Loeb v. Vergara
Loeb v. Vergara
Opinion of the Court
IT IS HEREBY ORDERED that Plaintiffs' Motion to Remand (Doc. # 12) is GRANTED , and this matter is REMANDED to the 25th Judicial District Court, Parish of Plaquemines, State of Louisiana.
IT IS FURTHER ORDERED that Defendant's Motions to Dismiss the Complaint *299and Amended Complaint (Docs. # 5 & 30) are DISMISSED as moot.
BACKGROUND
This matter is before the court on plaintiffs' motion to remand this matter to the 25th Judicial District Court, Parish of Plaquemines, State of Louisiana for lack of subject matter jurisdiction. Plaintiffs, Nick Loeb, Human Embryo # 3 HB-A and Human Embryo # 4 HB-A, argue that a federal district court does not have subject matter jurisdiction over this custody dispute. It is also before the court on two motions to dismiss filed by defendant, Sofia Vergara, who argues that this matter must be dismissed because plaintiffs failed to state a claim, she is not subject to personal jurisdiction in Louisiana, this is a court of improper venue, and plaintiffs failed to join all necessary parties.
Sofia Vergara, a citizen of California, is an actress and model. On January 17, 2010, Vergara met Nicholas Loeb in West Hollywood, California, and the two embarked on a romantic relationship. At the time, Loeb was a citizen of Florida, who also had an apartment in New York City. On July 10, 2012, while they were in Mexico, Vergara and Loeb became engaged to be married.
In early 2013, Vergara and Loeb contracted with ART Reproductive Center, Inc. in Beverly Hills, California to undergo in vitro fertilization ("IVF") in an attempt to create biological children who would be carried to term by a gestational surrogate. Vergara and Loeb underwent the IVF process, which resulted in several embryos. After genetic testing was performed on the embryos, it was determined that only two of the embryos were viable. On two separate occasions, attempts were made to implant one of the embryos into a surrogate's uterus. Both attempts were unsuccessful.
In November 2013, Vergara and Loeb signed another contract with ART in California to undergo another round of IVF. On November 16, 2013, Vergara and Loeb met with staff at ART and signed a "General Informed Consent for Procedures Involved in In Vitro Fertilization," which included the "Directive for Partners Regarding the Storage and Disposition of CryoPreserved Materials Which May Include Embryos" (the "Form Directive"). The Form Directive requires both parties to consent to uterine transfer of the embryos.
The November 2013 IVF procedure resulted in several embryos. However, genetic testing of the embryos revealed that only two were viable. Because Loeb and Vergara had not chosen another surrogate, the two viable female embryos were cryopreserved at ART in California. Loeb named these embryos "Emma" and "Isabella." Loeb and Vergara ended their relationship in May 2014. The embryos remain cryopreserved at ART in California.
In August 2014, Loeb sued Vergara and ART in California state court seeking an order allowing Loeb to try to bring the embryos to term without Vergara's consent. Loeb alleged that venue was proper in California because the acts and omissions giving rise to the case occurred in California.
On November 30, 2016, Loeb created the Louisiana Trust. On December 5, 2016, Loeb modified the Louisiana Trust to benefit "Emma" and "Isabella" if they are born alive and called it the "Emma and Isabella Louisiana Trust No. 1." James Charbonnet, a Louisiana lawyer, was named as the trustee.
On December 6, 2016, Loeb dismissed the California case. On December 7, 2016, Loeb directed that a suit alleging various contract claims against Vergara be filed by Charbonnet on behalf of the Trust and *300"Emma" and "Isabella" in the 24th Judicial District Court, Parish of Jefferson, State of Louisiana. Vergara removed the suit titled [Human Embryo # 4 HB-A, by and through Emma and Isabella Louisiana Trust No. 1, Human Embryo # 3 HB-A, by and through Emma and Isabella Louisiana Trust, No. 1, Emma and Isabella Louisiana Trust No. 1, and James Charbonnet, in his capacity as Trustee of Emma and Isabella Louisiana Trust No. 1, and James Charbonnet, in his capacity as Trustee of Emma and Isabella Louisiana Trust No. 1 v. Sofia Vergara, C/A No. 17-1498 "S"(1) ], to the United States District Court for the Eastern District of Louisiana. Vergara alleged that this court had diversity and federal question subject matter jurisdiction.
