Curiosity Never Kills the Cat: Legal Questions for VERIFIED LAWYERS- ~No Discussion~

[AZlawyer]

OK, I checked the docket for the federal case. The case was dismissed because the Zahaus never responded to the defendants' Motions to Dismiss--instead, they filed an amended complaint, which they must have thought cured the problems. (Scroll above for my post re: the complaint was still no good because the parties still lacked diversity of citizenship.) The judge rejected the amended complaint because the Zahaus never asked for permission to file it (which was required), and granted the motions to dismiss because the Zahaus never responded. (What they should have done was filed a Response to Motions to Dismiss or, in the Alternative, Motion for Leave to File Amended Complaint.) So the case was closed.

Apparently, the Zahaus then immediately asked permission to file the amended complaint and reopen the case. But they offered two options: (1) allow them to file the entire amended complaint, or (2) allow them to file just the "wrongful death" half of the claim (alleging damages to the family members themselves due to the loss of Rebecca) and drop the "survivor" claims (alleging damages for harm suffered by Rebecca personally). This is a solution I mentioned above, but it involves giving up on a huge portion of the potential damages.

On March 13, 2014, the Court ruled that the amended complaint lacked diversity and could not be filed. The Court also denied the request to file the proposed wrongful-death-only complaint, on the ground that it was so vague that it alleged only "an amorphous scheme to kill Ms. Zahau for an unspecified nefarious purpose." The judge gave the Zahaus until April 7 to try again.

On April 7, the Zahaus filed an amended complaint for wrongful death only. The Defendants immediately moved to dismiss again. On June 24, 2014, the Court ruled that the amended complaint was still insufficient and gave the Zahaus ONE more chance, warning them that, when and if they filed their more specific allegations, they needed to keep in mind that they were required to reasonably believe that there would be evidence to support those allegations.

On July 8, the Zahaus filed the attached second amended complaint: View attachment zahau.pdf.

Defendants moved to dismiss again, and those motions are pending.

 

[LuckyLucy2]

Thank you explaining where these cases stand, AZLawyer - very much appreciated!

Many posters in the Wrongful Death Suit thread have stated they believe Dina Shacknai and Nina Romano's lawyers should have mentioned the testimony of witnesses that saw Dina and Nina during the hours of Ms. Zahau's death in their Reply to Plantiffs' Ominbus Opposition to Motion to Second Amended Complaint. Instead they only answered the charges leveled in the Second Amended Complaint.

Could you let use know whether witness testimony would have been allowed in the defendents' response to the Second Amended Complaint?

Thank you!

 

[bourne]

OK, I checked the docket for the federal case. The case was dismissed because the Zahaus never responded to the defendants' Motions to Dismiss--instead, they filed an amended complaint, which they must have thought cured the problems. (Scroll above for my post re: the complaint was still no good because the parties still lacked diversity of citizenship.) The judge rejected the amended complaint because the Zahaus never asked for permission to file it (which was required), and granted the motions to dismiss because the Zahaus never responded. (What they should have done was filed a Response to Motions to Dismiss or, in the Alternative, Motion for Leave to File Amended Complaint.) So the case was closed.

Apparently, the Zahaus then immediately asked permission to file the amended complaint and reopen the case. But they offered two options: (1) allow them to file the entire amended complaint, or (2) allow them to file just the "wrongful death" half of the claim (alleging damages to the family members themselves due to the loss of Rebecca) and drop the "survivor" claims (alleging damages for harm suffered by Rebecca personally). This is a solution I mentioned above, but it involves giving up on a huge portion of the potential damages.

On March 13, 2014, the Court ruled that the amended complaint lacked diversity and could not be filed. The Court also denied the request to file the proposed wrongful-death-only complaint, on the ground that it was so vague that it alleged only "an amorphous scheme to kill Ms. Zahau for an unspecified nefarious purpose." The judge gave the Zahaus until April 7 to try again.

On April 7, the Zahaus filed an amended complaint for wrongful death only. The Defendants immediately moved to dismiss again. On June 24, 2014, the Court ruled that the amended complaint was still insufficient and gave the Zahaus ONE more chance, warning them that, when and if they filed their more specific allegations, they needed to keep in mind that they were required to reasonably believe that there would be evidence to support those allegations.

