Weems v. Touro Infirmary and SHONO, Inc., No. 07-30160, 2007 WL 1206984 (5th Cir. Apr.25, 2007).

If only Weems and Touro had given the court more than billing addresses for the 299 patients at Touro Infirmary in New Orleans immediately before, during, and after Hurricane Katrina, they might have had a chance to take the road home to Louisiana state court. Instead, they failed to prove that 2/3 of the putative class members are citizens of Louisiana, and could not support application of the local controversy exception to federal jurisdiction under CAFA. But hey, you can’t spend your whole life worrying about your mistakes-make the best of it-maybe we can help. Federal court is not so bad. Try not to think to much about the fact that Preston v. Tenet was sent back to state court under almost the same fact scenario by the same panel on the same day. (Editors’ Note: See the CAFA Law Blog analyses of Preston posted on June 5, 2007 and January 24, 2007).  While the appellate court yelled "Road Trip" to Preston, it kept Weems.  As we were taught at Faber College, let’s analyze why.

Nearly a year after Hurricane Katrina, Weems filed a class action in state court claiming defects and unreasonably dangerous conditions at Touro Infirmary and SHONO (Specialty Hospital of New Orleans) during and after the storm caused harm to the 299 patients present at the time. SHONO removed the case pursuant to CAFA. Weems and Touro moved to remand the case under CAFA’s local controversy exception. The district court agreed and remanded the case.

You might think SHONO’s hope of a federal forum was over. But we’d like to imagine SHONO’s response was: “Over? Did you say “over”? Nothing is over until we decide it is! Was it over when the Germans bombed Pearl Harbor? Hell no!” Fortunately for all the Mardi Gras parade goers at the time, SHONO did not decide the situation absolutely required a really futile and stupid gesture be done on somebody’s part.   Instead, SHONO sought, and received on February 14, 2007, permission to appeal the remand order.  We bet that was an exciting Valentine’s Day for the counsel of SHONO.

The sole issue on appeal was whether Weems and Touro, the parties asserting the local controversy exception, established that two-thirds of the putative class members were citizens of Louisiana, an element essential to proof of the exception on the date of the original petition. The Court reviewed basic citizenship rules: a person’s state of domicile is also his state of citizenship. The determination of domicile requires proof of residence and intent to remain.

Weems and Touro’s citizenship evidence consisted of an affidavit summarizing facts regarding the pre-Katrina billing addresses of the hospitalized patients derived from Touro’s medical records. Weems and Touro argued that this affidavit, combined with the “presumption of continuing domicile” was enough to establish citizenship on the date the petition was filed. The Court rejected this argument.

According to the Court, the billing records alone did not establish residence or domicile. The Court refused to assume that the patients’ pre-Katrina billing addresses reflected their domicile nearly a year after Hurricane Katrina when the petition was filed. The Court compared the proof offered by Weems and Touro to the proof offered in the Preston v. Tenet case, which was consolidated with Weems for the appeal. Preston offered billing addresses, emergency contact information, current addresses for some class members, and affidavits from a representative number of the class members. The Court also listed other types of evidence that could have been presented to support the citizenship argument, including evidence of “where the litigant exercises civil and political rights, pays taxes, owns real and personal property, has driver’s and other licenses, maintains bank accounts, belongs to clubs and churches, has places of business or employment, and maintains a home for his family.” None of this kind of evidence was presented by Weems and Touro, so the district court did not have sufficient basis to conclude 2/3 of the class was comprised of Louisiana citizens. Further, because Weems and Touro never established domicile of any of the class members, the continued domicile presumption was inapplicable.

Obviously not on double secret probation, SHONO wins the day in its appeal. The Court says “even under the exceptional circumstances of the hurricane, attendant flooding, and forced evacuation” plaintiffs must prove citizenship at the relevant time period with more evidence than mere conclusory statements. After pointing out that Weems and Touro “do not even offer an affidavit from the named plaintiffs” [Ouch! Thank you sir may I have another?] the Court continues “Weems and Touro neglected to submit evidence of intent for any member of the proposed class, which vitiated the district court’s ability even to extrapolate a citizenship determination.” As a result, the Court reversed the remand order and the case stayed in federal court.  So, Weems and Touro, grab a brew.  Don’t cost nothin’.