON UNIVERSITY
Cite as 320 Neb. 478
9. Contracts: Parties: Intent. An implied contract arises where the inten-
tion of the parties is not expressed in writing but where the circum-
stances are such as to show a mutual intent to contract.
10. ____: ____: ____. The determination of the parties’ intent to make a
contract is to be gathered from objective manifestations—the conduct
of the parties, language used, or acts done by them, or other pertinent
circumstances surrounding the transaction. If the parties’ conduct is
sufficient to show an implied contract, it is just as enforceable as an
express contract.
11. Contracts: Intent. As a general matter, the terms of an implied con-
tract are a question of fact to be determined by the jury based on the
evidence presented.
12. Appeal and Error. Alleged errors of the lower court must be both spe-
cifically assigned and specifically argued in the brief of the party assert-
ing the errors to be considered by an appellate court.
13. Conversion: Words and Phrases. Conversion is any unauthorized
or wrongful act of dominion exerted over another’s property which
deprives the owner of his property permanently or for an indefinite
period of time.
14. Conversion: Pleadings. In an action for conversion, the plaintiff must
allege facts showing a right to immediate possession of the property at
the time of the conversion.
15. Consumer Protection: Intent. The Consumer Protection Act, Neb.
Rev. Stat. §§ 59-1601 to 59-1622 (Reissue 2021), was intended to be an
antitrust measure to protect Nebraska consumers from monopolies and
price-fixing conspiracies.
16. ____: ____. The purpose of the Consumer Protection Act is to provide
consumers with protection against unlawful practices in the conduct of
any trade or commerce which directly affects the people of Nebraska.
17. Pleadings: Rules of the Supreme Court. Where leave to amend is
sought before discovery is complete and before a motion for summary
judgment has been filed, leave to amend should be denied as futile only
if the proposed amendment cannot withstand a motion to dismiss under
Neb. Ct. R. Pldg. § 6-1112(b)(6).
18. Pleadings. Leave to amend should not be granted when it is clear that
the defect cannot be cured by amendment.
Appeal from the District Court for Douglas County: Marlon
A. Polk, Judge. Affirmed in part, and in part reversed and
remanded for further proceedings.

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
RAMAEKERS v. CREIGHTON UNIVERSITY
Cite as 320 Neb. 478
Robert M. Sullivan, of Sullivan Law, P.C., L.L.O., for
appellants.
William F. Hargens, Abigail M. Moland, and Britni A.
Summers, of McGrath, North, Mullin & Kratz, P.C., L.L.O.,
for appellee.
Funke, 	C.J., 	Miller-Lerman, 	Cassel, 	Stacy, 	Papik,
Freudenberg, and Bergevin, JJ.
Funke, C.J.
I. INTRODUCTION
During 	the 	COVID-19 	pandemic, 	Creighton 	University
(Creighton) imposed a vaccine mandate on all its students.
The appellants are Creighton students, all but one of whom
declined to receive the vaccine by the appointed deadline,
which resulted in their unenrollment from Creighton. The
students brought suit, alleging claims for breach of contract,
due process violations, conversion, negligence, and viola-
tions of Nebraska’s Consumer Protection Act (NCPA). 1 The
district court for Douglas County dismissed their allegations
with prejudice for failure to state a claim, and the students
appealed. We conclude that the students have stated plau-
sible claims for breach of an implied contract and conver-
sion. Otherwise, we find no merit to the students’ remaining
claims. Accordingly, we reverse the district court’s decision
and remand the cause for further proceedings on the breach of
contract and conversion claims but affirm the district court’s
decision on all other matters.
II. BACKGROUND
Before we begin, we make a procedural and factual note.
This matter is before us on a motion to dismiss. During the
hearing on the motion to dismiss, however, the parties offered
1 Neb Rev. Stat. §§ 59-1601 to 59-1622 (Reissue 2021).

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
RAMAEKERS v. CREIGHTON UNIVERSITY
Cite as 320 Neb. 478
evidence outside of the scope of the pleadings, which is inap-
propriate on a motion to dismiss. 2 As a result, Creighton now
argues that the motion was converted into one for summary
judgment and that, therefore, on our review, we should con-
sider matters outside of the pleadings. Creighton mentions a
variety of such materials in its brief.
In this case, we see no reason to consider this matter as
anything other than a motion to dismiss. The district court’s
order gave no indication that it treated the matter as a motion
for summary judgment. To the contrary, the order described the
matter as a motion to dismiss and captioned its order accord-
ingly. The parties’ filings on the matter also all referenced
a motion to dismiss. As such, we decline to consider facts
outside of those alleged in the pleadings or in the materials
incorporated thereby, and the following recitation of the facts
comports accordingly.
1. Creighton’s Vaccine Policy
On May 26, 2021, Creighton issued a statement indicating
that, effective July 7, 2021, it would require all students to
be vaccinated against COVID-19. This statement added the
COVID-19 vaccination to the list of mandatory vaccines stu-
dents were required to receive, including vaccines for measles,
mumps, and rubella. The students were also informed that they
could not register for classes or housing until proof of vaccina-
tion had been provided.
2 See DMK Biodiesel v. McCoy, 285 Neb. 974, 980, 830 N.W.2d 490, 496
(2013) (“[f]or purposes of a motion to dismiss, ‘“the court generally must
ignore materials outside the pleadings, but it may consider some materi-
als that are part of the public record or do not contradict the complaint,
as well as materials that are necessarily embraced by the pleadings”’”).
See, also, Trausch v. Hagemeier, 313 Neb. 538, 550, 985 N.W.2d 402,
413 (2023) (“[b]ecause a motion to dismiss under [Neb. Ct. R. Pldg.]
§ 6-1112(b)(6) tests the legal sufficiency of the complaint, not the claim’s
substantive merits, a court may typically look only at the face of the com-
plaint to decide a motion to dismiss”).