On July 8, the Zahaus filed the attached second amended complaint: View attachment 59649.

Defendants moved to dismiss again, and those motions are pending.

Thanks for explanation in zahau case. Can you clarify why the court docket say the "Diversity - Personal Injury" case was "Reopened" by Judge Whelan if it was dismissed? And why he along with another female judge are both hearing the WDS in two separate courts?

 

[AZlawyer]

Thank you explaining where these cases stand, AZLawyer - very much appreciated!

Many posters in the Wrongful Death Suit thread have stated they believe Dina Shacknai and Nina Romano's lawyers should have mentioned the testimony of witnesses that saw Dina and Nina during the hours of Ms. Zahau's death in their Reply to Plantiffs' Ominbus Opposition to Motion to Second Amended Complaint. Instead they only answered the charges leveled in the Second Amended Complaint.

Could you let use know whether witness testimony would have been allowed in the defendents' response to the Second Amended Complaint?

Thank you!

It would have been "allowed" but pointless. Unless you have a legal objection to something in the Complaint, you just say yes or no--agree or disagree--to each factual allegation. If you choose to add comments on the evidence, you are doing it for the public, not for the judge, who will likely never read the Complaint or Answer unless there are preliminary legal motions (e.g., Motion to Dismiss). And on preliminary legal motions, you can't argue the evidence.

Thanks for explanation in zahau case. Can you clarify why the court docket say the "Diversity - Personal Injury" case was "Reopened" by Judge Whelan if it was dismissed? And why he along with another female judge are both hearing the WDS in two separate courts?

It was dismissed, and then it was reopened.

The two courts will not, ultimately, both try the case. I would give it a 90% chance of trial in the state court unless the state court dismisses on statute of limitations grounds (has that already been ruled on in the state court?). The reason for my guess is that the federal judge will have little to no interest in trying this state law issue if there is a state court judge available to do the trial.

 

[Betty P]

It would have been "allowed" but pointless. Unless you have a legal objection to something in the Complaint, you just say yes or no--agree or disagree--to each factual allegation. If you choose to add comments on the evidence, you are doing it for the public, not for the judge, who will likely never read the Complaint or Answer unless there are preliminary legal motions (e.g., Motion to Dismiss). And on preliminary legal motions, you can't argue the evidence.



It was dismissed, and then it was reopened.

The two courts will not, ultimately, both try the case. I would give it a 90% chance of trial in the state court unless the state court dismisses on statute of limitations grounds (has that already been ruled on in the state court?). The reason for my guess is that the federal judge will have little to no interest in trying this state law issue if there is a state court judge available to do the trial.

Thanks so much for the explanation. We appreciate your assistance.

May I ask your opinion of Judge Whelan reopening the case? In their latest amended complaint, they provided more details and revealed more information about Rebecca Zahau's death - that the noose around her neck was tied with an unusual knot, a tugboat hitch; and that the clothes Rebecca wore the day of her death were missing when LE searched the home. Do you think those facts weighed in the judge's decision to reopen the case?

 

[AZlawyer]

Thanks so much for the explanation. We appreciate your assistance.

May I ask your opinion of Judge Whelan reopening the case? In their latest amended complaint, they provided more details and revealed more information about Rebecca Zahau's death - that the noose around her neck was tied with an unusual knot, a tugboat hitch; and that the clothes Rebecca wore the day of her death were missing when LE searched the home. Do you think those facts weighed in the judge's decision to reopen the case?

No, it was reopened by the court clerk, not by the judge, to reflect that there is currently an undismissed Complaint on file.

 

[bourne]

OK, I checked the docket for the federal case. The case was dismissed because the Zahaus never responded to the defendants' Motions to Dismiss--instead, they filed an amended complaint, which they must have thought cured the problems. (Scroll above for my post re: the complaint was still no good because the parties still lacked diversity of citizenship.) The judge rejected the amended complaint because the Zahaus never asked for permission to file it (which was required), and granted the motions to dismiss because the Zahaus never responded. (What they should have done was filed a Response to Motions to Dismiss or, in the Alternative, Motion for Leave to File Amended Complaint.) So the case was closed.

