FILED
October 19, 2022
CLERK, U.S. DISTRICT COURT
WESTERN DISTRICT OF TEXAS
Reuben Amaro
STANDING ORDER IN CIVIL CASES BY: ________________________________
DEPUTY
ASSIGNED TO JUDGE JASON PULLIAM
The disposition of civil cases will be controlled by the following order:
1. MOTION TO DISMISS FILED PURSUANT TO FEDERAL RULE 12(b)(6)
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):
(1) Counsel shall confer with opposing counsel and provide written notice prior to
filing a Federal Rule 12(b)(6) Motion to Dismiss:
• 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.
(2) 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.
(3) 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).
• 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.
• 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).
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
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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).
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.
2. GENERAL
a. Citations to the Record
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.
All case citations shall use the appropriate Westlaw citation, not Lexis citation.
b. Motions Practice
• 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).
• 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.
3. FEDERAL TORT CLAIMS ACT AND BENCH TRIAL CASES
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
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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).
4. 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 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).
a. Individuals:
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. LLCS, Partnerships, and Unincorporated Associations:
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 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).
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.
c. Corporations:
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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5. REMOVED CASES
a. File the Complete State Court Record
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.
b. Properly Plead Citizenship of all Parties
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 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.
c. Re-file Pending Motions
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.
6. TRIAL PRACTICE
a. Objections to Exhibits
The Court requires pretrial objections to the authenticity and admissibility of exhibits. The Court
will address all evidentiary objections at the Final Pre-trial Conference. The Court strongly favors
the admission of all exhibits at the Pre-trial Conference. A party’s failure to address any
evidentiary objection at the Pre-trial Conference could be cause for waiver of this objection
during trial.
b. Voir Dire
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 Pre-
trial Order.
c. Depositions
Most often, the Court will accept the parties’ agreement to use a deposition at trial even though
the witness is available.
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It is so ORDERED.
JASON PULLIAM
UNITED STATES DISTRICT JUDGE
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