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
RAMAEKERS v. CREIGHTON UNIVERSITY
Cite as 320 Neb. 478
Creighton’s policy did not permit religious exemptions but
allowed students to request a medical exemption. Students
could also request an exemption due to the “Emergency Use
Authorization” (EUA) status of the vaccine, although that
exemption would be valid only until the U.S. Food and Drug
Administration (FDA) approved a vaccine. To receive an EUA
exemption, students had to sign a form agreeing with the state-
ment “I am requesting to decline the COVID-19 vaccination
until it has full approval by the [FDA] at which time I agree to
meet this requirement within 6-8 weeks.”
On August 23, 2021, the FDA approved the Pfizer vaccine.
Thereafter, Creighton mandated through correspondence that
all students, including those who had received EUA exemp-
tions, receive the first dose of the vaccine by 4:30 p.m. on
September 7. In this correspondence, Creighton informed stu-
dents that they could (1) be vaccinated, (2) withdraw from
Creighton prior to September 7, or (3) wait for Creighton to
administratively withdraw them.
2. Appellants
The appellants were all students at Creighton at the time
of the vaccine mandate. The students maintained religious
objections to receiving the vaccine. The record contains signed
EUA exemptions from four of the students, but it is unclear
from the record whether the other students also submitted such
a form.
In response to Creighton’s actions, several students declined
to receive the vaccine. As a result, on September 9, 2021, those
students were unenrolled and barred from campus. Creighton
also placed a hold on their student accounts, preventing them
from accessing their transcripts. One student, Kristin Hultgren,
did receive the vaccine but subsequently experienced long-
lasting negative side effects. She was given a medical exemp-
tion from receiving the second dose of the vaccine. Yet another
student opted to voluntarily withdraw from Creighton prior to
the September 7 deadline.

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
RAMAEKERS v. CREIGHTON UNIVERSITY
Cite as 320 Neb. 478
3. Procedural History
(a) Injunctive Relief
Just prior to the 4:30 p.m. deadline on September 7, 2021,
several students filed a motion seeking to enjoin Creighton
from unenrolling the students who chose not to be vaccinated.
The complaint initially alleged only claims for breach of con-
tract and unjust enrichment.
Ultimately, the court denied injunctive relief. In doing so,
it found that to the extent there was a contract between the
parties, the contract included the EUA agreements. As such,
the court concluded that the students had breached the con-
tract by failing to be vaccinated once the FDA approved the
Pfizer vaccine. The court also found that the students had
not shown any irreparable harm or a likelihood of success on
the merits.
The students appealed. This court heard the matter, but
determined that, because of the lack of a final, appealable
order, we were without jurisdiction over the case. 3 As such, the
appeal was dismissed.
(b) Operative Complaint
Following our decision, several related actions by the stu-
dents were consolidated, resulting in the configuration of
appellants currently party to this action, and the operative
complaint was filed. That complaint alleged five causes of
action: (1) breach of implied contract, (2) violation of due
process, (3) conversion, (4) negligence, and (5) violations of
the NCPA.
(c) Subsequent Proceedings
In response, Creighton filed a motion to dismiss or, alterna-
tively, for a more definite statement. The district court granted
3 See, Ramaekers v. Creighton University, 312 Neb. 248, 978 N.W.2d 298
(2022).

