Estate of Rebecca Zahau et al v. Shacknai et al

[time]

Thank you, Time!

Best Wishes to your mom.

Thank you so much :seeya:

 

[Betty P]

Ok, I think I finally have both pages :facepalm:

Thanks time!

IANAL, but this doesn't look like a very strong defense.

1. The Complaint fails to adequately allege subject-matter jurisdiction
thereby subjecting it to a motion to dismiss under Fed. R. Civ. P. 12(b)(1) because
the Complaint fails to allege the citizenship of each of the plaintiffs and each of the defendants so as to establish diversity of citizenship jurisdiction.

Link to federal code quoted:
http://www.law.cornell.edu/rules/frcp/rule_12

Are they saying the case has no merit because the family of RZ are not US citizens? If so, tsk, tsk, that's the racism/xenophobia thing coming up again.

2.The First, Second and Third Causes of Action fail to state a claim upon
which relief can be granted (Fed. R. Civ. P. 12(b)(6)) because the damages sought are precluded by California Code of Civil Procedure section 377.34.

Link to codes quoted

http://www.law.cornell.edu/rules/frcp/rule_12

http://law.onecle.com/california/civil-procedure/377.34.html

I'm scratching my head over this one. They're saying the Zahau family can't make any damages claim at all because of the Cali Civil Code, but the code says that damages are allowed to surviving family members. Perhaps one of our WS attorneys can interpret.


3. This one is sort of generic, something all defense attorneys do - just asking the judge to dismiss the suit.

4. Looks to be the same argument as #3 motion to strike because it's redundant, immaterial, etc. Sorry, but the claim that someone lost their life as a result of the actions of others is pretty relevant.

http://www.law.cornell.edu/rules/frcp/rule_12

Again, IANAL, but this doesn't seem like much. The Zahau family does have a right to file a suit because they are US citizens, they are allowed to sue for damages, the Federal and Cali laws say so and the judge probably isn't going to dismiss the suit because the defense atty asked him to. JMO

 

[K_Z]

Good questions, Betty P.

This from Wikipedia (not a robust reference, but handy):

Regarding the Diversity jurisdiction issue:

Though an alien (foreign national) who has been granted the status of permanent resident status used to be treated as a citizen of the state where the alien is domiciled, recent law has eliminated this language from the code and added language specifically denying diversity jurisdiction in a claim between a citizen of a state and an alien permanent resident.[6]

[ame="http://en.wikipedia.org/wiki/Diversity_of_citizenship"]Diversity jurisdiction - Wikipedia, the free encyclopedia[/ame]

Do we know if BOTH Pari Zahau and Mary Zahau Loefner are U.S. citizens? This appears to say resident aliens have different standing than citizens as far as diversity jurisdiction for federal filing. If I understand this issue correctly (and I'm not sure I do), the changes to the law mean that there is no "diversity" between a resident alien and a citizen.

Possibly, this means that the response by NR's attorney means that he feels that the complaint belongs in state court, not federal court, since diversity does not apply to resident aliens. IANAL, so it would be best if an atty interpreted. I re-read the Zahau complaint, and the plaintiff section on page 2 says Pari and Mary are residents of Buchanan County, MO-- and does not use "citizen" language. Citizen language is used for the defendants, so I am assuming "resident" language was intentional. However, it seems Mary should have U.S. citizenship by marriage to Doug L., if not obtained before marriage. (Assuming DL is a citizen by birth.)

I'm not sure what the situation would be if Mary is a citizen, but Pari is a resident alien-- I can't find any guidance on this. Then the question may be, does Mary ZL have standing to bring the case alone, without Pari? I think a judge will have to rule on this.

More on diversity jurisdiction and resident aliens:

http://www.trialnote.com/evidence-procedure/diversity-jurisdiction-and-resident-aliens

One very important caveat to this general rule of determining a permanent legal resident alien’s citizenship is that the Clarification Act amendments make clear that there is no diversity between citizens of a State and “citizens or subjects of a foreign state who are lawfully admitted for permanent residence in the United States and are domiciled in the same State.” This exception means that, just as under the former version of the statute, there would be no diversity between a U.S. citizen domiciled in Texas and our Mexican citizen admitted for permanent residence and domiciled in Texas. Thus, with respect to determining whether federal courts have diversity jurisdiction in cases involving permanent resident aliens domiciled in a US State, the Clarification Act works little, if any, change, at least in cases not involving aliens on both sides of the case.

http://www.fclaw.com/newsletter/newsletter.cfm?id=1123

Litigants filing actions after January 6, 2012 will be affected by changes in federal court jurisdiction and venue laws.