Vergara filed a motion to dismiss arguing that she was not subject to personal jurisdiction in Louisiana, this was a court of improper venue, and plaintiffs failed to join ART, which she argued was an indispensable party. Plaintiffs filed a motion to remand, arguing that this court lacked either type of subject matter jurisdiction.
On August 25, 2017, this court held that Vergara was not subject to personal jurisdiction in Louisiana for the claims stated in the litigation. The court chose to address the personal jurisdiction issue first because it was straightforward, whereas the subject matter jurisdiction issue raised novel questions regarding the citizenship of the embryos, the monetary value of the rights asserted in the case, and the constitutionality of Louisiana laws pertaining to IVF created embryos. Plaintiffs did not appeal.
Loeb claims that he moved to Plaquemines Parish, Louisiana in December 2017, and became a Louisiana resident, thereby entitling him to file a custody suit against Vergara under the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), La. Rev. Stat. § 13:801, et seq.
On January 9, 2018, Loeb, on behalf of himself and Human Embryo # 3 HB-A and Human Embryo # 4 HB-A, filed the instant suit against Vergara in the 25th Judicial District Court, Parish of Plaquemines, State of Louisiana invoking the UCCJEA, and seeking full custody of the embryos. Plaintiffs allege the embryos are living children of whom Loeb should be granted full custody because Vergara is violating her "high duty of care and prudent administration" owed to them by refusing to allow them to have the chance to be born. Plaintiffs also alleged in the original complaint that Vergara is violating the embryos' rights to be free from slavery and right to equal protection under the law as guaranteed by the Thirteenth and Fourteenth Amendments to the Constitution of the United States, respectively.
Vergara removed this action to the United States District Court for the Eastern District of Louisiana alleging diversity and federal question subject matter jurisdiction. She filed a motion to dismiss pursuant to Rule 12(b) of the Federal Rules of Civil Procedure arguing that plaintiffs cannot state a cause of action under the UCCJEA; that she is not subject to personal jurisdiction in Louisiana because nothing has changed since this court's previous ruling on that issue; this is a court of improper venue; and, plaintiffs failed to join ART, which she argues is an indispensable party.
Vergara's primary argument is that plaintiffs cannot state a claim under the UCCJEA because the Act pertains to living children, not IVF created embryos.
*301Vergara points to numerous places where the UCCJEA refers to living children. Vergara argues that it would be unconstitutional to apply the Louisiana laws regarding IVF created embryos to the UCCJEA to award custody to Loeb against her will because it would infringe on her rights regarding privacy and procreation.
Plaintiffs argue that they have stated a cause of action under UCCJEA, and that a Louisiana court is the only possible forum for that claim. The hierarchical jurisdiction provision of the UCCJEA state that Louisiana has jurisdiction over a UCCJEA claim if no court of any other state would have jurisdiction under the statute's other jurisdiction provisions, which speak to the home state of the child and other courts declining jurisdiction on the ground that a Louisiana court is the more appropriate forum to determine the custody of the *302child. La. Rev. Stat. § 13:1813(A). Although the embryos were created and are stored in California, plaintiffs contend that a California court would not assume jurisdiction to allocate custody of the embryos because California law views them as property. Plaintiffs argue that Louisiana views the embryos as people, and because no other state would have jurisdiction under to the UCCJEA, a Louisiana court could assume jurisdiction pursuant to La. Rev. Stat. § 13:1813(a)(4), and apply the UCCJEA to award custody to Loeb, the person is acting in the embryos' best interest to give them a chance to be born. Plaintiffs contend that personal jurisdiction over Vergara is not necessary for a UCCJEA claim, a Louisiana court is the proper venue under the provisions of the UCCJEA, and ART is not an indispensable party to this custody action.
Plaintiffs filed a motion to remand arguing that this court lacks subject matter jurisdiction over this case because it is a custody dispute that is beyond the purview of the federal district court. After removal, plaintiffs filed an amended complaint that eliminated the Thirteenth and Fourteenth Amendment claims, and raises only the UCCJEA claim.
ANALYSIS
I. Order of Deciding Personal and Subject Matter Jurisdiction Questions
Jurisdiction is the bedrock of a federal court's authority to adjudicate the merits of a controversy. Ruhrgas AG v. Marathon Oil Co.,
*303
courts facing multiple grounds for dismissal to consider the complexity of subject-matter jurisdiction issues raised by the case, as well as concerns of federalism, and of judicial economy and restraint in determining whether to dismiss claims due to lack of personal jurisdiction before considering challenges to its subject-matter jurisdiction.