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Nebraska Supreme Court Advance Sheets
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RAMAEKERS v. CREIGHTON UNIVERSITY
Cite as 320 Neb. 478
Creighton’s motion and dismissed the complaint with preju-
dice. In doing so, the court provided no reasoning and stated
only that “[h]aving considered the evidence as appropriate and
the briefs of the parties, [it] finds that [Creighton’s] Motion to
Dismiss should be, and hereby is, granted.”
The students filed a motion for a new trial and sought leave
to amend the complaint to make it more definite and certain.
The court denied this motion, again stating only that “[h]aving
considered the arguments of the parties and being fully advised,
[the motion] is hereby overruled and denied.”
The students appealed, and we moved the matter to our
docket. 4
III. ASSIGNMENTS OF ERROR
The students assign, restated, that the district court erred
in (1) granting Creighton’s motion to dismiss their complaint
with prejudice for failure to state a claim and (2) denying their
request to file an amended complaint.
IV. STANDARD OF REVIEW
[1] A district court’s grant of a motion to dismiss for fail-
ure to state a claim under Neb. Ct. R. Pldg. § 6-1112(b)(6) is
reviewed de novo, accepting all the allegations in the com-
plaint as true and drawing all reasonable inferences in favor of
the nonmoving party. 5
[2] An appellate court reviews a 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 amend-
ments would be futile. 6
4 Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2024).
5 Anderson v. Wells Fargo Fin. Accept., 269 Neb. 595, 694 N.W.2d 625
(2005).
6 Sinu v. Concordia University, 313 Neb. 218, 983 N.W.2d 511 (2023).

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
RAMAEKERS v. CREIGHTON UNIVERSITY
Cite as 320 Neb. 478
V. ANALYSIS
1. Mootness
In April 2022, after the facts of this case were already
developed, Creighton changed its vaccine policy to accom-
modate religious exemptions. Accordingly, Creighton now
asserts that the students’ claims are moot because, based
on its new vaccine policy, the students could “stay enrolled
or reenroll at Creighton without obtaining the COVID-19
vaccine.” 7 Indeed, Creighton points out that several of the
students did, in fact, return and have since graduated from
Creighton. Thus, we must first determine whether Creighton’s
change in policy has rendered this appeal moot. We conclude
that it has not.
[3-6] Mootness refers to events occurring after the filing of
a suit that eradicate the requisite personal interest in the dis-
pute’s resolution that existed at the beginning of the litigation. 8
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. 9 The central
question in a mootness analysis is whether changes in circum-
stances have forestalled any occasion for meaningful relief. 10
A moot case is subject to dismissal. 11
Here, it matters not that Creighton eventually changed its
policy regarding vaccines. We have held that a “‘suit that
seeks damages for harm caused by past practices is not ren-
dered moot by the cessation of the challenged conduct.’” 12
7 Brief for appellee at 25.
8 City of Hastings v. Sheets, 317 Neb. 88, 8 N.W.3d 771 (2024).
9 Id.
10 Id.
11 Id.
12 Rath v. City of Sutton, 267 Neb. 265, 274, 673 N.W.2d 869, 880 (2004).

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
RAMAEKERS v. CREIGHTON UNIVERSITY
Cite as 320 Neb. 478
In addition, we have made clear that mere voluntary cessa-
tion of allegedly unlawful conduct is insufficient to render
an action moot. “If voluntary cessation of that kind rendered
a case moot, ‘a defendant could engage in unlawful conduct,
stop when sued to have the case declared moot, then pick up
where he left off, repeating this cycle until he achieves all his
unlawful ends.’” 13 Accordingly, we conclude that the matter is
not moot and proceed to the substance of the appeal.
2. Dismissal for Failure
to State Claim
Broadly, the students assign that the district court improp-
erly dismissed all the allegations in their complaint, finding
that they had failed to state a claim on any of their causes of
action. The students contend that they have adequately pled the
necessary elements on each of their claims. Creighton counters
that the district court did not err, and that all the claims are
insufficient to withstand a motion to dismiss.
(a) Principles Guiding Analysis of Motion
to Dismiss for Failure to State Claim
Civil actions are controlled by a liberal pleading regime;
a party is required to set forth only a short and plain state-
ment of the claim showing that the pleader is entitled to relief
and is not required to plead legal theories or cite appropriate
statutes so long as the pleading gives fair notice of the claims
asserted. 14 The rationale for a liberal notice pleading standard
in civil actions is that when parties have a valid claim, they
should recover on it regardless of failing to perceive the true
basis of the claim at the pleading stage. 15
13 See Stewart v. Heineman, 296 Neb. 262, 297, 892 N.W.2d 542, 565
(2017). Accord Nesbitt v. Frakes, 300 Neb. 1, 911 N.W.2d 598 (2018).
14 Edwards v. Estate of Clark, 313 Neb. 94, 982 N.W.2d 788 (2022).
15 Id.

