Monday, April 30, 2007

Domicile, CAFA, and Local Controversies

Weems v. Touro (5th Cir. 2007) involved  the CAFA and the plaintiff's burden in establishing the local-controversy exception. Cheryl Weems filed a class-action petition against some medical defendants in Louisiana state court based on events following Hurricane Katrina.  The proposed class comprised patients staying at a hospital when Katrina hit.  The defendants removed under the CAFA, and Weems successfully moved to remand under the local-controversy exception.  The Fifth Circuit reversed, holding that she failed to prove that more than 2/3 of the members of the proposed plaintiff classes were citizens of Louisiana at the time of filing

Weems filed the suit about a year after Katrina. To prove the citizenship of the class, Weems produced hospital forms on which more than 2/3 of the class identified a Louisiana primary residence.  Of course, these forms were filled out before Katrina hit.  The court held that Weems did not meet her burden of proving domicile at the time of filing.   The relevant time to determine citizenship is at filing, not at the injury-causing event. Plaintiff sued a year after the event (and the forms were signed before then).  Given the mass relocations after Katrina a year-old indication of residency was not sufficient.  Anyway, residence does not equal domicile--the party must prove residence plus an intent to remain indefinitely. Weems argued for a presumption of continuing domicile.  The problem with that was she never proved an initial domicile to continue -- she proved an initial residence. Thus, Weems failed to prove current domicile directly (because the forms were too old and only indicated residence),  and plaintiff's allegation of previous residence did not establish a previous domicile and therefore could not give rise to a presumption of continuing domicile. --RR

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