Emergency Application — J. Cory Cordova, Petitioner v. Louisiana State University Agricultural & Mechanical College Board of Supervisors, et al.
Supreme Court briefAug 28, 2023
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No. 23A55
IN THE
Supreme Court of the United States
J. CORY CORDOVA
Applicant,
v.
LOUISIANA STATE UNIVRSITY AGRICULTURAL & MECHANICAL COLLEGE BOARD OF
SUPERVISORS, KAREN CURRY, M.D., KRISTI ANDERSON, LAFAYETTE GENERAL
MEDICAL CENTER, INCORPORATED, LAFAYETTE GENERAL HEALTH SYSTEM,
INCORPORATED, UNIVERSITY HOSPITAL & CLINICS, INCORPORATED, NICHOLAS
SELLS, M.D.,
Respondents.
EMERGENCY APPLICATION FOR STAY OF PRECEEDINGS AND
EXECUTION OF FIFTH CIRCUIT COURT OF APPEALS MANDATE
PENDING DISSOLUTION OF PETITION FOR WRIT OF CERTIORARI
CHRISTINE M. MIRE
Counsel of Record
LAW OFFICE OF
CHRISTINE M. MIRE
2480 YOUNGSVILLE HIGHWAY,
SUITE C
YOUNGSVILLE, LA 70592
(337) 573-7254
CMM@MIRELAWFIRM.COM
Counsel for Applicant
AUGUST 28, 2023
APPENDIX TABLE OF CONTENTS
Lower Federal Courts
Fifth Circuit of Appeals:
Mandate/Judgment
United States Court of Appeals for the Fifth Circuit,
Case Nos. 22-30548, 22-30732 (May 12, 2023) ……………………...……..………………App. 1
Order Denying Stay of Mandate United States
Court of Appeals for the Fifth Circuit,
Case Nos. 22-30548, 22-30732 (May 4, 2023) ……………………….……………..………App. 2
Unpublished Per Curiam Opinion United States Court
of Appeals for the Fifth Circuit,
Case Nos. 22-30548, 22-30732 (April 17, 2023) ……………………………………………App. 5
U.S. District Court Western District of Louisiana:
Judgment – Rule 38 Sanctions (Lafayette General Defendants)
United States District Court for the Western District of Louisiana,
Lafayette Division, Docket No.: 6:19-CV-1027 (August 14, 2023) ………………………App. 13
Memorandum Order Rule 38 award (Lafayette General Defendants)
United States District Court for the Western District of Louisiana,
Lafayette Division, Docket No.: 6:19-CV-1027 (June 29, 2023) …………………………App. 14
Order awarding attorney’s fees (Lafayette General Defendants)
United States District Court for the Western District of Louisiana,
Lafayette Division, Docket No.: 6:19-CV1027 (April 13, 2023) …………………………App. 17
Memorandum Order granting Rule 11 Sanctions (Lafayette General Defendants)
United States District Court for the Western District of Louisiana,
Lafayette Division, Docket No.: 6:19-CV-1027 (February 27, 2023) ……….……………App. 19
Order awarding Rule 11 sanctions (Louisiana State University Sanctions)
United States District Court for the Western District of Louisiana,
Lafayette Division, Docket No.: 6:19-CV-1027 (October 11, 2022) ……….…….………App. 35
ii
Memorandum Ruling Denying Motion to Vacate pursuant to Rule 60(b)
and Granting Rule 11 Sanctions to the LSU Defendants
United States District Court for the Western District of Louisiana,
Lafayette Division, Docket No. 6:19-CV-1027 (August 23, 2022) ………………………App. 36
Judgment Granting Motion for Remand, Rule 54b Certification
prior motion United States District Court for the Western District of Louisiana,
Lafayette Division, Docket No. 6:19-CV-1027 (March 23, 2021) ……….…….…………App. 54
Louisiana State Court:
Notice of Appeal and Bond Order - Sanctions, (Dr. Curry)
J. Cory Cordova v. Lafayette General Health System, Inc., et al.,
Doc. No.: 2022-2976-L ( August 18, 2023) ……….………………………………………App. 56
Rule to Show Cause Direct Contempt of Court, Judgment Debtor Rule,
J. Cory Cordova v. Lafayette General Health System, Inc., et al.,
Doc. No.: 2022-2976-L (August 7, 2023) ……….……………………………..…………App. 61
Ruling on Award Attorney Fees (Sanctions - Res Judicata - Dr. Curry)
J. Cory Cordova v. Lafayette General Health System, Inc., et al.,
Doc. No.: 2022-2976-L (July 17, 2023) ……………………………………...……………App. 63
Judgment Debtor Rule, (Lafayette General Defendants)
J. Cory Cordova v. Lafayette General Health System, Inc., et al.,
Doc. No.: 2022-2976-L (July 5, 2023) …………………………………….....……………App. 65
Judgment and Ruling on Sanctions - Res Judicata, (Lafayette General Defendants) J. Cory
Cordova v. Lafayette General Health System, Inc., et al.,
Doc. No.: 2022-2976-L (March 29, 2023) ……………………………...…...……………App. 72
OTHER
Appendix 16 Emails from attorney James Gibson ……………...……….…...……………App. 76
iii
TABLE OF CONTENTS
Contents
Page(s)
APPENDIX TABLE OF CONTENTS ..........................................................................................ii
TABLE OF CONTENTS ............................................................................................................. iv
TABLE OF AUTHORITIES ....................................................................................................... vi
INTRODUCTION ........................................................................................................................ 1
STATEMENT ............................................................................................................................... 4
A. Factual Background ...................................................................................................... 4
1. An Undisclosed Concurrent Conflict of Interest and Improper Removal ........... 6