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
RAMAEKERS v. CREIGHTON UNIVERSITY
Cite as 320 Neb. 478
[7,8] To prevail against a motion to dismiss for failure to
state a claim, a plaintiff must allege sufficient facts, accepted
as true, to state a claim to relief that is plausible on its face. 16
A motion to dismiss should be granted only in the unusual
case in which a plaintiff includes allegations that show on
the face of the complaint that there is some insuperable bar
to relief. 17
(b) Breach of Implied Contract
We turn first to the students’ claim that they have stated
a valid claim for breach of contract. The students concede
that there is no express contract at issue. Instead, they allege
that the parties are bound by an implied contract based
on Creighton’s offer to educate the students in exchange
for the students’ completion of enrollment forms and pay-
ment of tuition. The students allege that Creighton then
breached this implied contract by adding a requirement that
students be vaccinated against COVID-19, without providing
additional consideration.
Creighton, however, counters that there is no implied con-
tract between the parties for several reasons. First, it asserts
that its student handbook, which provides that none of its
policies or procedures should be seen as creating a contract
between Creighton and its students, precludes the possibil-
ity of an implied contract. Second, citing case law from
various jurisdictions, Creighton argues that even if such a con-
tract exists, universities are permitted to impose vaccination
requirements, and that it explicitly reserved such a right in its
student handbook. Lastly, Creighton contends, again, that if
such a contract exists, the EUA waivers must be incorporated
into the contract, as well. From that perspective, it argues that
the students breached the contract by not being vaccinated
16 Nieveen v. TAX 106, 317 Neb. 425, 10 N.W.3d 365 (2024).
17 Trausch, supra note 2.

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
RAMAEKERS v. CREIGHTON UNIVERSITY
Cite as 320 Neb. 478
by the appointed deadline, thereby justifying Creighton’s deci-
sion to unenroll them.
We agree with the students and conclude that they have
alleged a claim for a breach of an implied contract.
[9-11] An implied contract arises where the intention of
the parties is not expressed in writing but where the circum-
stances are such as to show a mutual intent to contract. 18
The determination of the parties’ intent to make a contract
is to be gathered from objective manifestations—the con-
duct of the parties, language used, or acts done by them, or
other pertinent circumstances surrounding the transaction. 19
If the parties’ conduct is sufficient to show an implied
contract, it is just as enforceable as an express contract. 20
As a general matter, the terms of an implied contract are a
question of fact to be determined by the jury based on the
evidence presented. 21
This court has before recognized that the relationship
between a university and its students is often contractual in
nature. Such was the case in Armstrong v. Clarkson College, 22
a case in which we determined that an implied contract
existed between a college and one of its students regarding
the college’s obligation to provide the student a clinical site.
There, we determined that the contract had not arisen from
the handbook, which expressly disclaimed the formation of
any contractual relationships and reserved to the college the
unilateral power to modify the handbook. 23 Instead, we found
that the contract had been created at the time of enrollment
18 Moore v. Nebraska Acct. & Disclosure Comm., 310 Neb. 302, 965 N.W.2d
564 (2021).
19 Id.
20 Id.
21 Armstrong v. Clarkson College, 297 Neb. 595, 901 N.W.2d 1(2017).
22 Id.
23 Id.

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RAMAEKERS v. CREIGHTON UNIVERSITY
Cite as 320 Neb. 478
by the student’s conduct of accepting the college’s offer of
enrollment, which included the college’s promise to provide
the student with a site to complete clinical work as part of
its program. 24
Other jurisdictions have come to the same conclusion. 25
For example, in Kashmiri v. Regents of University of Cal., 26
the California Court of Appeal concluded that a university
had an implied contractual obligation not to raise its fees dur-
ing the course of its students’ enrollment, because such had
been promised to the students at the time of their admission
and because the same was reflected on the university’s web-
site and in its catalogs. As in Armstrong, the court concluded
that the contract was formed by “‘“the act of matriculation,
together with [the] payment of required fees.”’” 27 As such,
the policies, handbooks, or catalogs were relevant only to the
extent they defined the terms of the implied contract but were
not necessarily relevant to its creation. 28
Based on these principles, the issue to be determined in
our review of the motion to dismiss is whether the students
have adequately alleged conduct that would create an implied
24 Id.
25 See, McCudden v. Canisius Coll., 236 A.D.3d 1441, 230 N.Y.S.3d 492
(2025) (recognizing that nature of relationship between university and
student is contractual, but concluding that complaint at issue was too
conclusory to state valid claim for breach of contract); Univ. of Miss. Med.
Center v. Hughes, 765 So. 2d 528 (Miss. 2000) (concluding that although
relationship is contractual in nature, university retains right to change
academic degree requirements). See, also, Corso v. Creighton University,
731 F.2d 529 (8th Cir. 1984) (reaching same conclusion regarding status of
student-to-university relationship at federal level; case, however, involved
express rather than implied contract).
26 Kashmiri v. Regents of University of Cal., 156 Cal. App. 4th 809, 67 Cal.
Rptr. 3d 635 (2007).
27 Id. at 824, 67 Cal. Rptr. 3d at 646 (quoting Andersen v. Regents of
University of California, 22 Cal. App. 3d 763, 99 Cal. Rptr. 531 (1972)).
28 Kashmiri v. Regents of University of Cal., supra note 26.

