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Human Embryo #4 HB-A v. Vergara

United States District Court, E.D. Louisiana

August 25, 2017

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 THE EMMA AND ISABELLA LOUISIANA TRUST NO. 1
v.
SOFIA VERGARA

         SECTION "S" (1)

          ORDER AND REASONS

          MARY ANN VIAL LEMMON, UNITED STATES DISTRICT JUDGE.

         IT IS HEREBY ORDERED that Defendant's Motion to Dismiss for Lack of Personal Jurisdiction (Doc. #3) is GRANTED, and the case is DISMISSED.

         IT IS FURTHER ORDERED that Plaintiffs' Motion to Remand (Doc. # 10) is DISMISSED AS MOOT

         BACKGROUND

         This matter is before the court on a motion to dismiss filed by defendant, Sofia Vergara. Vergara argues that this matter must be dismissed because she is not subject to personal jurisdiction in Louisiana.[1]

         It is also before the court on a motion to remand this matter to the Twenty-Fourth Judicial District Court, Parish of Jefferson, State of Louisiana filed by plaintiffs, 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 (the "Louisiana Trust"), and James Charbonnet, in his capacity as Trustee of Emma and Isabella Louisiana Trust No. 1. Plaintiffs argue that this court lacks diversity subject matter jurisdiction under 28 U.S.C. § 1332, because the embryos, "Emma" and "Isabella", have the same citizenship as Vergara and the jurisdictional minimum amount in controversy is not satisfied. Plaintiffs also argue that this court lacks federal question subject matter jurisdiction under 28 U.S.C. § 1331, because there are no federal questions raised on the face of the state court petition.

         Sofia Vergara, a citizen of California, is an actress and model. On January 17, 2010, she met Nicholas Loeb in West Hollywood, California. Loeb is a citizen of Florida, who also has an apartment in New York City. Vergara and Loeb embarked on a romantic relationship. They saw each other primarily in California, Florida and New York, staying at each other's residences. 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 that would be carried to term by a gestational surrogate. Vergara and Loeb selected a friend and employee of Vergara to be the surrogate and entered into a Gestational Surrogate Parenting Agreement with her. Then, Vergara and Loeb underwent the IVF process, which resulted in several pre-embryos. After genetic testing was performed on the pre-embryos, it was determined that only two of the pre-embryos were viable. On two separate occasions, attempts were made to implant one of the pre-embryos into the surrogate's uterus. Both attempts were unsuccessful.

         In the summer of 2013, Vergara and Loeb met in Los Angeles, California with a representative from a surrogacy agency to discuss finding another gestational surrogate. Loeb claims that he, Vergara and the agency signed a "Surrogacy Program Retainer Agreement." The agency presented two candidates to Vergara and Loeb. On June 24, 2013, Vergara told Loeb by email that she wanted to meet both candidates in person. That same day, Loeb sent an email to the agency indicating that he and Vergara planned to meet the surrogacy candidates in August 2013, when he and Vergara would both be in California.

         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"). Loeb claims that the documents were signed on the same day that they were presented to him and Vergara, and that neither he nor Vergara was able to consult legal counsel or modify the documents.

         The Form Directive provided three options for the embryos in the event of Vergara's and/or Loeb's death: (1) donate the embryos to research; (2) thaw the embryos with no further action; or, (3) if one party died, allow the embryos to be used by the living partner. According to Loeb, Vergara forced him to choose option number 2. The Form Directive requires both parties to consent to uterine transfer of the pre-embryos.

         The November 2013 IVF procedure resulted in several pre-embryos. However, genetic testing of the pre-embryos revealed that only two were viable. Because Loeb and Vergara had not chosen another surrogate, the two viable female pre-embryos were cryopreserved at ART in California, where they remain. Loeb named these pre-embryos "Emma" and "Isabella."

         According to Vergara, in March 2014, she and Loeb began discussing ending their relationship. She claims that they spent several weeks together in April 2014, in Florida where they saw a therapist and agreed to end their relationship.

         From May 1, 2014, until July 4, 2014, Vergara rented a house in New Orleans, Louisiana where she was filming a movie. On May 3, 2014, Vergara and Loeb attended the White House Correspondents Dinner together as they had previously planned. At that time, Loeb asked Vergara if he could stay with her in New Orleans while he did his first stint as a volunteer deputy at the Plaquemines Parish Sheriffs Office. Vergara claims that she and Loeb arrived in New Orleans on May 7, 2014, and resided together until Loeb left on May 12, 2014. Vergara claims that there was no argument or discussion, and they publically announced their breakup on May 23, 2014. Loeb returned to New Orleans in June 2014, in a failed attempt to reconcile with Vergara.

         Loeb recounts the events surrounding the breakup differently. Loeb claims that he and Vergara argued about their relationship on May 12, 2014, and that they were in communication as he drove to the Louis Armstrong New Orleans International Airport on May 13, 2014, where their relationship ended. Loeb asserts that, even after the relationship ended, he repeatedly attempted to communicate with Vergara about the pre-embryos and his desire to have them transferred to a surrogate for further development, but she was unwilling to allow it. Loeb also claims that he asked Vergara to confirm that the pre-embryos would not be destroyed, to allow the surviving person to have custody if the other should die, or to give him full custody, and Vergara has refused all of the above.

         Vergara claims that Loeb did not bring up the subject of the pre-embryos when their relationship ended, and that she does not recall having any conversations with him about the pre-embryos while she was in Louisiana. According to Vergara, in September 2014, she received a telephone message from a lawyer representing Loeb asking for her attorney's contact information, but she did not respond. Vergara was in New York at the time, and texted Loeb to ask why the lawyer contacted her. She met with Loeb, who for the first time, brought up the ...


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