2. The Improper Removal ........................................................................................ 9
A. Procedural History ............................................................................................................. 11
1. The Attempted Dismissal of an Indispensable Party ........................................... 11
2. Shifting Burdens of Proof and Assumption of Jurisdiction ................................ 14
3. Gamesmanship v. Candor ................................................................................... 18
4. Subsequent Proceedings in State Court for Injunctive/Declaratory Relief ........ 22
5. Proceedings in District Court Related to Clarification and
Motion for Relief of Judgment Pursuant to Fed. R. Civ. P. 60 ............................ 23
6. Appeal to Fifth Circuit Related to Motion for Relief
Pursuant to Fed. R. Civ. P. Rule 60 (Case Nos.: 22-30548 C/W 22-30732) ...... 24
ARGUMENT ............................................................................................................................. 26
A. APPLICANT IS LIKELY TO PREVAIL ON THE MERITS ................................. 26
1. Respondents, as the Party who Invoked the Jurisdiction of the
Federal Court, Bear the Burden of Establishing Jurisdiction ............................ 26
2. Respondents Lack Standing to Remove the Case as Private Actors ................. 28
iv
3. The Public Interest of the Citizens of Louisiana Favor a Stay .......................... 32
B. THE EQUITIES OVERWHELMINGLY FAVOR A STAY .................................... 33
1. Dr. Cordova Will Experience Substantial and Unrecoverable Harm .................. 33
2. Factual Findings and Objective Evidence in the Record ......................................39
C. THE REAL MOTIVE FOR SANCTIONS ………………......................................42
CONCLUSION .......................................................................................................................... 44
CERTIFICATE OF SERVICE ................................................................................................... 46
v
TABLE OF AUTHORITIES CASES:
Page(s)
Allen v. State ex rel. Ernest, N Morial New Orleans Exhibition Hall Auth.,
2002-1072(La. 4/9/03), 842 So2d 3732 ………………………………………..………….. 29
Am. Home Assur. Co. v. Chevron, USA, Inc.,
400 F.3d 265 (5th Cir. 2005) ………………………...…………………………………….. 40
Am. Mfrs. Mut. Ins. Co. v. Sullivan,
526 U.S. 40, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999) ……………………………………… 28
Arbaugh v. Y & H Corp.,
126 S.Ct. 1235 (2002) ……………………………………………………..………..………. 2
Austin v. United States,
509 S.Ct. 603 (1993) ………………………………………………….………………….... 41
Beiser v. Weyler,
284 F.3d 665 (5th Cir. 2002)……………………………………………….………… 1, 21, 38
Bell v. Hood,
367 U.S. 678 (1946) ………………………………………………………...………… 19, 21
Bernhard v. Thitnes Nat’l Bank,
523 F.3d 546 (5th Cir. 2008) ………………………...………………………..………….… 10
BP P.L.C. v. Mayor and City Council of Baltimore,
593 U.S. ____, 952 F.3d 452 (2021) …………………………………….……………….… 4
Brumfield v. La State Bd. Of Educ.,
806 F.3d 289 (5th Cir. 2015) ..................................................................................................41
Buck v. Davis,
580 U.S. 100 (2017) ...........................................................................................................3, 24
Burnett v. Grattan,
468 U.S. 42 (1984) .................................................................................................................28
Callon Petroleum Co., v. Frontier Ins., Co.,
351 F.3d 204 (5th Cir. 2003) ……………………………………………………………….. 40
Carter v. Fenner,
136 F.3d 1000 (5th Cir. 1998) ………………………………………………………… 24, 40
vi
Caterpillar Inc. v. Williams,
482 U.S. 386 (1987) ………………………………………………...……………………... 10
Carpenter v. Wichita Falls Ind. School,
44 F.3d 362 (5th Cir. 1995) ……………………..…………………..……………………… 10
Chambers v. Nasco, Inc.,
501 U.S. 32 (1991) …………………………………………..……………………..…… 2, 44
Chapman v. Crane,
123 U.S. 540, 8 S.Ct. 211, 31 L.Ed. 235 (1882) ……………………………..……………. 40
Driscoll v. Stucker,
04-0589 (La. 1/9/05), 893 So.2d 32 ……………………………………...………………... 9
Giaccio v. Pennsylvania,
382 U.S. 399 (1966) ……………………………………………………….………………. 41
Hayes v. University Health Shreveport,
21-1601, 332 So.3d 1163 (La. 1/7/22) ……………………………………….………… 30, 31
Lawlor v. National Screen Service Corp.,
349 U.S. 322, 75 S.Ct. 865, 99 L.Ed. 1122 (1955) ………………………………...……… 40
Lapides v. Board of Regents of the University System of Georgia,
535 U.S. 61, 122 S.Ct. 1640 (2002) ………………………………………………………...17
Legal Services Corporation v. Velazquez,
531 U.S. 533 (2001) …………………………………………..…………….……………... 33
Meyers ex Rel. Benzing v. Texas,
454 F.3d 503 (5th Cir. 2006) ………………………………...……………………………... 17
Nelson v. Ochsner Lafayette General,
332 So.3d 1163 (La. 2022) ……………………………….……………..……………... 30, 31
Preston v. S. Univ. Through Bd. Of Supervisors of S. Univ. Agric & Mech. Coll.,
2020-0035 (La. App. 1 Cir. 7/13/21), 328 So.3d 1194 ……………………………….…… 29
Quackenbush v. Allstate Ins. Co.,