Apparently, the Zahaus then immediately asked permission to file the amended complaint and reopen the case. But they offered two options: (1) allow them to file the entire amended complaint, or (2) allow them to file just the "wrongful death" half of the claim (alleging damages to the family members themselves due to the loss of Rebecca) and drop the "survivor" claims (alleging damages for harm suffered by Rebecca personally). This is a solution I mentioned above, but it involves giving up on a huge portion of the potential damages.

On March 13, 2014, the Court ruled that the amended complaint lacked diversity and could not be filed. The Court also denied the request to file the proposed wrongful-death-only complaint, on the ground that it was so vague that it alleged only "an amorphous scheme to kill Ms. Zahau for an unspecified nefarious purpose." The judge gave the Zahaus until April 7 to try again.

On April 7, the Zahaus filed an amended complaint for wrongful death only. The Defendants immediately moved to dismiss again. On June 24, 2014, the Court ruled that the amended complaint was still insufficient and gave the Zahaus ONE more chance, warning them that, when and if they filed their more specific allegations, they needed to keep in mind that they were required to reasonably believe that there would be evidence to support those allegations.

On July 8, the Zahaus filed the attached second amended complaint: View attachment 59649.

Defendants moved to dismiss again, and those motions are pending.

Thanks for all the explanations AZlawyer! You're the best! What I'm not understanding is how dropping the "survivor damage" negates the "diversity" requirement for the federal suit? As that seems to be why Judge Whelan allowed reopening of the case?

Also, does not the Judge review the case files before reopening a case? I didn't know only the Court Clerk gets to see the case files and that the clerk decides whether or not to reopen a case?

 

[AZlawyer]

Thanks for all the explanations AZlawyer! You're the best! What I'm not understanding is how dropping the "survivor damage" negates the "diversity" requirement for the federal suit? As that seems to be why Judge Whelan allowed reopening of the case?

Also, does not the Judge review the case files before reopening a case? I didn't know only the Court Clerk gets to see the case files and that the clerk decides whether or not to reopen a case?

The "survivor" claim has "Rebecca" (through her estate's representative) on the plaintiff side and Dina on the defendant side--both citizens of Arizona, so no diversity. The "wrongful death" claim has Rebecca's family members on the plaintiff side (not as estate representatives but for themselves), and there is no overlap of citizenship between the plaintiffs and defendants.

The clerk closed the case because the judge dismissed it. The clerk reopened the case because, after the judge gave permission, the Zahaus filed a new Complaint. The clerk doesn't care how good or bad the new Complaint is--it's there, so the case is open.

The judge, of course, is the one who gave the Zahaus permission to file the new Complaint, and who keeps giving them chances to try again. Who knows why he's being so nice--maybe he's just a nice guy. But for sure he didn't give them all these chances based on the detail finally included in the most recent Complaint, because all the rulings he made were BEFORE the most recent Complaint was filed. Most likely he hasn't seen the new Complaint yet and won't read it until a couple of days before oral argument on the latest Motion to Dismiss.

 

[bourne]

The "survivor" claim has "Rebecca" (through her estate's representative) on the plaintiff side and Dina on the defendant side--both citizens of Arizona, so no diversity. The "wrongful death" claim has Rebecca's family members on the plaintiff side (not as estate representatives but for themselves), and there is no overlap of citizenship between the plaintiffs and defendants.

The clerk closed the case because the judge dismissed it. The clerk reopened the case because, after the judge gave permission, the Zahaus filed a new Complaint. The clerk doesn't care how good or bad the new Complaint is--it's there, so the case is open.

The judge, of course, is the one who gave the Zahaus permission to file the new Complaint, and who keeps giving them chances to try again. Who knows why he's being so nice--maybe he's just a nice guy. But for sure he didn't give them all these chances based on the detail finally included in the most recent Complaint, because all the rulings he made were BEFORE the most recent Complaint was filed. Most likely he hasn't seen the new Complaint yet and won't read it until a couple of days before oral argument on the latest Motion to Dismiss.