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RAMAEKERS v. CREIGHTON UNIVERSITY
Cite as 320 Neb. 478
contract. The specific terms of such an agreement need not be
determined by this court at this point.
Based on our review of the complaint and the conduct
of the parties alleged therein, we cannot conclude that the
students have failed to state a claim. Specifically, the stu-
dents in this case allege that an implied contract existed
between Creighton and its students, which Armstrong and
Kashmiri make clear is a cognizable claim. In fact, the case
at bar is substantially similar to the cases discussed above.
As in Kashmiri, this contract is alleged to have arisen from
Creighton’s conduct of offering to educate the students in
return for the students’ conduct of enrolling at the univer-
sity and paying tuition. The complaint details that Creighton
then breached this contract by unilaterally modifying the
agreement to require the students to be vaccinated against
COVID-19, by refusing to permit the students to finish their
semester that had already begun, and by prohibiting the stu-
dents from accessing their transcripts. The complaint explains
that this conduct violates “CU policy 2.1.25” and the antidis-
crimination policy located in “paragraph Z” of Creighton’s
student handbook. These allegations are sufficient. It is suffi-
cient that the students allege that the parties’ conduct created
a contract and that the contract has been breached.
We do, nonetheless, acknowledge Creighton’s assertion
that the complaint does not include, beyond that detailed
above, much information regarding the terms of this implied
contract. That, however, is not fatal to the students’ claim. As
stated above, it is not for this court, in reviewing a motion
to dismiss for failure to state a claim, to identify the precise
terms of the implied contract. We leave such a determina-
tion to a fact finder. Accordingly, Creighton’s arguments
that to the extent the parties reached any implied contract,
such contract allowed Creighton to impose additional vaccine
requirements, and that the students additionally agreed to be
vaccinated pursuant to the EUA waivers, are premature and
irrelevant to our current review.

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RAMAEKERS v. CREIGHTON UNIVERSITY
Cite as 320 Neb. 478
Therefore, drawing all reasonable conclusions in favor of
the students, we conclude that they have stated a claim for
relief based on a breach of an implied contract, and the district
court erred in finding to the contrary.
(c) Violation of Due Process
[12] 	In 	their 	complaint, 	the 	students 	also 	allege 	that
Creighton violated their due process rights. Their allegations
seem to be based on the notion that Creighton provided no
grievance procedure for challenging the vaccination require-
ment. Although the students’ brief generally assigns that the
district court erred in dismissing their claims, there is no
specific mention of, or argument related to, this claim in the
students’ brief on appeal, and their reply brief did not counter
Creighton’s argument that this claim had been abandoned. We
have consistently stated that alleged errors of the lower court
must be both specifically assigned and specifically argued in
the brief of the party asserting the errors to be considered by
an appellate court. 29 Accordingly, we agree that the students
have abandoned this claim.
(d) Conversion
The students’ third cause of action is one for conversion.
By 	way 	of 	additional 	background, 	once 	enrolled 	at
Creighton, students were required to sign a “Statement of
Financial Responsibility,” agreeing that if they failed to pay
any moneys owed to Creighton, the university would place a
hold on their accounts, preventing the students from register-
ing for classes and housing, obtaining transcripts, or receiving
a diploma. Accordingly, when the students were withdrawn
from Creighton, a hold was placed on some of their student
accounts and records. As a result, some students, although the
complaint does not allege which ones, were unable to access
29 State v. Goynes, 318 Neb. 413, 16 N.W.3d 373 (2025).

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RAMAEKERS v. CREIGHTON UNIVERSITY
Cite as 320 Neb. 478
their transcripts despite the fact that the students had paid all
tuition and fees up until the fall 2021 semester.
The students assert that Creighton’s hold prevented them
from being able to register for classes at Creighton or to
transfer their credits to another university. Therefore, the
students also assert that this “constituted unauthorized and
wrongful dominion” over their personal property and resulted
in a denial of their right to said property. The students rely on
principles of forfeiture, particularly the notion that a forfei-
ture will not be found in the construction of a contract absent
an explicit provision. Although not entirely clear, it seems
to be the students’ position that, because the statement of
financial responsibility contains no express forfeiture clause,
its enforcement would result in an improper forfeiture of the
students’ credits. Creighton counters that the students do not
possess any ownership interest in their transcripts or previous
credits, and that because the students had not yet paid for the
fall 2021 semester, Creighton was permitted to place a hold on
their accounts.
[13,14] Conversion is any unauthorized or wrongful act of
dominion exerted over another’s property which deprives the
owner of his property permanently or for an indefinite period
of time. 30 In an action for conversion, the plaintiff must allege
facts showing a right to immediate possession of the property
at the time of the conversion. 31
The parties do not direct us to any cases in which we have
discussed whether students have a property right in school
records or transcripts, and we are not aware of any such cases.
Other jurisdictions have considered the matter with mixed
results. Some states have declined to find that such an interest
30 Peterson v. Homesite Indemnity Co., 287 Neb. 48, 840 N.W.2d 885 (2013).
31 Prososki v. Commercial Nat. Bank, 219 Neb. 607, 365 N.W.2d 427 (1985).