517 U.S. 706, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996) ……………………………………... 1
Quinn v. Guerrero,
863 F.3d 353 (5th Cir. 2017) .................................................................................................. 11
vii
Raby v. Davis,
907 F.3d 880 (5th Cir. 2018) ……………………………………………...………………… 3
Sec. & Exch. Comm’n v. Novinger,
40 F.4th 297 (5th Cir. 2022) .................................................................................................... 40
Sessions v. Dimaya,
138 S.Ct. 1204 (2018) ………………………………………………………..……………. 41
State of Missouri v. Biden,
Case No. 23-30445 (5th Cir. 2023)……………………………....…………….……………32
Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83, 118 S.Ct. 1003 (1998) ………………………………………………... 21, 26, 27
Travelers Indemnity Company v. Sarkisian,
794 F.2d 754 (2nd Cir.) …………………..…………………………………..………………10
Thermtron Prod., Inc. v. Hermansdorfer,
423 U.S. 336 (1976) ……………………………….…………………………………..……..1
Timbs v. Indiana,
139 S.Ct. 682 (2019) …………………………………………….……………………… 2, 41
U.S. v. Corrick,
298 U.S. 435 (2019) …………………………………………...….…………….………… 26
Waleski v. Montogomery, McCracken, Walker & Rhoads, LLP, et al.,
No.: 22-914, 599 U.S. _____ (2023) …………………………………………………...…... 3
Williams v. New Orleans Public Serv., Inc.,
728 F.2d 730 (5th Cir. 1984) ………………………………………………………...……… 24
Williamson v. Tucker,
645 F.2d 404 (5th Cir. 1981) .………………….………………...………………...……… 19
Winters v. Diamond Shamrock Chem. Co.,
149 F.3d 387 (5th Cir. 1998) ………………...……………………………………………... 38
CONSTITUTIONAL PROVISIONS
U.S. Const. art. III, § 2, cl. 2 ……………......……………...………. 1, 4, 10, 12, 20, 25, 27
U.S. Const. amend. XIV ………………………….…….……………...…….……. 9, 10, 25
viii
STATUTES
18 U.S.C. § 1035………………………………………………...…………………………….. 43
28 U.S.C. § 1331………………………………………………………………………………... 9
28 U.S.C. § 1343……………………………………………………………………….……….. 9
28 U.S.C. § 1447…………………………………….……………………...……………...........17
42 U.S.C. § 1983 ………………………………………….…………...…… 1, 10, 12, 18, 19, 27
42 U.S.C. § 1988 ………………………………………………………………... 6, 18, 23, 24, 34
JUDICIAL RULES
Fed. R. App. P. 38 ………………………………..………………………………….. 3, 25, 35, 39
Fed. R. Civ. P. 11 ……………………………….…………………………….…...………...36, 37
Fed. R. Civ. P. 12 ………………………………….………………………..……… 10, 12, 19, 27
Fed. R. Civ. P. 26 ……….………………………………….………………………….. 12, 15, 20
Fed. R. Civ. P. 37 …………………………………….……………………………………….... 15
Fed. R. Civ. P. 54 …………………………………………….……………………….. 17, 21, 22
Fed. R. Civ. P. 56 ……………………………………….………………..……………… 6, 12, 13
Fed. R. Civ. P. 60(b) ……………….……………….……..….. 2, 3, 23, 25, 34, 37, 38, 39, 40, 43
Fed. R. Civ. P. 72(b) ……………………….……………………………………………………20
W. D. La., L.R. 74.1(B) ……………………………………………………………………..... 20
LOUISIANA STATUTES
LA R.S. 9:3921 ……………………………………………………………..…………………. 29
LA R.S. 13:4231…………………………………………………………………...…………... 40
LA R.S. 17:1519.1……………………………………………………………...………... 8, 11, 12
LA R.S. 17:3390 ………………………………………………………………...………. 8, 11, 12
LA R.S. 23:291 …………………………………………………………………...……….. 23, 29
x
LA R.S. 23:1031…………………………………………………………………...…………... 28
LA R.S. 23:1061 ………………………………………………………….…...…………... 28, 29
LA Civ. C. art. 2320 ………………………….…………………………………….………….. 29
OTHER AUTHORITIES:
18A Charles Alan Wright et al.,
FEDERAL PRACTICE AND PROCEDURE § 4433
(3d ed. 2021) …………………………………………………..………………………... 38
46 Am. Jur. 2d Judgments § 532 …………………...……..……...…………………...………. 40
Zachary D. Clopton & Alexandra D. Lahav.,
Fraudulent Removal,
135 Harv. L. Rev. F. 87 (2021)……………..………………………………………….….21
xi
TO THE HONORABLE SAMUEL A. ALITO, JR.,
ASSOCIATE JUSTICE OF THE SUPREME COURT AND
CIRCUIT JUSTICE FOR THE FIFTH CIRCUIT:
INTRODUCTION
Absent the exceedingly rare intervention of this Court, a jurisdictional ruling granting
remand based on lack of subject matter jurisdiction, which conflated the merits to dismiss
Applicant’s state law claims, will be given the effect of a final, irrevocable judgment
unreviewable by any other court.1 Respondents have hedged their bets on the unlikely odds of
this Court granting Applicant’s writ exemplified by their immediate waivers.2 Respondents’
disinterest before this Court does not extend to pendent litigation and the aggressive enforcement
of a void judgment rendered by the district court without jurisdiction.3 Respondents, all private
actors, allege they obtained a judgment precluding all of Applicant’s state law claims in an order
granting remand that summarily dismissed purported federal claims brought pursuant to 42
U.S.C. § 1983—a claim Applicant never pled, Respondents lacked Article III standing to
remove, and the federal courts lacked jurisdiction to dismiss on the merits.4
This case exemplifies the problems with conflating jurisdiction and the merits into a single
step that go beyond procedural infelicity: conflating jurisdiction with the merits has irrational
consequences inconsistent with this Court’s precedents.5 The district court dismissed Applicant’s
purported federal claims and the state law claims actually pled against Respondents by granting
See Case No.: 23-55 seeking review from the Fifth Circuit’s April 17, 2023 decision found at Appendix, pp. 6-12.