Thanks AZlawyer! I now thoroughly understand how diversity works for federal cases. LOL

Judge Whelan is the same judge who presided over the Betty Broderick case wherein a jealous ex-wife killed her ex-husband and his new wife... I think that was one reason he was given the Rebecca Zahau case. But who knows? Maybe it was only coincidence.

One would think that the judge would actually skim a case before accepting to preside over it? I don't know how the system works. Do judges not get a choice as to which cases they want to try?

 

[inthedark14]

Thanks AZlawyer for all your insight. It's really hard for me to figure out what is going on with these civil cases. Your explanations are very, very helpful. The thanks button is not enough.

O/T Bourne, dear, your inbox is full.

Also O/T Happy New Year to my friends that are celebrating today.

 

[AZlawyer]

Thanks AZlawyer! I now thoroughly understand how diversity works for federal cases. LOL

Judge Whelan is the same judge who presided over the Betty Broderick case wherein a jealous ex-wife killed her ex-husband and his new wife... I think that was one reason he was given the Rebecca Zahau case. But who knows? Maybe it was only coincidence.

One would think that the judge would actually skim a case before accepting to preside over it? I don't know how the system works. Do judges not get a choice as to which cases they want to try?

The cases are assigned randomly to the judges, so it was not assigned to him for any particular reason and he did not have a choice whether to accept it.

The only exception would be a case that is really closely related to another one before the judge--like cases with different plaintiffs but the same defendant and similar allegations that maybe could be consolidated and tried together.

 

[*Lash*]

Thank you AZLawyer for your time and research. Very much appreciated

Just for clarification purposes does dropping the "survivor claims" fix the diversity issue? Since the family members in a "wrongful death only" do not reside in AZ or CA. If the diversity issue is resolved, then wouldn't the case stay in federal court? According to the above the wrongful death only wasn't denied because of diversity but instead because it was so vague, correct? TIA

 

[bourne]

The cases are assigned randomly to the judges, so it was not assigned to him for any particular reason and he did not have a choice whether to accept it.

The only exception would be a case that is really closely related to another one before the judge--like cases with different plaintiffs but the same defendant and similar allegations that maybe could be consolidated and tried together.

Thanks AZlawyer. I would also think conflict of interest cases as well wherein a judge would decide whether or not to recuse him/herself.

Does the local WDS still have Rebecca as "survivor" claims? My understanding is that there was no diversity issue for the local case (as opposed to federal).

O/T inthedark14, I deleted tons of emails -- just for you. lol

 

[AZlawyer]

Thank you AZLawyer for your time and research. Very much appreciated

Just for clarification purposes does dropping the "survivor claims" fix the diversity issue? Since the family members in a "wrongful death only" do not reside in AZ or CA. If the diversity issue is resolved, then wouldn't the case stay in federal court? According to the above the wrongful death only wasn't denied because of diversity but instead because it was so vague, correct? TIA

Yes, dropping the survivor claim cures the diversity problem, and the wrongful death claim can proceed in federal court if the judge doesn't grant the motions to dismiss for some other reason.

Thanks AZlawyer. I would also think conflict of interest cases as well wherein a judge would decide whether or not to recuse him/herself.

Does the local WDS still have Rebecca as "survivor" claims? My understanding is that there was no diversity issue for the local case (as opposed to federal).

O/T inthedark14, I deleted tons of emails -- just for you. lol

I think the state court case has both survivor and wrongful death claims. There is no diversity requirement for the state court suit; however, there is a statute of limitations problem (which might be overcome by California case law, but that's a big research project and I'd prefer to let the Zahaus' lawyers tackle it for us).

 

[Gilgamesh]

I showed some of this info to an attorney today. After speaking with her, I am so disappointed about the mistakes that the Zahau lawyers made. It shouldn't have happened. She doesn't think that there's much of a chance that the case will proceed because of all the mistakes that were made on filings. AZ lawyer is right. The judge had been VERY nice to give the Zahau's more chances. There simply aren't any more chances after this next ruling. It will be dead in the water. Hope for the best but expect the worst. I'm pretty appalled about the carelessness by the Zahau defense team. Appalled and disappointed. Wow.

