Mona, Jr. v. CV Sciences, Inc.

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA MICHAEL J. MONA, JR., Case No.: 2:21-cv-02196-APG-DJA 4 Plaintiff Order to Supplement Briefing v. CV SCIENCES, INC., 7 Defendant 8 Defendant CV Sciences, Inc. moves to dismiss plaintiff Michael J. Mona’s complaint.

9 CV Sciences argues that Mona’s claims are barred because they are compulsory counterclaims that Mona should have asserted in a prior California state court action that CV Sciences brought against Mona. That action is stayed while the parties pursue arbitration. Mona argues that he can bring his claims in a separate federal case because they do not arise out of the same factual transaction or occurrence as the California case. Because neither party has sufficiently briefed the applicable law, I order each party to file a supplemental brief.

15 To determine whether a counterclaim was compulsory in a state court case, I look to the law of the state in which the state case was filed. Pochiro v. Prudential Ins. Co. of Am., 827 F.2d 17 1246, 1249 (9th Cir. 1987); Fox v. Maulding, 112 F.3d 453, 456-57 (10th Cir. 1997); Vashisht- Rota v. Howell Mgmt. Services, 837 Fed. Appx. 602, 602 (9th Cir. 2021). Here, California law applies. Under California law, if a defendant fails to assert a compulsory counterclaim against the plaintiff at the time the answer is served, that counterclaim is waived. Cal. Code of Civil Procedure § 426.30(a). However, a defendant who fails to raise a compulsory counterclaim does not waive that claim if he never filed an answer in the action. Id. § 426.30(b)(2). ] Neither party addressed this law or indicated whether Mona filed an answer in the state court case. Consequently, I direct the parties to file supplemental briefs addressing this issue.

3 I THEREFORE ORDER that by September 2, 2022, each of the parties shall file a supplemental brief of no more than five pages to address whether the counterclaims were compulsory under California law.

6 DATED this 16th day of August, 2022.

8 ANDREW P.GORDON sits 9 UNITED STATES DISTRICT JUDGE 1]