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Volume 13 Number 48 News: Professional Liability A Louisiana federal district court Feb. 27 declined to exercise jurisdiction over an action against a nursing home that failed to protect its residents from Hurricane Katrina (Martin v. Lafon Nursing Facility of Holy Family Inc., E.D. La., No. 06-5108, 2/27/08). The U.S. District Court for the Eastern District of Louisiana determined that the "home state" and "local controversy" exceptions to the federal Class Action Fairness Act (CAFA) required remand to state court of a class action brought by Cheryl Martin. Martin's mother, a resident of the Lafon Nursing Facility of the Holy Family, died at the nursing home after the storm. Questionnaires provided to the court by Martin indicated that the majority of putative class members were citizens of Louisiana when the case was filed, the court said. Although not all of the questionnaires were returned, the court said the ones received reasonably indicated that most potential class members were Louisiana residents. As this was the only contested issue in the case, the court concluded that remand was appropriate. Post-Katrina Injuries Lafon owned and operated a nursing home in New Orleans. Martin alleged that when Hurricane Katrina made landfall, Lafon failed to take necessary precautions to protect her mother and other residents. As a result, she said, her mother suffered mental and physical injuries and died on Lafon's premises. Martin filed a negligence, survival, and wrongful death action against Lafon in state court. She also requested certification as a class action, defining the class as all persons (except Lafon's employees) who sustained injury as a result of Lafon's failure to timely remove people from its premises or provide adequate medical care for them in the wake of Hurricane Katrina. Lafon removed the action to federal court pursuant to CAFA, 28 U.S.C. §1332(d). Martin filed a motion to remand. In an opinion by Judge Lance M. Africk, the court explained that CAFA allows removal of a class action to federal court when there is minimum diversity--that is, when at least one plaintiff and one defendant are residents of different states--and the amount in controversy exceeds $5 million. However, the statute excepts local controversies from federal subject matter jurisdiction. A local controversy is one in which more than two-thirds of the putative class members and at least one defendant from whom plaintiffs can seek significant relief are residents of the state where the action was filed and the principal injuries were incurred there. CAFA also provides a "home state" exception that applies when two-thirds or more of the putative class members and the primary defendants are citizens of the state where the action was filed. Citizenship of Parties The only controversy here, the court said, was the citizenship of the proposed class members. For purposes of federal jurisdiction, citizenship is synonymous with domicile or where the person lives. A person acquires domicile at birth and is presumed to live there absent physical presence in a different place with an intention to remain there. In this case, the responses to the questionnaires indicated that most putative class members were Louisiana citizens when the case was filed, the court found. It rejected Lafon's argument that Martin deliberately designed the questionnaire to elicit this result, saying that defendant could have objected to the language of the questionnaire, but did not. Also, it said, Lafon did not present evidence that the responses misrepresented the class members' intent to remain in or return to Louisiana after Katrina. The court also rejected Lafon's claim that the process used to obtain responses to the questionnaire was unfairly skewed toward receiving responses only from persons in Louisiana. Quoting the U.S. Court of Appeals for the Fifth Circuit, the court noted that "the circumstances surrounding Hurricane Katrina require an evidentiary standard based upon practicality and reasonableness." The fact that not all potential class members--especially those outside Louisiana--received the questionnaire did not preclude the court from making a preliminary jurisdictional determination, it said. The questionnaires that were returned, together with patients' emergency contact information, reasonably indicated that most putative class members were Louisiana residents, the court said. Again, it noted the Fifth Circuit's call for flexibility in post-Katrina cases, where, the appellate court said, "it is unreasonable to demand precise empirical evidence of citizenship." In cases like this one, the Fifth Circuit wrote, the "law of continuing domicile gains special significance." Discretionary Exception The court further held that CAFA's discretionary exception enabled it to decline jurisdiction over the case. It noted that Martin's claims were made against a Louisiana business for its alleged actions during a natural disaster that "uniquely affected New Orleans." The action did not involve national or interstate matters, it said. And, the court pointed out, the claims were based on state law, and the conduct that formed the basis of the suit took place in Louisiana, where Lafon was incorporated and had its principal place of business. The court concluded that this case "symbolizes a quintessential example of Congress' intent to carve-out exceptions to CAFA's expansive grant of federal jurisdiction when our courts confront a truly localized controversy." Roderick Alvendia, Jeanne K. Demarest, and John Bartholomew Kelly III, of Alvendia, Kelly & Demarest, New Orleans; Laurence Edward Best, Peter Stephen Koeppel, and Peggy Wallace, of Best Koeppel, New Orleans; Val Patrick Exnicios and Amy Collins Fontenot, of Lisca, Exnicios & Nungesser, New Orleans; Mark Philip Glago, of the Glago Law Firm; and Anthony D. Irpino, of the Irpino Law Firm, New Orleans, represented Martin. Richard Edward McCormack, Douglas J. Moore, Darleene D. Peters, and Quentin F. Urquhart Jr., of Irwin Fritchie Urquhart & Moore, New Orleans, represented Lafon. Full text is available.
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