The Fifth Circuit denied Applicant’s Motion to Stay the Mandate on May 4, 2023. The denial of the stay is attached
as Appendix, p. 4.
2
See the Petition for Writ Application filed in Case No.: 23-55.
3
This case provides an appropriate vehicle and is a cautionary tale created by the obscurity of this Court’s precedent
in Thermtron Prod., Inc. v. Hermansdorfer, 423 U.S. 336, 361, (1976), abrogated by Quackenbush v. Allstate Ins.
Co., 517 U.S. 706, 116 S. Ct. 1712, 135 L. Ed. 2d 1 (1996).
4
See Appendix, p. 54, the district court’s March 24, 2021, Judgment granting remand of only the legal malpractice
claims made in Applicant’s state court petition filed in the 15th Judicial District Court in Lafayette, Louisiana,
Division D.
5
Beiser v. Weyler, 284 F.3d 665, 672 (5th Cir. 2002).
1
1
partial summary judgments before the court firmly established its jurisdictional footing. The
district court unequivocally assumed “hypothetical jurisdiction” over Applicant’s state law
claims and issued an unrefined disposition in an order of remand resulting in a “drive-by
jurisdictional ruling” that should not be accorded precedential effect. 6 When Applicant requested
relief from the district court’s judgment, or alternatively, that the court clarify the dismissed state
law claims in order to defeat Respondents’ plea of federal res judicata in state court, Applicant
was excessively sanctioned by the federal and state courts. 7 When Applicant appealed the denial
of relief from the district court’s judgment based on lack of subject matter jurisdiction, he was
sanctioned by the United States Fifth Circuit for refusing “to heed the district court’s warnings
about ‘unreasonable attempts at continuing this litigation.’” 8
Applicant’s complete denial of relief has been insufficient for Respondents who have
continued to engage in harassing litigation through the application of enormous financial and
political pressure designed to reduce Applicant “to a condition of exhausted compliance.” 9
Respondents have used excessive punitive sanctions in the amount of $237,724.81 to chill
Applicant’s speech and deter his access to the court system. 10 This Court held that “the
protection against excessive fines has been a constant shield throughout Anglo-American
history: Exorbitant tolls undermine other constitutional liberties. Excessive fines can be used, for
example, to retaliate against or chill the speech of political enemies.” 11 Thus, without a stay from
this Court by September 5, 2023, Applicant will be held in contempt by the state court and very
6
Arbaugh v. Y & H Corp. 546 U.S. 500. See also Steel Co. v, Citizens for Better Environment, 523 U.S. 83 (1998).
See Appendix, pp. 36-53, the August 23, 2022 Memorandum Ruling denying the Motion to Vacate pursuant to
Rule 60(b) and awarding sanctions to the LSU Defendants issued by the federal district court.
8
See Appendix, p. 11.
9
Chambers v. Nasco, Inc., 501 U.S. 32 (1991).
10
See Appendix, p. 76, one day after Applicant filed a petition for review of the decisions by this Court,
Respondents warned: “Rest assured that my clients will seek all legal avenues to atone for the ongoing wrongs.”
11
Timbs v. Indiana, 139 S.Ct. 682 (2019).
7
2
likely imprisoned for objecting to payment of punitive sanctions in the amount of $98,390.17
based on federal res judicata.12 In federal district court, Applicant also faces a finding of
contempt if he fails to pay Respondents’ punitive sanctions before September 13, 2023, that were
assessed by the district court in the amount of $50,664.74.13 The sanctions were imposed in the
Fifth Circuit’s per curiam unpublished opinion that remanded to the district court to assess the
appropriate Fed. R. App. P. Rule 38 sanctions for Applicant’s “untimely and also meritless Rule
60(b) motion” based on lack of subject matter jurisdiction, intervening developments of facts,
and a controlling change in case law that is pending review by this Court.14
Thus, a stay of these proceedings pending the disposition of Applicant’s petition is
respectfully requested to prohibit additional abusive litigation tactics and aggressive enforcement
of a void judgment that will cause Applicant irreparable harm. Applicant’s petition requests this
Court to review a remand order, which contains a dismissal of all of Applicant’s claims against
Respondents, utilizing the doctrine of hypothetical jurisdiction. “Much more than legal niceties
are at stake here. For a court to pronounce upon the meaning or the constitutionality of a state or
federal law when it has no jurisdiction to do so is, by very definition, for a court to act ultra
vires.”15 Applicant’s petition presents an issue that is res nova and the doctrine of hypothetical
See Appendix, p. 62, the state trial court’s Rule to Show Cause ordering the undersigned and Applicant to appear.
