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Loeb v. Vergara

United States District Court, E.D. Louisiana

May 18, 2018

NICK LOEB, HUMAN EMBRYO #3 HB-A, AND HUMAN EMBRYO #4 HB-A
v.
SOFIA VERGARA

         SECTION "S" (1)

          ORDER

          MARY ANN VIAL LEMMON JUDGE

         ORDER AND REASONS 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.

         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 is 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 “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 Plaquemine 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 Plaquemine, 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.[1] Vergara 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.[2]

         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 statue'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 child. 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 ...


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