 

[inthedark14]

I showed some of this info to an attorney today. After speaking with her, I am so disappointed about the mistakes that the Zahau lawyers made. It shouldn't have happened. She doesn't think that there's much of a chance that the case will proceed because of all the mistakes that were made on filings. AZ lawyer is right. The judge had been VERY nice to give the Zahau's more chances. There simply aren't any more chances after this next ruling. It will be dead in the water. Hope for the best but expect the worst. I'm pretty appalled about the carelessness by the Zahau defense team. Appalled and disappointed. Wow.

It is really very shocking. Especially with the type of attorney's they are up against. I'm hoping for a miracle as well. It is SO OBVIOUS that there is something very wrong with how RZ died. It's also quite obvious that people named in this suit do not have alibis, have reason to want to do the deceased harm and have (two of the named defendants) accused the deceased (and her minor sister) of essentially "giving" them a motive to kill her. I'm hoping that the judge sees that too. Fingers crossed.

 

[bourne]

I showed some of this info to an attorney today. After speaking with her, I am so disappointed about the mistakes that the Zahau lawyers made. It shouldn't have happened. She doesn't think that there's much of a chance that the case will proceed because of all the mistakes that were made on filings. AZ lawyer is right. The judge had been VERY nice to give the Zahau's more chances. There simply aren't any more chances after this next ruling. It will be dead in the water. Hope for the best but expect the worst. I'm pretty appalled about the carelessness by the Zahau defense team. Appalled and disappointed. Wow.

No use crying over spilt milk. At least the Zahaus have retained a brilliant lawyer (Greer) now. Let's just cross our fingers that both courts allow the WDS cases to go forward and that the Zahaus will finally have their long-awaited trial (and closure) and that the murderers will be found guilty and justly punished on earth. Murderers, especially pathetically sadistic ones, should NOT go free to roam our streets and allowed to murder again.

 

[LuckyLucy2]

No use crying over spilt milk. At least the Zahaus have retained a brilliant lawyer (Greer) now. Let's just cross our fingers that both courts allow the WDS cases to go forward and that the Zahaus will finally have their long-awaited trial (and closure) and that the murderers will be found guilty and justly punished on earth. Murderers, especially pathetically sadistic ones, should NOT go free to roam our streets and allowed to murder again.

I'll be crossing my fingers that the Judge will see that the Zahau's accusations have absolutely no merit and the Shacknais and Romanos can finally mourn sweet Max in peace. And I pray the Zahaus will finally accept the suicde ruling and get counseling.

 

[inthedark14]

I'll be crossing my fingers that the Judge will see that the Zahau's accusations have absolutely no merit and the Shacknais and Romanos can finally mourn sweet Max in peace. And I pray the Zahaus will finally accept the suicde ruling and get counseling.

I would think that DS and NR would love the opportunity to show that while their alibis and explanations and interviews do not pass the smell test, in some people's opinions, that they could prove how wrong so many people are about them.

The public venue of a courtroom will be a great place to clear all that air. If they have any proof whatsoever, I'm sure it will be heard.

For AZLawyer: I don't know exactly how the discovery process works, but I think that there would be dispositions? In that case, do both sides get to question the person giving the statements? Who can we expect to be disposed in this case? When will the discovery process start?

TIA!!!

 

[AZlawyer]

I would think that DS and NR would love the opportunity to show that while their alibis and explanations and interviews do not pass the smell test, in some people's opinions, that they could prove how wrong so many people are about them.

The public venue of a courtroom will be a great place to clear all that air. If they have any proof whatsoever, I'm sure it will be heard.

For AZLawyer: I don't know exactly how the discovery process works, but I think that there would be dispositions? In that case, do both sides get to question the person giving the statements? Who can we expect to be disposed in this case? When will the discovery process start?

TIA!!!

Once the issues with the Complaints are all figured out and assuming the cases are not dismissed entirely, I would expect depositions to start in one or both cases within a couple of months. I imagine the first priority will be to depose the individual defendants, although down the road I wouldn't be surprised if law enforcement people are deposed as well. Both sides are allowed to ask questions, but many times the person's own lawyer doesn't ask questions, because the primary purpose for most depositions is to gather information you don't already have.