Appendix, pp. 73-75, the state court judgment awarding sanctions and the state court’s written reasons for ruling on
sanctions for filing a claim precluded by federal res judicata. Also note that this award is currently pending appeal
before the Louisiana Third Circuit Court of Appeals; however, Respondents dispute whether they may execute the
judgment while a suspensive appeal is pending.
13
See Appendix, p. 13, the district court’s August 14, 2023, Judgment of sanctions. Appendix, pp. 14-16, the district
court’s June 29, 2023 Memorandum Ruling calculating an award of Fed. R. App. P. Rule 38 sanctions pursuant to
the Fifth Circuit’s mandate issued on May 12, 2023.
14
See Appendix, pp. 5-15, the April 17, 2023 decision of the Fifth Circuit Court of Appeal. See also Appendix, p.
45, Footnote 2, the district court’s denial of the Rule 60(b) Motion and the court’s refusal to apply this Court’s
existing precedent in Buck v. Davis, 580 U.S. 100, 126 (2017) finding that the Fifth Circuit holds that a change in
case law is not sufficient to warrant relief under Rule 60(b)(6). Raby v. Davis, 907 F.3d 880, 884 (5th Cir. 2018).
15
Waleski v. Montogomery, McCracken, Walker & Rhoads, LLP, et al., No.: 22-914, 599 U.S. (2023) (Thomas, J.,
dissenting).
12
3
jurisdiction is the subject of an entrenched Circuit split raising questions of constitutional law, a
stay of these proceedings and review of Applicant’s petition is respectfully requested.16
STATEMENT
A. Factual Background
This case concerns a judgment that is void for lack of subject matter jurisdiction obtained
under deceptive pretenses by purportedly state actors. On July 8, 2022, Dr. Cordova sought relief
from the federal court and produced voluminous evidence establishing that Respondents used the
complexity of their contractual relationship to manufacture Article III standing, obscure Dr.
Cordova’s employment status, and obtain the improper dismissal of a state law action in federal
court.
Applicant, J. Cory Cordova, M.D. (“Dr. Cordova”), was wrongfully dismissed, without
cause, from the Internal Medicine Residency Program located at University Hospital and Clinics,
Inc. (“UHC”), in Lafayette, Louisiana.17 However, UHC—a private hospital and Dr. Cordova’s
true employer—utilized the complexity of the public private partnership between UHC and
Louisiana State University School of Medicine to gain the benefits of qualified immunity in
federal court and avoid liability for Dr. Cordova’s state law claims. Beginning in 1997,
Louisiana Revised Statute 17:1519.1 provided for the operation of Louisiana’s ten (10) public
hospitals by the LSU Health Sciences Center-Health Care Services Division, under the overall
management of the Defendant, the LSU Board of Supervisors. These hospitals served as the
16
Applicant’s petition also seeks resolution of the issue that this Court left unresolved in BP P.L.C. v. Mayor and
City Council of Baltimore, 952 F.3d 452 (2021)—the determination of whether other appealable issues contained in
an Order of Remand may be reviewed by the appellate courts.
17
Respondents are the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College,
Dr. Karen Curry (the program director at UHC), Dr. Nicholas Sells (the head of UHC’s internal medicine
department), and Kristi Anderson (UHC’s director of graduate medical education) (collectively referred to “LSU
Defendants” herein). Dr. Cordova also sued University Hospitals and Clinics, Inc., Lafayette General Medical
Center, Inc., and Lafayette General Health System, Inc. (collectively referred hereinafter as “the Lafayette General
Defendants”).
4
primary source of health care services for the indigent population of the state. In addition, these
hospitals are utilized by the LSU Health Sciences Centers, a private entity, as teaching hospitals
wherein the medical and dental faculty and medical education students provide the medical care
to patients. In 2013, the LSU Board of Supervisors transitioned management and operations of
these former charity hospitals to private hospital partnerships.
In the Spring of 2013, following a directive from the State, the LSU System began to
transition the management and operations of all but one of its hospitals to private entities,
entering into public private hospital partnerships. This major transformation of public healthcare
in Louisiana occurred in a span of months, beginning in July 2012, when Congress reduced the
state’s disaster-recovery Federal Medical Assistance Percentage (FMAP) rate from 71.92 percent
to a projected 65.51 percent, the lowest reimbursement rate Louisiana has had in more than 25
years. Realizing that the cut to FMAP could be problematic, the public private hospital
partnerships were formed as a way to increase support for healthcare services. The transition of
the management and operations of the hospitals to private partners were negotiated and
formalized through cooperative endeavor agreements (CEA). These CEA’s were executed by the
State, the LSU System, and the Private Partner selected for each former public hospital.18
Under cooperative endeavor agreements, the former University Medical Center in Lafayette,
Louisiana is managed by the Defendant, Lafayette General Medical Center.19 The former
University Medical Center now operates as University Hospital and Clinics, Inc. (“UHC”)—a
wholly owned subsidiary of Lafayette General Medical Center and Lafayette General Health
18
This information was obtained from a recent Louisiana Legislative Audit of the LSU System that details the
nature of the relationship and the appropriate classification of the discreetly presented and component units of the
system. The audits are furnished to the Louisiana Attorney General and are available as public records at
www.lla.state.la.us.
