STANDING ORDER IN CIVIL CASES
ASSIGNED TO JUDGE ORLANDO GARCIA
The disposition of civil cases will be controlled by the following Order.
I. RULE 12(b)(6) MOTIONS TO DISMISS
To advance the case efficiently and minimize the cost of litigation, the Court will provide parties
an opportunity to amend their pleadings before considering a Rule 12(b)(6) Motion to Dismiss.
The following procedure must be followed before any party files a Motion to Dismiss under Rule
12(b)(6) in cases where all parties are represented by counsel.
A. P ROCEDURE
1. Before filing a Motion to Dismiss under Rule 12(b)(6), counsel shall confer with
opposing counsel concerning the purported deficiencies and the expected basis of the
Motion. This conference requires a written (email or certified mail) Notification Letter:
(1) advising counsel of the right to amend the pleading under this procedure;
(2) specifying the proposed deficiencies in the pleading; and (3) outlining the deadlines
below.
2. Following this notice, 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.
3. If no Advisory is filed or if the Complaint is not so amended by the established
deadline, the Defendant may file a Rule 12(b)(6) Motion to Dismiss within twenty-one
(21) days of opposing counsel’s receipt of the Notification Letter. If an Amended
Complaint is filed, but the Defendant believes it is still deficient, the conference
process above shall be repeated with respect to the Amended Complaint(s).
a. The Rule 12(b)(6) Motion must include a Certificate of Conference expressly
stating that the Defendant complied with this process and noting that the Plaintiff
did not timely amend its pleading.
b. Any Rule 12(b)(6) Motion filed without this Certificate of Conference will be
stricken.
c. If any party needs additional time to comply with this procedure, it may file an
appropriate motion under Rule 6(b).
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 Rule 12(b)(6) Motion to
Dismiss. Consequently, the Plaintiff will not be allowed an additional opportunity to amend
the Complaint following the grant of a properly filed Rule 12(b)(6) 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).
If the Court denies the Motion to Dismiss and the case goes forward, the Plaintiff may seek leave
of Court to amend the operative Complaint later if the circumstances warrant or require
amendment.
Rule 12(a) prescribes time limits for the filing of an answer and for the filing of motions under
Rule 12. The requirements outlined above do not alter the time limits in Rule 12(a). This process
also applies to any Rule 12(b)(6) Motion to Dismiss any counterclaim or crossclaim.
II. GENERAL
A. C ITATIONS
To the record. The facts set forth in any motion shall include a citation to a particular pleading
or other part of the record. The Court will not search the record for evidence and may not
consider any evidence that is not specifically cited in the parties’ briefs.
To authority. All case citations shall use the appropriate Westlaw—not Lexis—citation, when
available.
B. M OTIONS P RACTICE
A party should not file a motion and a separate “Memorandum of Law.” The motion itself should
include the party’s argument and citations to authority supporting the relief sought therein.
The Court may strike any non-dispositive motions that do not include a Certificate of
Conference. See W.D. Tex. R. CV-7(g).
Generally, the Court disfavors motions to maintain filings under seal and expects parties to draft
such submissions in a manner that does not disclose confidential information. W.D. Tex. R. CV-
5.2(b). 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 citations to authority in support of filing
under seal. The item will be admitted under seal if the court deems such filing to be necessary.
III. FEDERAL TORT CLAIMS ACT AND BENCH TRIALS
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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IV. NOTICE TO PARTIES ASSERTING FEDERAL JURISDICTION IN
DIVERSITY CASES
Under 28 U.S.C. § 1332 there must be complete diversity between plaintiffs and defendants.
Complete diversity requires that all parties on one side of the controversy be citizens of different
states from all parties 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).
A. I NDIVIDUALS
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).
B. LLC S , P ARTNERSHIPS , AND U NINCORPORATED A SSOCIATIONS
The citizenship of an LLC is determined by the citizenship of all 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 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, e.g., Mullins v. TestAmerica, Inc., 564 F.3d
386, 397–98 (5th Cir. 2009).
C. C ORPORATIONS
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(s) 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).
V. REMOVED CASES
A. S TATE C OURT R ECORD
Pursuant to 28 U.S.C. § 1447(b), the removing party or parties shall supplement the record with
all state court pleadings and filings. The supplement shall include the state court docket sheet.
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B. P LEADING C ITIZENSHIP OF A LL P ARTIES
If this 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. See supra Part IV. Failure to supplement the record with proper
citizenship allegations may result in the Court’s remanding this action without further
notice.
C. R EFILE P ENDING M OTIONS
Any motion filed in state court prior to removal that requires resolution by this Court must be
refiled as a new motion.
It is so ORDERED.
____________________________
ORLANDO L. GARCIA
United States District Judge
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