Federal court tosses Sofia Vergara pre-embroyo lawsuit, cites lack of jurisdiction

By Angela Underwood | Sep 2, 2017

NEW ORLEANS – The U.S. District Court for the Eastern District of Louisiana has granted actress Sofia Vergara's motion to dismiss the complaint filed by her ex-fiancé over the custody of two frozen pre-embryos.

Judge Mary Ann Vial Lemmon dismissed the case for lack of jurisdiction on Aug. 25.

Vergara, who plays Gloria in ABC’s "Modern Family," had a complaint against her by her ex-fiancé Nick Loeb regarding her frozen pre-embryos. The couple is now estranged. 

Loeb named the pre-embryos Emma and Isabella and filed a suit in December 2016 in 24th Judicial District Court in Jefferson Parish.

“Therefore, Emma and Isabella seek that they be entrusted to their natural father Loeb, who is willing and desirous that they be born and become eligible to receive their inheritance,” according to the original suit.

According to the decision, the couple's backstory dates to 2010 when they met in California. Vergara, a Hollywood resident, and Loeb, a Florida resident, who also owned a New York apartment, became engaged two years later in 2012. Early the next year, Vergara and Loeb began in vitro fertilization with ART Reproductive Center in Beverly Hills, using a gestational surrogate. However two attempts to implant the only two viable embryos failed on two separate occasions, the decision states.

An ART form directive signed by the parties offered three options regarding the two embryos if either Vergara or Loeb died before a successful implant, including “donate the embryos to research; thaw the embryos with no further action; or, if one party died, allow the embryos to be used by the living partner,” according to the opinion, further adding 

Though no longer an exclusive committed couple, Loeb stayed with Vergara in 2014 at a Louisiana house the actress rented while filming a movie in the state, the decision states. 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,” according to the opinion.

“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,” according to the opinion.

The decision states that by the end of 2016, Loeb created the Louisiana Trust for the unborn pre-embryos in the case they were born, which according to the opinion, was done since “Louisiana has the most favorable state laws regarding the rights pertaining to IVF created embryos, which make them juridical people that have the right to sue and be sued and cannot be intentionally destroyed." 

Citing Ruhrgas AG v. Marathon Oil (1999) in her analysis, Lemmon wrote that “jurisdiction is the bedrock of a federal court’s authority to adjudicate the merits of a controversy,” and the Vergara case “subject matter jurisdiction inquiry poses difficult and novel questions.” 

Considering Vergara’s argument that as a property-owning California citizen, she is exempt from Louisiana jurisdiction, the judge wrote that “Vergara states in her affidavit that she does not have continuous and systematic contacts with Louisiana.” 

Lemmon further added that since the couple “underwent the IVF procedure in California and invoked California laws regarding that transaction,” parental rights were only connected to the California contracts signed by the couple, which had nothing to do with Louisiana.

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24th Judicial District Court in Gretna U.S. District Court for the Eastern District of Louisiana

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