19
The Cooperative Endeavor Agreements between the parties and other public records regarding the public private
partnerships are contained in the record of these proceedings. ROA.22-30732.1579-1838. ROA.22-30732.44404671.
5
Systems, additional named Defendants in this case—is the site at which Dr. Cordova completed
his first year of internal medicine residency training from July 1, 2017-June 30, 2018.20
Dr. Cordova has consistently maintained that the declarations and Affidavits furnished by the
LSU and Lafayette General Defendants to obtain their victory in this purported civil rights action
violated Fed. R. Civ. P. Rule 56(h).21 The LSU Defendants misrepresented the nature of their
relationship when they maintained that Dr. Cordova, Dr. Karen Curry, Dr. Nicholas Sells, Kristi
Anderson, and Dr. James Falterman were all employed by the Board of Supervisors for LSU, a
state actor, in order to obtain the following advantages in this case: 1.) removal to federal court;22
2.) a qualified immunity defense for Dr. Curry to overcome her false statements regarding Dr.
Cordova’s residency performance;23 3.) free legal representation from the Attorney General of
Louisiana;24 and 4.) attorneys’ fees and costs as a state actor pursuant to 42 U.S.C. § 1988.25
1. An Undisclosed Concurrent Conflict of Interest and Improper Removal.
To compound the complexity of this fact intensive case, Dr. Cordova was neither made
aware of nor did he waive a conflict of interest that existed with his previous lawyer from the
start of this litigation. This undisclosed concurrent conflict of interest between the lead attorney
for the Respondents, James Gibson, and Dr. Cordova’s own lead counsel was instrumental in
facilitating the improper removal and the summary dismissal of all of his state law claims
without federal subject matter jurisdiction or a full and fair opportunity to be heard. On February
18, 2019, Dr. Cordova hired the Bezou Law Firm. On March 15, 2019, Jacques Bezou, Jr., of the
20
ROA.23-30335.403.
ROA.22-30732.1552. ROA.22-30732.1784.
22
ROA23-30335.40-47.
23
ROA.22-30732.1169.
24
ROA.23-30335.213-214.
25
ROA.22-30732.4938.
21
6
Bezou Law Firm, was sued for malpractice in Dupre v. CNA, et al, and was represented by
James Gibson, the attorney for the Lafayette General Defendants in this case.26
On March 29, 2019, Dr. Cordova brought suit in the 15th Judicial District Court against
Louisiana State University Health Science Center (“LSUHSC”), University Hospital and Clinics
(“UHC”), Lafayette General Hospital, Dr. Karen Curry, Dr. Nicholas Sells, Kristi Anderson,
Christopher Johnson, and the Gachassin Law Firm.27 The initial Petition for Damages was signed
by Jacques Bezou, Sr., and was verified by Dr. Cordova.28 On April 5, 2019, while still
representing the Bezou Law Firm, James Gibson requested an extension on behalf of the
Lafayette General Defendants from the Bezous to file responsive pleadings in this case. Despite
the concurrent representation, the Bezous did not advise Dr. Cordova of the conflict. Rather, Mr.
Bezou, Jr., sent Dr. Cordova a correspondence advising that “Jim Gibson is an old friend and
frequent opponent. Glad to see he is defending one of the parties here.”29
On April 23, 2019, the attorneys for Lafayette General Defendants enrolled in the state court
proceeding and filed a Dilatory Exception of Vagueness and Nonconformity of Dr. Cordova’s
Petition. Mr. Gibson requested that his client, Mr. Bezou, cure the filed Exception by amending
Dr. Cordova’s petition.30 The Exception alleged that Dr. Cordova’s original petition was vague
because the allegations against the Lafayette General entities were “sparse” and did not provide
the Lafayette General Defendants with the information necessary to properly prepare its
26
ROA.23-30335.3542-3545.
ROA.22-30548.45.
28
ROA.22-30548.178-180. Christopher Johnston and the Gachassin Law firm were remanded to state court as a
result of the district court’s remand order issued on March 24, 2021 and this legal malpractice action and the legal
malpractice action of the Bezous are pending in the 15 th Judicial District Court, Lafayette Parish Louisiana, Division
D, Docket No.: 2019-2019.
29
ROA.22-30548.3631.
30
ROA.23-30335.186-191.
27
7
defense.31 The Lafayette General Defendants further asserted: “Plaintiff does not identify the
employers of the other individual defendants, although Drs. Curry and Sells are faculty and Ms.