Treatment of resident aliens

The Act amends 28 U.S.C. § 1332(a) with the result that resident aliens are no longer deemed citizens for diversity jurisdiction purposes. This means two resident aliens in a suit against each other cannot invoke federal court diversity jurisdiction, even if they are domiciled in different states. State court forums are still available in such cases, and resident aliens can appear as additional parties to disputes in federal court.

BBM.

http://www.schnader.com/files/Uploads/Documents/FTD-1203-FinneganStern.pdf

Resident Alien Treatment
for Diversity Purposes

The Federal Courts Jurisdiction and Venue
Clarification Act (the “Act”) changes the
treatment of resident aliens, meaning aliens
“admitted to the United States for permanent
residence,” for diversity jurisdiction
purposes, effectively closing the federal
courthouse doors to disputes between
aliens whether permanent residents or not.
According to House Report 112-10, these
changes constitute a “modest[ ]” jurisdictional
restriction while leaving state courts
available to resolve disputes between such
parties. H.R. Rep. No. 112-10, at 7 (2011).
Diversity jurisdiction exists when a matter
in controversy exceeds $75,000 and is
between citizens of different states. The federal
courts have long required “complete
diversity” between the parties: no plaintiff
and no defendant can have citizenship in
the same state. Under the revisions to section
1332(a)(2), federal district courts do
not have jurisdiction of an action “between
citizens of a State and citizens or subjects
of a foreign state who are lawfully admitted
for permanent residence in the United
States and are domiciled in the same State.”

As I read more, it seems they are trying to have the complaint dismissed from federal court.

The motion to dismiss, of course, is completely expected-- almost perfunctory.

On another note, since Nina Romano has been served and responded, I think we will soon hear that AS and DS have been served. NR's attorney firm has offices in both San Diego and Scottsdale, AZ (in addition to Irvine, San Fran, and LA). I wonder if DS will use the same firm, since they have a presence in both Scottsdale and San Diego? Will be interesting to see if all 3 named defendants use different representation.

http://www.mmker.com/offices.asp

 

[Mrs. Holmes]

Very interesting..... I wonder if the statute of limitations comes into play here with regards to the date of the death being before the January 6, 2012 deadline?

Also, what would be tragic is if the litigation could not go forward and they had to file a new lawsuit in the appropriate state because of a federal filing.... or could it simply be "moved" to a state court.

 

[Betty P]

Very interesting..... I wonder if the statute of limitations comes into play here with regards to the date of the death being before the January 6, 2012 deadline?

Also, what would be tragic is if the litigation could not go forward and they had to file a new lawsuit in the appropriate state because of a federal filing.... or could it simply be "moved" to a state court./

Jan 6, 2012 was not the deadline to file the civil suit in federal court. The Zahau family's WDS was filed before the deadline. That's not going to be an issue.

The deadline was 2 yrs. from the date of the wrongful death. The Jan. 6, 2012 deadline in the text from the link above refers to some changes to the federal code that went into effect on Jan. 6, 2012.

Litigants filing actions after January 6, 2012 will be affected by changes in federal court jurisdiction and venue laws.

The aptly named Federal Courts Jurisdiction and Venue Clarification Act of 2011 (“Act&#8221 clarifies the jurisdiction of the federal courts and rules governing venue, including significant changes regarding removal of state court actions to federal court. Taken in the order they appear in the House of Representatives’ Committee on the Judiciary Report 112-10, this article highlights some of the important changes affecting litigants.

Treatment of resident aliens

The Act amends 28 U.S.C. § 1332(a) with the result that resident aliens are no longer deemed citizens for diversity jurisdiction purposes. This means two resident aliens in a suit against each other cannot invoke federal court diversity jurisdiction, even if they are domiciled in different states. State court forums are still available in such cases, and resident aliens can appear as additional parties to disputes in federal court.

Treatment of corporations and insurance companies with foreign contacts

The Act amends 28 U.S.C. § 1332(c)(1) to specify the treatment of citizenship of corporations and insurance companies with foreign contacts. Under the revised law, corporations, both foreign and domestic, are regarded as citizens of both their place of incorporation and their principle place of business. According to the House Report, the change in the law should result in a “denial of diversity in two situations: (1) where a foreign corporation with its principal place of business in a state sues or is sued by a citizen of that same state; and (2) where a citizen of a foreign country sues a U.S. corporation with its principal place of business abroad.” In addition, an insurance company in a direct action (i.e., where the plaintiff sues the liability insurance company directly without naming as a defendant the insured party whose negligence or other wrongdoing gave rise to the claim) is deemed to be a citizen of the state of which the insured is a citizen, even if the insured party is not named as a defendant.