Alpine View Co. Ltd. v. Atlas Copco AB,
In this case, Vergara seeks dismissal of plaintiffs' UCCJEA claims under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted. Vergara then argues that, because plaintiffs' cannot state a UCCJEA claim, this case must be dismissed pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure for lack personal jurisdiction over her. Plaintiffs argue that this court does not have subject matter jurisdiction over their UCCJEA claim, and thus cannot dismiss it. Because a court must have subject matter jurisdiction in order to adjudicate the merits of a claim, the court must first consider plaintiffs' motion to remand. See Ruhrgas,
II. Plaintiffs' Motion to Remand (Doc. # 12)
Plaintiffs argue that this matter should be remanded to the 25th Judicial District Court, Parish of Plaquemines, State of Louisiana because this court lacks diversity and federal question subject matter jurisdiction.
A. Remand Standard
Motions to remand to state court are governed by
In assessing whether removal is appropriate, the court is guided by the principle, grounded in notions of comity and the recognition that federal courts are courts of limited jurisdiction, that removal statutes should be strictly construed. See Manguno v. Prudential Prop. & Cas. Ins. Co.,
B. Diversity Subject Matter Jurisdiction
Vergara alleges that this court has diversity subject matter jurisdiction under
The Supreme Court of the United States has held that federal courts lack diversity subject matter jurisdiction over domestic relations cases. Ankenbrandt v. Richards,
Plaintiffs' complaint clearly seeks a custody determination by invoking the UCCJEA. As a result, the domestic relations exception applies, and this court lacks diversity subject matter jurisdiction over plaintiffs' custody claim.
C. Federal Question Subject Matter Jurisdiction
Vergara argues that this court has federal question subject matter jurisdiction over this matter because plaintiffs' alleged in the original complaint claims under the Thirteenth and Fourteenth Amendments, and the resolution of plaintiffs' UCCJEA claim (1) "necessarily depends on the resolution of substantial questions of federal law, and (2) federal law preempts Louisiana's purported definition of the pre-embryos." See Doc. # 20. Vergara is essentially arguing that in order for plaintiffs to state a custody claim under the UCCJEA, a court needs to find that the embryos are people rather than property, which implicates rights regarding privacy and procreation that arise under the Constitution of the United States of America. Vergara argues that the UCCJEA cannot apply because the embryos are not people, and the Louisiana laws pertaining to IVF created embryos are unconstitutional.
Plaintiffs argue that Vergara's constitutional rights are not necessarily implicated in resolving the UCCJEA claim. Plaintiffs contend that Vergara exercised her constitutional right to procreate by consensually engaging in the IVF procedure that led to the creation of the embryos. Plaintiffs contend that the embryos' right to life is paramount, and within the province of state law regarding IVF created embryos. Plaintiffs argue that the State of Louisiana *305should be afforded the opportunity to decide whether the UCCJEA can apply to IVF created embryos, and if it does, whether it can apply to IVF created embryos that were created and are stored in another state. Plaintiffs contend that the application of state law should be determined as a matter of first impression by the Louisiana state courts.
Under
The existence of removal jurisdiction is determined at the time of removal. Cavallini v. State Farm Mutual Auto Ins. Co.,
After removal, plaintiffs amended their complaint to eliminate the Thirteenth and Fourteenth Amendment claims, leaving pending only plaintiffs' state-law UCCJEA. Due to the elimination of the claims over which this court undoubtedly had federal question subject matter jurisdiction, it would appear that if this court accepted jurisdiction over the case the court would be exercising supplemental jurisdiction over plaintiffs' UCCJEA claim pursuant to
Although the UCCJEA, "does not create any federal right of action, as it is a state procedural act[,]" Becker,
Federal question jurisdiction exists if "federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law."
*306Singh,
Plaintiffs seek to use the UCCJEA to determine the custody of the IVF created embryos that were created and are kept in California. Vergara argues that resolving plaintiffs' UCCJEA claim would necessarily involve a ruling on the constitutionality of Louisiana's laws regarding IVF created embryos and her constitutional rights regarding privacy and procreation. Plaintiffs argue that the federal rights Vergara cites are not implicated in this case, which they contend involves purely a determination of the application of state law.
