Case 6:24-cv-00433-FB Document 6 Filed 08/23/24 Page 1 of 5
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO ANTONIO DIVISION
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`§§
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`§§
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`§ CIVIL ACTION NO. WA-24-CV-433-FB
`§
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`§§
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`§
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`AGIS SOFTWARE DEVELOPMENT LLC,
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`Plaintiff,
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`VS.
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`SNAP INC.,
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`Defendant.
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`STANDING ORDER IN CIVIL CASES
`ASSIGNED TO JUDGE FRED BIERY
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`The disposition of civil cases will be controlled by the following order:
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`A.
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`MOTION TO DISMISS FILED PURSUANT TO FEDERAL RULE 12(b)(6)
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`To advance the case efficiently and minimize the cost of litigation, the Court will provide
`parties an opportunity to amend their pleadings once before considering a Federal Rule 12(b)(6)
`Motion to Dismiss. The following procedure must be followed before any party files a Motion
`to Dismiss under Federal Rule 12(b)(6):
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`1.
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`Counsel shall confer with opposing counsel and provide written notice prior to
`filing a Federal Rule 12(b)(6) Motion to Dismiss:
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`To facilitate the efficient progression of litigation, a party or counsel who anticipates
`filing a Motion to Dismiss under Federal Rule 12(b)(6) must first confer with
`opposing counsel concerning the proposed deficiencies and the expected basis of the
`Motion. This conference shall include written (email or certified mail) notification
`of the Plaintiff’s right to amend the pleading under these procedures, specifying the
`proposed deficiencies and the deadlines below.
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`Following this notification conference, if the Plaintiff intends to amend the pleading,
`the Plaintiff shall file an Advisory of such intent with the Court within seven (7) days
`of receipt of the notification letter. The Amended Complaint must be filed within
`seven (7) days of the filing date of the Advisory.
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`If the Complaint is not so amended by the established deadline, the Defendant may
`file a Federal Rule 12(b)(6) Motion to Dismiss. If the Defendant believes any
`Amended Complaint is still deficient, the Defendant shall file the Motion within the
`time prescribed by Federal Rule 12(a).
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`2.
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`3.
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`Case 6:24-cv-00433-FB Document 6 Filed 08/23/24 Page 2 of 5
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`a.
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`b.
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`When a party files a Motion to Dismiss under Federal Rule 12(b), a
`Certificate of Conference shall accompany the Motion expressly stating the
`movant complied with this Standing Order by informing the Plaintiff of the
`basis of any anticipated motion, the date of this notice, and noting the non-
`movant did not timely amend its pleading or the amended pleading is still
`deficient.
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`The Court will strike any Federal Rule 12(b) Motion to Dismiss if it does not
`contain the required Certificate of Conference, which may preclude its
`re-filing given the time limits prescribed in Federal Rule 12(a).
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`Under this practice, the Plaintiff has already been provided notice of the proposed
`deficiencies and the opportunity to amend the pleading prior to the filing of a Motion to Dismiss.
`Consequently, if the Court finds any Motion to Dismiss has merit, the Plaintiff shall not be allowed
`an additional opportunity to amend its Complaint following a properly filed Motion to
`Dismiss. See Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th
`Cir. 2002); Herrmann Holdings Ltd. v. Lucent Techs. Inc., 302 F.3d 552, 567 (5th Cir. 2002).
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`If the Court denies the Motion to Dismiss and the case goes forward, the Plaintiff may seek
`leave of Court to amend the live Complaint later if circumstances warrant or require amendment.
`Federal Rule 12(a) prescribes time limits for the filing of an Answer and for the filing of motions
`under Federal Rule 12. The requirements of this Standing Order should not preclude or interfere with
`these time limits.
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`B.
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`GENERAL
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`1.
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`Citations to the Record
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`a.
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`b.
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`The facts set forth in any motion shall be stated in separately numbered
`paragraphs with citation to a particular pleading or other part of the record
`supporting the party’s statement. All positions and statements contained in
`the body of any motion or any responses must contain specific cites to the
`record supporting the party’s statement. The Court will not search the record
`for evidence and may not consider any evidence that is not specifically cited
`in the parties’ briefs.
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`All case citations shall use the appropriate Westlaw citation, not Lexis
`citation.
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`2.
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`Motions Practice
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`a.
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`b.
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`A party should not file a Motion and separate “Memorandum of Law.” The
`Motion, itself, should include the party’s argument and citation authority
`supporting the relief it seeks.
`The Court will strike non-dispositive motions that do not include a Certificate
`of Conference. W.D. Tex. Civ. R. 7(g).
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`c.
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`The Court disfavors motions to maintain filings under seal, and the Court
`expects parties to draft such submissions in a manner that does not disclose
`confidential information. W.D. Tex. Civ. R. 5.2(b). Proper redaction is
`preferable to sealing a case or a particular filing. Even when filing a
`document under seal may be warranted, it is better for the sealed document
`to be an exhibit rather than the entire filing. If a party wishes to file a
`pleading, motion, or exhibit under seal, the party must first obtain leave of
`court by motion with citation to authority supporting the filing under seal.
`The item will be admitted under seal if the Court deems such filing to be
`necessary.
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`C.