Removal in multiple-defendant cases

The Act amends 28 U.S.C. § 1446(b) to address a number of issues involving multiple-defendant cases. New subparagraph (b)(2)(A) codifies the well-established “rule of unanimity.” Under the rule, all defendants who have been properly joined and served must join in or consent to remove a case from state court to federal court.

New subparagraph (b)(2)(B) provides that each defendant will have a 30-day period in which to remove. The change resolves a longstanding conflict in the lower courts over the deadline for removal in a multi-defendant suit. Additionally, and consistent with the “rule of unanimity,” new subparagraph (b)(2)(C) permits earlier-served defendants to join in and consent to removal by a later-served defendant, even if the earlier-served defendants did not previously initiate or consent to removal.

Joinder of federal law clams and unrelated state law claims

The Act amends 28 U.S.C. § 1441(c) to require that a district court remand unrelated state law claims in cases removed based on federal question jurisdiction. Previously, district courts could exercise their discretion in determining whether to retain the whole case or remand all claims in which state law predominated. Others remanded the entire case to state court, blocking access to the federal courts altogether. The new “sever-and-remand” approach is intended to cure any constitutional problems with the federal courts deciding state law claims while preserving the defendant’s right to remove claims arising under federal law. etc./

The apparent reason NR's defense attorney brought up this clause was to attempt to claim the Z family were not legal citizens of the US. Their citizenship will be decided/proven in court. IANAL, but K_Z has asked one of the WS verified attorneys to give us an interpretation of the statue.

JMO

 

[inthedark14]

Ok, I think I finally have both pages :facepalm:

Thank's so much time! You're awesome. I wonder how quickly the others will be responding. It sure does makes sense what with the buzz in activity lately.

 

[K_Z]

3.Foreign citizens
A.Article III, §2 says that federal courts have jurisdiction over cases between U.S. citizens and foreign nationals/aliens.
i.Federal jurisdiction remains if suit is between two U.S. citizens with an alien added as an additional plaintiff or defendant. [28 U.S.C. §1332(a)(3)]

http://www.onelbriefs.com/outlines/civpro/diversity_jurisdiction.htm

This seems to indicate the case could remain in federal court if Mary is permitted to bring the case as a U.S. citizen, and Pari as a resident alien "added as an additional plaintiff". However, I can't find a dated reference for this source, so I'm not sure if this language pre-dates the Jan 2012 new Venue Clarification Act.

 

[K_Z]

I had another thought. (Imagine that, lol!)

It is possible that Mary and Pari ARE both U.S. citizens, and the motion to dismiss is because BOTH Mary and Pari as plaintiffs are residents of the SAME state (Missouri). That would mean that there is not "complete diversity" of all plaintiffs and all defendants.

I did find several references that state that the citizenship of the unnamed "Does" cannot be taken into account when there are motions to dismiss based on diversity of citizenship.

 

[*Lash*]

There is/was an MSM article talking about their citizenship. I took a quick look and couldn't find it. When I have time, I will search further and hopefully find it.

Thank you Time for providing the news

 

[screecher]

So what is the time frame when the motion will be answered? Will the judge? Or do the plaintiffs now have to answer the 'motion'?

Thank you K_Z for all this info you put on here so we aren't sitting in limbo.

 

[time]

Thank's so much time! You're awesome. I wonder how quickly the others will be responding. It sure does makes sense what with the buzz in activity lately.

I was wondering the same thing. I think also that Nina was served around the first of the month (give or take). It made me wonder if they are having a difficult time serving the other two as, otherwise, I wouldn't expect much time disparity.

 

[time]

NEW ENTRIES

5 Filed & Entered: 10/15/2013
Notice of Appearance Docket Text: NOTICE of Appearance by Robb Christopher Adkins on behalf of Adam Shacknai (Adkins, Robb) Attorney Robb Christopher Adkins added to party Adam Shacknai(pty:dft)(leh).

6 Filed & Entered: 10/15/2013
Notice of Appearance Docket Text: NOTICE of Appearance by Krista M. Enns on behalf of Adam Shacknai (Enns, Krista) Attorney Krista M. Enns added to party Adam Shacknai(pty:dft) (leh).

7 Filed & Entered: 10/15/2013
Notice of Appearance Docket Text: NOTICE of Appearance by Ian L. Papendick on behalf of Adam Shacknai (Papendick, Ian) Attorney Ian L. Papendick added to party Adam Shacknai(pty:dft)(leh).

8 Filed & Entered: 10/15/2013
Motion to Dismiss/Lack of Jurisdiction Docket Text: MOTION to Dismiss for Lack of Jurisdiction , MOTION to Dismiss for Failure to State a Claim Defendant Adam Shacknai's Notice of Motion and Motion to Dismiss Plaintiffs' Complaint by Adam Shacknai. (Attachments: # (1) Memo of Points and Authorities)(Adkins, Robb)(leh).