Vergara's arguments regarding her constitutional rights and the constitutionality of the Louisiana laws pertaining to IVF created embryos are defenses to the applicability of the UCCJEA. Indeed, these are the very same reasons that she argues that plaintiffs' UCCJEA claim should be dismissed for failure to state a claim under Rule 12(b)(6). Federal question jurisdiction cannot be based on a defense that raises a federal question. Merrell Dow Pharma. Inc. v. Thompson,
Moreover, complete preemption is inapplicable. Complete preemption is a doctrine of subject matter jurisdiction that "is based on the theory that some federal statutes have such an overwhelming preemptive effect that they do more than merely provide a defense to a state-law claim." 13D Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3566 (3d ed.) Complete preemption is present when "a federal statute 'so forcibly and completely displaces state law that the plaintiff's cause of action is either wholly federal or nothing at all.' " Hoskins v. Bekins Van Lines,
Because the only remaining claim in this case is a state law custody claim over *307which federal courts lack jurisdiction, the motion to remand is GRANTED, and this matter is remanded to the 25th Judicial District Court, Parish of Plaquemines, State of Louisiana.
CONCLUSION
IT IS HEREBY ORDERED that Plaintiffs' Motion to Remand (Doc. # 12) is GRANTED , and this matter is REMANDED to the 25th Judicial District Court, Parish of Plaquemines, State of Louisiana.
IT IS FURTHER ORDERED that Defendant's Motions to Dismiss the Complaint and Amended Complaint (Docs. # 5 & 30) are DISMISSED as moot.
The UCCJEA provides, in pertinent part:
(A) Except as otherwise provided in R.S. 13:1816, a court of this state has jurisdiction to make an initial child custody determination only if:
(1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state, or had been the child's home state within twelve months before commencement of the proceeding and the child is absent from the state because he was required to leave or was evacuated due to an emergency or disaster declared under the provisions of R.S. 29:721 et seq., or declared by federal authority, and for an unforeseen reason resulting from the effects of such emergency or disaster was unable to return to this state for an extended period of time.
(2) A court of another state does not have jurisdiction or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under R.S. 13:1819 or 1820; and
(a) The child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence.
(b) Substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships.
(3) All courts having jurisdiction have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under R.S. 13:1819 or 1820; or
(4) No court of any other state would have jurisdiction under the criteria specified in Paragraph (1), (2), or (3) of this Subsection.
B. Subsection A of this Section is the exclusive jurisdictional basis for making a child custody determination by a court of this state.
C. Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.
La. Rev. Stat. § 13:1813.
Louisiana has unique laws pertaining to IVF created embryos, which are defined as "in vitro human ov[a], with certain rights granted by law, composed of one or more living human cells and human genetic material so unified and organized that it will develop in utero into an unborn child." La. Rev. Stat. § 9:121. An in vitro fertilized human ovum is considered to be "a juridical person until such time as the in vitro fertilized ovum is implanted in the womb; or at any other time when rights attach to an unborn child in accordance with law[,]" and it has the capacity to sue or be sued.
Vergara filed a Motion to Dismiss First Amended Complaint for Failure to State a Claim upon which Relief can be Granted, Lack of Personal Jurisdiction, Improper Venue, and Failure to Join an Indispensable Party (Doc. # 30). Vergara argues that plaintiffs' amended complaint should be dismissed for the same reasons that the original complaint should be dismissed. Although the amended compliant superseded the original complaint, Vergara's arguments in both motions to dismiss pertain to alleged defects common to both complaints. Thus, the court will consider the original motion to dismiss and the second motion to dismiss as being addressed to the amended complaint. 6 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1476 (3d ed.) ("If some defects raised in the original motion remain in the new pleading, the court simply may consider the motion as being addressed to the amended pleading."). However, because this court finds that remanding this matter to the 25th Judicial District Court, Parish of Plaquemines, State of Louisiana is appropriate, Vergara's Motions to Dismiss the Complaint and Amended Complaint (Docs. # 5 & 30) are DISMISSED as moot.
Reference
- Full Case Name
- Nick LOEB, Human Embryo 3 HB-A, and Human Embryo 4 HB-A v. Sofia VERGARA
- Status
- Published