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`FEDERAL TORT CLAIMS ACT AND BENCH TRIAL CASES
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`Motions for summary judgment are highly disfavored in any case in which the Court will
`serve as the factfinder and in any case asserting a cause of action under the Federal Tort Claims Act
`in which parties do not have a right to a jury trial under 28 U. S. C. § 2402 and Carlson v. Green,
`446 U.S. 14, 22 (1980). Consequently, the basis for any motion for summary judgment in these cases
`should be restricted to purely legal issues (e.g., whether a legal duty exists, the affirmative defense
`of statute of limitations, or failure to exhaust administrative remedies).
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`D.
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`NOTICE TO PARTIES ASSERTING FEDERAL JURISDICTION IN DIVERSITY
`CASES
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`Under 28 U.S.C. § 1332 there must be complete diversity between plaintiffs and defendants.
`Complete diversity requires that all persons on one side of the controversy be citizens of different
`states from all persons on the other side. The party asserting federal jurisdiction in a diversity action
`has the burden to demonstrate complete diversity. Howery v. Allstate Ins. Co., 243 F.3d 912, 916
`(5th Cir. 2001). Parties must make “clear, distinct, and precise affirmative jurisdictional
`allegations.” MidCap Media Fin., L.L.C. v. Pathway Data, Inc., 929 F.3d 310, 313 (5th Cir. 2019).
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`
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`1.
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`Individuals:
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`For individuals, pleading residence is insufficient; the notice of removal must plead
`their citizenship. MidCap Media Fin., L.L.C. v. Pathway Data, Inc., 929 F.3d 310,
`313 (5th Cir. 2019).
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`2.
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`LLCs, Partnerships, and Unincorporated Associations:
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`a.
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`The citizenship of a limited-liability business organization is determined by
`the citizenship of its members. Harvey v. Grey Wolf Drilling Co., 542 F.3d
`1077, 1080 (5th Cir. 2008). Similarly, the citizenship of a partnership is
`determined by the citizenship of all its partners. Carden v. Arkoma Assocs.,
`494 U.S. 185, 195-96 (1990); Corfield v. Dallas Glen Hills, L.P., 355 F.3d
`853, 856 n.3 (5th Cir. 2003). “A party seeking to establish diversity
`jurisdiction must specifically allege the citizenship of every member of every
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`Case 6:24-cv-00433-FB Document 6 Filed 08/23/24 Page 4 of 5
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`LLC or partnership involved in a litigation.” Settlement Funding, L.L.C. v.
`Rapid Settlements, Ltd., 851 F.3d 530, 536 (5th Cir. 2017). When members
`or partners are themselves entities or associations, citizenship must be traced
`through however many layers of members/partners there are until arriving at
`the entity that is not a limited liability entity or partnership and identifying its
`citizenship status. See Mullins v. TestAmerica, Inc., 564 F.3d 386, 397-98
`(5th Cir. 2009).
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`b.
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`If the members of an LLC or partners of a partnership are unknown to the
`removing party even after a diligent investigation, the removing party may
`allege its citizenship on information and belief. Lincoln Ben. Life Co. v. AEI
`Life, LLC, 800 F.3d 99 (3d Cir. 2015). Before doing so, the removing party
`should consult the sources at its disposal, including court filings and other
`public records to ensure good faith pleading. Id. at 108.
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`
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`3.
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`Corporations:
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`a.
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`A corporation is a citizen of its state(s) of incorporation and of the state in
`which its principal place of business is located, as determined by the “nerve
`center” test. 28 U.S.C. § 1332(c)(1); Lincoln Property Co. v. Roche, 546 U.S.
`81 (2005); Hertz Corp. v. Friend, 559 U.S. 77 (2010). The removing party
`must allege both a corporation’s state of incorporation and its principal place
`of business. MidCap Media Fin., L.L.C. v. Pathway Data, Inc., 929 F.3d
`310, 314 (5th Cir. 2019).
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`E.
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`REMOVED CASES
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`1.
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`File the Complete State Court Record
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`Pursuant to 28 U.S.C. § 1447(b) the removing party(ies) shall supplement the record
`with all state court pleadings and filings. The supplement shall include the docket
`sheet from the state court.
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`2.
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`Properly Plead Citizenship of All Parties
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`If the case has been removed on the basis of diversity jurisdiction under 28 U.S.C.
`§ 1332, the removing party has the burden to demonstrate there is complete diversity
`by properly pleading the citizenship of all parties as discussed previously. Failure to
`supplement the record with proper citizenship allegations may result in remand of
`this action by the Court without further notice.
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`3.
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`Re-File Pending Motions
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`Any motion filed in the state court before removal that still requires resolution in this
`Court must be re-filed as a new motion in this Court.
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`F.
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`TRIAL PRACTICE
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`1.
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`Objections to Exhibits
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`The Court requires pretrial objections to the authenticity and admissibility of
`exhibits. The Court will address all evidentiary objections at the Final Pretrial
`Conference. The Court strongly favors the admission of all exhibits at the Pretrial
`Conference. A party’s failure to address any evidentiary objection at the Pretrial
`Conference could be cause for waiver of this objection during trial.
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`2.
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`Voir Dire
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`The Court will conduct a preliminary examination of the jury panel. Following the
`Court’s examination, each side may be allowed the opportunity to examine the panel
`briefly, provided proposed voir dire questions were properly submitted in accordance
`with the Court’s Final Pretrial Order.
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`It is so ORDERED.
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`SIGNED this 23rd day of August, 2024.
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` ________________________________________________
` FRED BIERY
` UNITED STATES DISTRICT JUDGE
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