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RAMAEKERS v. CREIGHTON UNIVERSITY
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exists, 32 while other states have found that such an interest
does exist. 33
Based on our set principles of conversion, we conclude
that the students have stated a plausible claim for relief such
that they can overcome a motion to dismiss. The operative
complaint alleges that the students maintain a personal interest
in their transcripts and credits because they earned the credits
and paid for such credits, that the school exercised wrongful
control over those transcripts and credits, and that the students
were damaged by such wrongful control.
As such, the district court erred in dismissing this claim.
(e) Negligence and NCPA
Finally, the students assert that Creighton was negligent in
its administration of the vaccine and that, in its negligence,
it also violated the NCPA. It is the contention of the students
that neither of these claims is barred by the federal Public
Readiness and Emergency Preparedness Act (PREP act).
More specifically, the students allege that in requiring and
administering the vaccine, Creighton had a duty to follow the
Centers for Disease Control and Prevention guidelines, and
that those guidelines required that certain disclosures be made
and that a process for obtaining written informed consent be
followed prior to the administration of a vaccine. They further
32 See, Juras v. Aman Collection Service, Inc., 829 F.2d 739 (9th Cir. 1987)
(concluding that university, and not student, is owner of transcript, because
university creates, maintains, and possesses grade record and excludes all
except student from accessing it, and finding, instead, that student had
right only of access rather than ownership); McKee v. Southfield School,
613 So. 2d 659 (La. App. 1993) (finding that child, as third-party benefi-
ciary of contract between parent and school, was not entitled to access his
transcript absent payment of tuition).
33 Doe v. University of Michigan, 78 F. 4th 929 (6th Cir. 2023) (concluding
that student had standing to challenge act of university placing hold on his
account, because hold caused injury to student); In re Kuehn, 563 F.3d 289
(7th Cir. 2009) (concluding that student had state-law right, based on cus-
tom, to receive certified copy of her transcript).

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allege that Creighton failed either to provide the disclosures or
to receive informed consent from the students on campus. In
doing so, the students contend that this amounted to an “unfair
[and] deceptive business practice.” 34 It also seems to be the
contention of the students that Creighton’s duty applied to all
students regardless of whether they received the vaccine, there-
fore indicating that these claims are not exclusive to Hultgren,
the only student-appellant to receive the vaccine.
(i) Negligence
Turning first to the students’ negligence claim, we find that
even assuming the students could allege a state law negligence
claim, it would be preempted by the PREP act.
The PREP act was enacted in 2005 and provides:
[A] covered person shall be immune from suit and
liability under Federal and State law with respect to all
claims for loss caused by, arising out of, relating to, or
resulting from the administration to or the use by an
individual of a covered countermeasure if a declaration
under subsection (b) has been issued with respect to
such countermeasure. 35
In relevant part, the PREP act defines a covered person as
“(iv) a qualified person who prescribed, administered, or dis-
pensed such countermeasure.” 36 A covered countermeasure is
defined as “(A) a qualified pandemic or epidemic product,” 37
meaning a “drug,” “biological product,” or “device” “designed
. . . to diagnose, mitigate, prevent, treat, or cure a pandemic
or epidemic” 38 and “(C) a drug . . . , biological product
. . . , or device . . . that is authorized for emergency use.” 39
34 Brief for appellants at 26.
35 42 U.S.C. § 247d-6d(a)(1) (2018 & Supp. V 2023).
36 42 U.S.C. § 247d-6d(i)(2)(B).
37 42 U.S.C. § 247d-6d(i)(1).
38 42 U.S.C. § 247d-6d(i)(7).
39 42 U.S.C. § 247d-6d(i)(1)(C).

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Finally, “‘loss’ means any type of loss, including . . . (i) death;
(ii) physical, mental, or emotional injury, illness, disability, or
condition; (iii) fear of physical, mental, or emotional injury,
illness, disability, or condition, including any need for medical
monitoring; and (iv) loss of or damage to property, including
business interruption loss.” 40
In lieu of a cause of action, the PREP act created the
“‘Covered Countermeasure Process Fund’” to compensate
individuals who are harmed by the administration or use of
a covered countermeasure. 41 The PREP act does, also, pro-
vide an exclusive cause of action for claims of wrongful
misconduct. 42
Based on the federal statutory language, then, for a party’s
claim to be preempted by the PREP act, it must be that the
offending party is a covered person, who administered a cov-
ered countermeasure, and that the countermeasure caused the
loss to the other party. Neither party disputes that Creighton’s
vaccine policy caused the alleged harm to the students. As
such, we need determine only whether the first two elements
are present.
a. Creighton Is Covered Person Administering
Covered Countermeasure
The students argue that the PREP act is inapplicable
because Creighton is neither a covered entity nor an entity
who administered a covered countermeasure and, therefore,
does not meet the requirements to receive PREP act immu-
nity. As such, before determining whether the students’ claims
are preempted, we assess whether Creighton was a covered
person administering a covered countermeasure. We note that
at the time Creighton imposed its vaccine mandate, a decla-
ration, as contemplated by the act, was in effect, providing
40 42 U.S.C. § 247d-6d(a)(2)(A).
41 42 U.S.C. § 247d-6e(a) (2018).
42 See, e.g., 42 U.S.C. § 247d-6d(d)(1).

