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Important Case in 9th Circuit. Erie Doctrine Analyzed And Confirmed

April 17, 2015

I have explained this ERIE DOCTRINE in several prior emails to foreclosure advocates. Now our NINTH CIRCUIT reiterates IN WRITING exactly what I have preached for years.

When you are in FEDERAL COURT the federal court applies FEDERAL RULES OF PROCEDURE; however, where there is a SUBSTANTIVE ISSUE the federal court must APPLY STATE LAW to the ISSUE.

This is partly because State laws CODIFIED old common law principles. There is not "federal common law" to this is why each federal court applies STATE LAW to substantive issues (federal law only as to PROCEDURAL issues).

DOWNLOAD this case and SAVE it to your HARD DRIVE as it will apply to all FEDERAL COURTS IN 9th circuit READ IT CAREFULLY and apply it to your issues in FEDERAL COURT.

Remember waiver of RIGHT TO JURY TRIAL is very important SUBSTANTIVE ISSUE and State law must be applied to it. It is guaranteed under USSC 6th amend. and under CA Constitution ALWAYS INVOKE IT.

Whenever you file a case in federal court always INCLUDE in your first page CAPTION (under causes of action in fed case, request for attorney fees AND "DEMAND for JURY TRIAL where entitled under FRCP 38) not only must you include it in the CAPTION on first page, YOU MUST ALSO INCLUDE IT in the BODY of your federal complaint as a numbered paragraph near the end:

"Plaintiff DEMANDS A JURY TRIAL on all issues in which plaintiff is entitled under FRCP 38 and UNDER STATE LAW"

Even after you include it in your original complaint, IN ADDITION after defendant(s) answer, FILE ANOTHER "Notice of DEMAND FOR JURY TRIAL" in a SEPARATE PLEADING" to ensure NOTICE

It does not cost anything to file a follow-up notice as all pleadings are filed and served ELECTRONICALLY IT COSTS YOU NOTHING but will ensure you did not "waive" a right to a jury trial.

If you do not follow the above procedures you risk being shut out of a jury for failure to properly DEMAND IT and NOTICE IT.

 

County of Orange v. U.S. Dist. Court for Cent. Dist. of Cal.
Docket: 14-72343 Opinion Date: April 16, 2015
Areas of Law: Contracts

The County of Orange, California (County) filed a breach of contract action in federal district court against Tata American International Corporation after Tata America did not perform its obligations under the contract to the County’s satisfaction. The complaint included a jury trial demand. Tata America moved to strike the County’s jury demand, arguing that the County waived its right to a jury trial by signing the contract, which contained a jury trial waiver. The district court granted Tata America’s motion to strike, concluding (1) federal law, rather than California law, governed the question of whether the County waived its right to a jury trial in federal court; and (2) the County knowingly and voluntarily waived its right to a jury trial. The Ninth Circuit granted the County’s petition for writ of mandamus, holding (1) the federalism principle announced in Erie R. Co. v. Tompkins requires federal courts sitting in diversity to import state law governing jury trial waivers where, as here, state law is more protective than federal law of the jury trial right; and (2) under California law, the parties’ contractual jury trial waiver was unenforceable, and therefore, the district court erroneously deprived the County of a jury trial when it granted Tata America’s motion to strike.

Read more.

 

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Nancy Duffy McCarron, CBN 164780
Attorney, Real Estate Broker, BBB Arbitrator, CA Notary Public
Certified Forensic Loan Auditor, Property Manager

 

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CFLA was founded by the Nation's Leading Foreclosure Defense Attorneys back in 2007 to serve the Foreclosure Defense Industry and fight pervasive Bank Fraud. Since opening our virtual doors, CFLA has rapidly expanded to become the premier online legal destination for small businesses and consumers. But as the company continues to grow, we're careful to hold true to our original vision. For us, putting the law within reach of millions of people is more than just a novel idea—it's the founding principle, just ask Andrew P. Lehman, J.D.. With convenient locations in Houston and Los Angeles, you can contact Our National Account Specialist and General Manager / Member Damion W. Emholtz at 888-758-2352 for a free Mortgage Fraud Analysis or to obtain samples of work product, including cutting edge Bloomberg Securitization Audits, Litigation Support, Quiet Title Packages, and for more information about our Nationally Accredited and U.S. Department of Education Approved "Mortgage Securitization Analyst Training Certification" Classes (3 days) 24 hours for approved CLE & MCLE Credit (Now Available Online).

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