Sofia Vergara, the star of TV's "Modern Family" series, has managed to get the bizarre legal tussle between her and her former fiancé moved out of the Louisiana court system.
Now the question is whether she can get a federal judge to toss out the lawsuit — brought on behalf of her Sown frozen embryos — altogether.
Vergara filed a "notice of removal" of the case from a state district court in Gretna to federal court in New Orleans last month, a move that doesn't immediately need a judge's approval.
The move was apparently aimed at pre-empting a ruling based on a state law holding that viable embryos cannot be destroyed. Vergara’s former partner, Nick Loeb, is banking on that statute in order eventually to have the embryos implanted in someone and brought to term.
Indeed, Vergara’s attorneys have argued that Loeb chose Louisiana as the forum for the lawsuit only because of the state law in question.
“Clearly, purported plaintiffs filed this suit in Louisiana in an obvious attempt to 'forum shop' for a venue with a state law that Mr. Loeb believes is favorable to his position,” they said.
The legal feud between Vergara and Loeb had until December been confined to California, where Vergara lives. It also had been concerned only with Loeb’s parental rights.
But in a novel twist, attorneys representing “Emma” and “Isabella” — embryos being preserved in a tank in Beverly Hills — sued in Gretna for the embryos' right to live and obtain an inheritance created for their benefit.
The suit said that Vergara and Loeb lived in Louisiana occasionally in 2013 and 2014, broke up here and created the trust for the embryos here.
It was filed in 24th Judicial District Court a day after Loeb, who lives in Florida, dropped his parental-rights suit after he was ordered by a California judge to name two women he dated years ago who had abortions.
At issue in the lawsuit filed in Gretna is a written agreement between Vergara and Loeb that requires both to give written consent before either one uses the embryos — created through in vitro fertilization — to attempt a pregnancy. Vergara has not given her consent, and she has said she wants the embryos to remain frozen indefinitely.
But Loeb claims the contract should be voided because it did not say what should happen to the embryos if the couple split up. Vergara, who is now married to someone else, also forced him to sign it, he has said.
To Loeb, leaving the embryos frozen is the same as destroying them, because they may not remain viable forever and because the California fertility clinic where they are being stored will destroy them should he or Vergara die, he said.
Thus, he argues, the contract he signed violates Louisiana law, which holds that viable embryos are people who cannot be intentionally destroyed.
Rather than take on that argument directly, Vergara’s attorneys argued in a court filing last month that the embryos’ case should actually be tried in federal court.
That’s in part because a person’s rights to procreate and to privacy under the U.S. Constitution pre-empt Louisiana laws protecting embryos, the lawyers said, and also because the case will require an “adjudication of questions of federal law.”
The case was then moved to U.S. District Court in New Orleans, where Vergara’s lawyers argued that a judge should in fact dismiss the suit.
Vergara lives in California, not Louisiana, they said, and “her presence in Louisiana has been limited to a single, two-month stay in 2014 and sporadic visits for work or vacation.”
Also, they said, the events related to the litigation happened in California. That is where the embryos were created and are stored, and that is where the agreement was signed.
Loeb and the facility that is storing the embryos should also have been added to the litigation, they argued. Since they were not, the case should be dismissed on that point as well.
In court documents, Vergara also claimed she had no idea that a trust was set up and that she has never contributed to it.
“Mr. Loeb obviously set up this trust ... for the sole purpose of fabricating a scenario whereby alleged third parties could bring suit against Ms. Vergara in Louisiana — which, by no coincidence, is the only state that purportedly provides special rights to embryos.” the suit said.
No response has yet been filed by local lawyer James Arruebarrena or the Washington, D.C.-based group called Sound Legal Group and attorney Catherine Glenn Foster, the attorneys representing the embryos.