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immunity to qualified entities such that it would be possible
for Creighton to receive immunity.
We conclude that Creighton is a covered person. The stu-
dents concede as much in their complaint when they say,
“[Creighton] employed physicians materially participating in
supervision or administration of a program with respect to the
administration, dispensing, distribution, provision, or use of
the vaccines on [Creighton’s] campus.” That same allegation
cites to relevant portions of the PREP act. The students attempt
to retract this concession in their brief on appeal, but even
absent a concession, such a conclusion is still supported by the
statutory language.
As explicitly alleged in the complaint, Creighton’s chosen
method of combatting the COVID-19 pandemic was to require
and administer the COVID-19 vaccine on its campus through
physicians specifically authorized to do so. In doing so,
Creighton became a “qualified person who prescribed, admin-
istered, or dispensed such countermeasure.” 43 Additionally,
by administering the vaccine, Creighton was administering
a covered countermeasure. Administering a vaccine intended
to help prevent or slow the spread of an illness, in this case
COVID-19, is plainly within the statutory definition of a
covered countermeasure. This is true regardless of whether
the vaccine was experimental, or FDA approved, as both are
included in the act.
b. Students’ Negligence Claim Is
Preempted by PREP Act
The students also argue that even if Creighton receives some
immunity under the PREP act, the act does not preempt state
law claims for negligence and therefore provides no immunity
against their claims.
Nebraska has not yet had an occasion to comment on the
PREP act or to what extent state law claims may be preempted
43 See 42 U.S.C. § 247d-6d(i)(2)(B)(iv).

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thereby. The students urge us to rely on federal cases like
Saldana v. Glenhaven Healthcare LLC. 44 There, the court
assessed whether the PREP act was a complete preemption
statute and concluded that it was not. 45 Specifically, the court
determined that the act did not create an exclusive cause of
action for state law claims. 46 Instead, the court noted that
the act created a cause of action only for willful misconduct,
meaning only state law claims for willful misconduct were
preempted. 47 Therefore, the court concluded that there was
no basis for federal question jurisdiction, since the state law
claim remained. 48 The students cite other federal cases to the
same effect. 49
We do not find Saldana to be persuasive. Saldana, as with
many of the other cited cases, is procedurally distinct from the
matter before this court. The underlying question in those cases
was whether removal from state court to federal court was
appropriate when, based on the face of the complaint, the claim
was grounded in state law and presented no federal question.
That is not the issue before us.
A more procedurally analogous, and more persuasive, case
is Happel v. Guilford Cnty. Bd. of Educ., 50 decided by the
North Carolina Supreme Court. There, on a motion to dis-
miss, the court considered whether a litigant’s state constitu-
tional and tort-based claims were preempted by the PREP act
44 Saldana v. Glenhaven Healthcare LLC, 27 F.4th 679 (9th Cir. 2022).
45 Id.
46 Id.
47 Id.
48 Id.
49 See, Walsh v. SSC Westchester Operating Co. LLC, 592 F. Supp. 3d 737
(N.D. Ill. 2022); Yarnell v. Clinton No. 1, Inc., 591 F. Supp. 3d 432 (W.D.
Mo. 2022).
50 Happel v. Guilford Cnty. Bd. of Educ., 387 N.C. 186, 913 S.E.2d 174
(2025).

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and concluded that a battery claim fell squarely within the act
and, therefore, was preempted by the act. 51
The North Carolina high court concluded that Congress did
not preempt state constitutional claims, because to do so would
eliminate any recourse for nonwillful constitutional violations
except through the Covered Countermeasure Process Fund. 52
Such a situation, the court reasoned, would, effectively, incen-
tivize unconstitutional behavior by eliminating enforcement
mechanisms. 53 Additionally, in its statutory analysis, the court
focused 54 on the fact that the PREP act specifies that any
“claims for loss” are preempted. 55 Based on the plain language
of the PREP act’s definition of “loss,” which is defined by four
examples of various types of harm, 56 the court concluded that
those sorts of harms, or losses, could occur only in the context
of a tort. 57 As such, it held that the plain language of the pro-
vision preempted state law tort-based claims. 58 Accordingly,
noting that constitutional loss is substantially different from
tort loss, the court held that only the litigant’s battery claim
was preempted. 59
In Parker v. County Public Health Dept., 60 a New York
appellate 	court 	reached 	the 	same 	conclusion, 	deciding
that a claim based on a lack of consent was a “‘claim for
loss’” as contemplated by the PREP act. In arriving at this
51 Id.
52 Id.
53 Id.
54 Id.
55 See 42 U.S.C. § 247d-6d(a)(1).
56 See 42 U.S.C. § 247d-6d(a)(2)(A).
57 Happel v. Guilford Cnty. Bd. of Educ., supra note 50.
58 Id.
59 Id.
60 Parker v. County Public Health Dept., 102 A.D.3d 140, 143, 954 N.Y.S.2d
259, 262 (2012).