Anderson is Director of Graduate Medical Education of LSU School of Medicine.”32 Finally, the
Lafayette General Defendants allege: “Plaintiff never alleges an employment or contractual
relationship with UHC or LGMC.”33
On May 1, 2019, while still represented by Mr. Gibson, Mr. Bezou, Sr., advised Dr. Cordova
that Mr. Bezou, Jr., would be handling the hearing on the Exception of Vagueness to be heard in
state court stating that Mr. Bezou, Jr., was “very close” with Mr. Gibson “as am I.”34 The Bezous
again did not disclose that Mr. Gibson was concurrently representing the firm in a malpractice
action at this time or any other time during this litigation. Prior to filing the Amended Petition,
Mr. Bezou sent an unsigned petition to the attorneys for the Defendants to determine if the
Amended Petition cured the exceptions filed by his then attorney, Mr. Gibson.35 Thereafter, on
July 22, 2019, Jacques Bezou, Sr., filed a First Amended Petition for Damages that was not
verified by Dr. Cordova.36 Although neither requested by the Lafayette General Defendants nor
31
ROA.23-30335.191.
The Louisiana Legislative audit is filed in the federal record and provides that Louisiana State University School
of Medicine in New Orleans Faculty Group Practice, a Louisiana non-profit corporation, d/b/a LSU Healthcare
Network (LSUHN), supports the LSU Health Sciences Center (LSUHSC) in carrying out its medical, educational,
and research functions. In FY2022, total operating expenses were $149.7 million of which the largest component
was the net revenue returned to LSU Health Sciences Center (LSUHSC) of $104.6 million. LSUHN remains a
private entity under Louisiana Revised Statute (R.S.) 17:3390 but is combined with the Louisiana State University
System for financial reporting purposes and is included in the basic financial statements of the Louisiana State
University System together with its blended component units. LSUHN’s activities include billing for services
provided at UHC in Lafayette and the public clinics serviced by LSUHSC. LSUHN’s physicians provide services in
hospital-based clinics at UHC in Lafayette. See Fifth Circuit Case: 22-30548, Document 98, Dr. Cordova’s
Response to Sanctions.
33
ROA.23-30335.190.
34
ROA.22-30548.3633.
35
ROA.22-30548.335.
36
ROA.22-30548.240.
32
8
verified by Dr. Cordova, Mr. Bezou unilaterally named a new defendant: “The Board of
Supervisors of Louisiana State Agricultural and Mechanical College, a state agency.”37
Although not relevant to cure the Exceptions filed by the Lafayette General Defendants, the
amended petition also removed a Defendant named and served in the original petition, Louisiana
State University Health Science Center (“LSUHSC”), and added the Board of LSU, “a state
agency.” However, the Amended Petition did not formally dismiss or substitute the original
defendant, LSUHSC, thereby leaving LSUHSC a named and served party in the state
proceedings. To date, LSUHSC remains a named Defendant listed on the state court caption and
also remains listed on the district court’s official case caption in this matter.38
1. The Improper Removal
On August 7, 2019, the LSU Board of Supervisors filed a Notice of Removal and alleged that
“plaintiff specifically alleges that the LSU Defendants’ actions violated his ‘due process rights
established in the federal and state constitutions’ citing the case of Driscoll v. Stucker, 04-0589
(La. 1/19/05), 893 So.2d 32, in support of the assertion.”39 The Notice also alleged that “Dr.
Karen Curry, Dr. Nicholas Sells, and Kristi Anderson are made defendants in their individual
capacities.”40 The Notice alleged removal was timely to the Western District of Louisiana which
“unquestionably has jurisdiction by reason of 28 U.S.C. §§ 1331 and 1343 and because claims
asserted by the plaintiff allegedly arise under the Fourteenth Amendment to U.S. Constitution.”41
37
ROA.22-30548.226.
ROA.22-30548.226.
39
ROA.23-30335.41. The Driscoll case also proves the intentional misrepresentations made by the LSU Defendants
contained in the Notice of Removal which asserts that LSUHSC was not a proper entity/party and was erroneously
named. ROA.22-30548.35. Moreover, the LSU Defendants were fully aware that LSUHSC was a proper entity/party
as their attorney billing records indicate that prior to removing the case from state court, counsel for the LSU
Defendants reviewed Dr. Cordova’s “payroll/wage records from his residency at UHC/LSUHSC.” ROA.2230548.2092-2093 ROA.22-30548.2096.
40
ROA.23-30335.42.
41
ROA.23-30335.43-44.
38
9
Finally, the Notice of Removal alleged: “A constitutional tort claim under 42 U.S.C. § 1983 is
facially removable because it is a civil action founded on claims under the Constitution and/or
laws of the United States.”42
However, neither the original nor the amended petition mentions 42 U.S.C. § 1983 and never
alleges that any of the Defendants are state actors or acting under the color of state law. With all
Defendants domiciled in Louisiana, neither subject matter jurisdiction nor Article III standing
was sufficient to wrestle this case from state court. Yet, in support of removal, the LSU
Defendants cited Quinn v. Guerrero, 863 F.3d 353 (5th Cir. 2017), the antithesis of supporting
removal in this case.43 In Quinn, the Fifth Circuit held that the plaintiff’s federal question must
appear on the face of his well-pleaded complaint and that vague references to the United States
Constitution are not enough.44 Moreover, it is well established that jurisdiction cannot be
established on a theory that a state court plaintiff has not advanced, lest the serious anomalies
and unfairness present in this case will occur in other cases without recourse. 45
A. Procedural History
1. The Attempted Dismissal of an Indispensable Party.
On August 16, 2019, nine (9) days after removal, the LSU Defendants filed a Rule 12(b)(6)
and asserted that LSUHSC was not a proper party citing nonbinding case law that misstates
current Louisiana state law.46 These material misrepresentations are inconsistent with the
42
ROA.23-30335.44.