 

[time]

[SIZE=-1]Case Number: [/SIZE][SIZE=-1] 3:13-cv-01624-W-NLS[/SIZE]

 

[Carioca]

[SIZE=-1]Case Number: [/SIZE][SIZE=-1] 3:13-cv-01624-W-NLS[/SIZE]

Thanks time! Same law firm JS used for his cease and desist letter, which was signed by Dan K. Webb, Chairman, Winston & Strawn (Chicago office). Very very pricey for a tug boat captain. Why am I not surprised..

http://www.cbs8.com/story/15406681/shacknai-sends-cease-and-desist-letter-to-zahau-family-attorney

 

[time]

Thanks time! Same law firm JS used for his cease and desist letter, which was signed by Dan K. Webb, Chairman, Winston & Strawn (Chicago office). Very very pricey for a tug boat captain. Why am I not surprised..

http://www.cbs8.com/story/15406681/shacknai-sends-cease-and-desist-letter-to-zahau-family-attorney

I thought something sounded familiar! I don't think Adam would be paying for extensive representation by this firm..... nothing beyond an initial letter anyway.

 

[Betty P]

NEW ENTRIES

5 Filed & Entered: 10/15/2013
Notice of Appearance Docket Text: NOTICE of Appearance by Robb Christopher Adkins on behalf of Adam Shacknai (Adkins, Robb) Attorney Robb Christopher Adkins added to party Adam Shacknai(pty:dft)(leh).

6 Filed & Entered: 10/15/2013
Notice of Appearance Docket Text: NOTICE of Appearance by Krista M. Enns on behalf of Adam Shacknai (Enns, Krista) Attorney Krista M. Enns added to party Adam Shacknai(pty:dft) (leh).

7 Filed & Entered: 10/15/2013
Notice of Appearance Docket Text: NOTICE of Appearance by Ian L. Papendick on behalf of Adam Shacknai (Papendick, Ian) Attorney Ian L. Papendick added to party Adam Shacknai(pty:dft)(leh).

8 Filed & Entered: 10/15/2013
Motion to Dismiss/Lack of Jurisdiction Docket Text: MOTION to Dismiss for Lack of Jurisdiction , MOTION to Dismiss for Failure to State a Claim Defendant Adam Shacknai's Notice of Motion and Motion to Dismiss Plaintiffs' Complaint by Adam Shacknai. (Attachments: # (1) Memo of Points and Authorities)(Adkins, Robb)(leh).

Interesting, the lack of jurisdiction argument must be bringing the parties forward. There's no guarantee they'll have success with the argument, the Zahau family's attorney is likely prepared to argue it.

Given some of the high profile cases in the news lately dealing with failure of some prosecutors to re-investigate sketchy cases, this may not be so easily dismissed. The public isn't always as accepting of good ole boy networks sweeping possible criminal activities under the rug.

JMO, of course.

 

[time]

Interesting, the lack of jurisdiction argument must be bringing the parties forward. There's no guarantee they'll have success with the argument, the Zahau family's attorney is likely prepared to argue it.

Given some of the high profile cases in the news lately dealing with failure of some prosecutors to re-investigate sketchy cases, this may not be so easily dismissed. The public isn't always as accepting of good ole boy networks sweeping possible criminal activities under the rug.

JMO, of course.

Good point, Betty! And, I'm thinking the Zahau attorney has considered the other issue also.

 

[*Lash*]

Thanks time! Same law firm JS used for his cease and desist letter, which was signed by Dan K. Webb, Chairman, Winston & Strawn (Chicago office). Very very pricey for a tug boat captain. Why am I not surprised..

http://www.cbs8.com/story/15406681/shacknai-sends-cease-and-desist-letter-to-zahau-family-attorney

Not surprised at all. In my opinion, JS is likely more involved in the WDS and not only helping Adam. It will be interesting to see who Dina hires to represent her. I hope this is a sign the Zahau's are prepared to move forward and JS is not tempting them with money. I know many don't support my opinion, but I believe JS has a lot to lose if the WDS goes forward.

 

[*Lash*]

[SIZE=-1]Case Number: [/SIZE][SIZE=-1] 3:13-cv-01624-W-NLS[/SIZE]

Hey Time thank you for sharing!

Could you add the documents to the reference forum? I cannot add the PDF, only a a screenshot. TIA

 

[Gilgamesh]

Not surprised at all. In my opinion, JS is likely more involved in the WDS and not only helping Adam. It will be interesting to see who Dina hires to represent her. I hope this is a sign the Zahau's are prepared to move forward and JS is not tempting them with money. I know many don't support my opinion, but I believe JS has a lot to lose if the WDS goes forward.

I completely agree with you