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conclusion, the court also reasoned that “‘claim[s] for loss’”
are typically vindicated through an award of damages any-
way, making the Covered Countermeasures Process Fund an
appropriate remedy. 61
We find Happel and Parker to be persuasive, and we rely
on the reasoning therein. In doing so, we conclude that the
students’ claims, both Hultgren’s and those of the other stu-
dents, are, in fact, preempted by the PREP act. As already
mentioned, the students do not allege any constitutional claims
and, instead, allege claims for negligence based on a lack of
disclosures and failure to receive informed consent. A claim for
negligence, as explained in Happel and Parker, is a tort claim
and, therefore, is a claim for loss based on the plain language
of the statute. In fact, just as in Parker, the students’ negli-
gence claims are based, at least in part, on a lack of consent. To
the extent the students seek monetary damages for Creighton’s
alleged negligence, Congress’ statutory remedy, the Covered
Countermeasure Process Fund, provides similar recourse and
was designed specifically for situations such as this. Therefore,
we conclude that the district court did not err in concluding
that none of the students could state a claim for negligence.
(ii) Students Cannot State Claim
for Violation of NCPA
Next, we turn to the students’ claim for violations of
the NCPA. As mentioned above, the students argue that
Creighton’s lack of disclosures and failure to obtain informed
consent amounted to “unfair or deceptive business practices,”
because students were not made fully aware of the type, risks,
and benefits of receiving the vaccine. 62 Creighton counters
that the situation at issue is not governed by the NCPA and
that the students’ interpretation of the statutory language is
overly broad.
61 Id.
62 Brief for appellants at 25.

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[15,16] The NCPA was intended to be an antitrust measure
to protect Nebraska consumers from monopolies and price-
fixing conspiracies. 63 The purpose of the NCPA is to provide
consumers with protection against unlawful practices in the
conduct of any trade or commerce which directly affects
the people of Nebraska. 64
In making their argument, the students specifically rely on
§ 59-1602, which provides that “[u]nfair methods of competi-
tion and unfair or deceptive acts or practices in the conduct of
any trade or commerce shall be unlawful.” Section 59-1601
provides that “[t]rade and commerce shall mean the sale of
assets or services and any commerce directly or indirectly
affecting the people of the State of Nebraska.” The students
contend that Creighton’s provision of educational services
would fall within this definition.
In this matter, any violations of the NCPA were causally
related to Creighton’s administration of a covered countermea-
sure. As such, the PREP act preempts the students’ cause of
action concerning the NCPA and the district court did not err
in dismissing the claim. 65
3. District Court Did Not Err in Refusing
to Allow Motion to Amend
[17,18] The students also assign and argue that the district
court erred in denying their motion to amend their complaint.
Generally, where leave to amend is sought before discovery
is complete and before a motion for summary judgment has
been filed, leave to amend should be denied as futile only
if the proposed amendment cannot withstand a motion to
63 Salem Grain Co. v. Consolidated Grain & Barge Co., 297 Neb. 682, 900
N.W.2d 909 (2017).
64 Arthur v. Microsoft Corp., 267 Neb. 586, 676 N.W.2d 29 (2004).
65 See M.T. v. Walmart Stores, Inc., 63 Kan. App. 2d 401, 528 P.3d 1067
(2023) (review denied on August 25, 2023).

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dismiss under § 6-1112(b)(6). 66 However, leave to amend
should not be granted when it is clear that the defect cannot
be cured by amendment. 67
Based on our analysis above, we determine that the stu-
dents’ claims as to negligence and violation of the NCPA
are unable to be remedied through an amendment because
Creighton is a covered person administering a covered coun-
termeasure and these claims cannot be maintained against
them. As a result, we conclude that the district court did not
abuse its discretion in declining the students’ request to file an
amended complaint.
VI. CONCLUSION
For the reasons outlined above, we conclude that the stu-
dents have sufficiently stated a claim for breach of an implied
contract and conversion. However, as to the students’ negli-
gence and NCPA claims, we conclude that they have failed
to state a claim, and that any amendment to such claims
would be futile because the defects in the claims cannot be
remedied. As to the students’ due process claim, we con-
clude that they have abandoned this issue. Accordingly, we
reverse the district court’s decision and remand the cause for
further proceedings on the breach of contract and conversion
claims but otherwise affirm the district court’s decision on all
other matters.
Affirmed in part, and in part reversed and
remanded for further proceedings.
66 Trausch, supra note 2.
67 Id.