ROA.23-30335.33. ROA.22-30548.387.
44
Id. citing Bernhard v. Whitney Nat’l Bank, 523 F.3d 546, 551 (5th Cir. 2008); Caterpillar Inc. v. Williams, 482,
U.S. 386, 391-92 (1987). However, the Fifth Circuit took the opposite position in this case holding that quoting the
Fourteenth Amendment “made the case plainly removable and gave the district court jurisdiction.”
45
Carpenter v. Wichita Falls Independent School, 44 F.3d 362, 365 (5th Cir. 1995) citing Travelers Indemnity
Company v. Sarkisian, 794 F.2d 754, 758 (2nd Cir.), cert. denied, 479 U.S. 885, 107 S.Ct. 277, 93 L.Ed. 253 (1986).
46
The LSU Defendants used LA R.S. 17:1519.1 et. seq., the statutes that applied prior to the 2013 privatization of
the public hospitals in Louisiana.
43
10
Louisiana Legislative audits, which are contained in the Fifth Circuit’s record and are furnished
to the Louisiana Attorney General, identifying this entity and its organizational component units
as private entities under LA R.S. 17:3390.47 In filing the Motion to Dismiss the proper entity, the
LSU Defendants attempted to retroactively cure the failure to obtain the unanimous written
consent of all of the defendants required to remove the matter from state court by falsely alleging
to the district court that Dr. Cordova had no viable claim against LSUHSC.48 The LSU
Defendants point out to the district court that: “LSUHSC has not been dismissed as a party. Out
of an abundance of caution a dismissal of LSUHSC from this litigation is requested.”49
Relying on the LSU Defendants’ misrepresentations that LSUHSC was not the proper party
and/or lacked the capacity to be sued, the district court found no basis for dismissing LSUHSC
from the federal suit.50 Thus, LSUHSC, a private non-profit entity, which is a component unit of
the entity that employs Dr. Curry, Dr. Sells, and Kristi Anderson, was never properly before the
federal district court. The removal procedure in this matter was deceptive and defective from its
inception since not all of the defendants named and served in the state court proceedings
provided consent to the removal.51 More importantly, Dr. Cordova’s claims contained in his
original state court petition against the proper entity, LSUHSC, currently remain pending in the
remanded state court action.52 Thus, the district court’s jurisdiction was never properly
established since the Bezous did not seek remand, the LSU Defendants did not file a corporate
47
ROA.22-30548.386-387. ROA.22-30548.492-493. See also Fifth Circuit Case No.: 23-30548, Document 98-3.
ROA.22-30548.483.
49
ROA.22-30548.518.
50
ROA.22-30548.525.
51
28 U.S.C. § 1446(b)(2)(a).
52
Importantly, the Notice of Removal filed by the LSU Defendants correctly allege that service was made on
LSUHSC through its registered agent so this entity was properly joined prior to removal but did not consent to the
removal as the law requires. ROA.22-30548.38. ROA.22-30548.191.204.
48
11
disclosure statement, no party completed initial disclosures, and Rule 26(f) reports were never
completed.53
On March 16, 2020, the governor of Louisiana declared a state of emergency and issued stay
at home orders as a result of the COVID-19 pandemic. On April 28, 2020, the district court
signed an Order granting the Joint Motion to Continue the trial and all deadlines filed by all
parties based on Dr. Cordova’s unavailability and inability to meet with his lawyers due to the
COVID-19 pandemic.54 Despite the foregoing, on October 21, 2020, the LSU Defendants filed a
Rule 12(b)(6) or alternatively a Rule 56 Motion for Summary Judgment seeking dismissal with
prejudice of the due process claims and Dr. Cordova’s state law breach of contract claims.55 The
LSU Defendants—the party who invoked the jurisdiction of the federal court—denied federal
jurisdiction and attempted to shift the burden of proving Article III standing to Dr. Cordova who
neither alleged the Defendants were state actors nor alleged the Defendants acted under the color
of state law to deprive him of a right secured by the constitution.56 More importantly, the LSU
Defendants, the party bearing the burden of establishing qualified immunity, failed to establish
the named Defendants were state actors or a “person” acting under the color of state law as
defined by Section 1983.57 To the contrary, the Affidavits filed in support of Motion for
Summary Judgment, attorney billing entries, and all of the evidence contained in the voluminous
record prove that Dr. Curry, Dr. Sells, and Kristi Anderson are employed by a private actor.58
53
On August 8, 2019, the LSU Defendants, the removing party, received a Notice of Corporate Disclosure
Statement Requirement with an electronic filing deadline of 8/22/19. ROA.22-30335.370. This disclosure was never
filed.
54
ROA.23-30335.652.
55
ROA.23-30335.679.
56
ROA.23-30335.679.
57
The district court dismissed the LSU Board of Supervisors with prejudice because Section 1983 does not allow
vicarious liability. This dismissal was jurisdictional and should have been without prejudice.
58
Fifth Circuit, Case No.: 22-30548, Document 98 contains public records from the Louisiana Legislature indicating
that the named defendants are employed by a private entity pursuant to LA R.S. 17:3390. See Document 98-3, p. 21.
12
On November 4, 2020, undersigned counsel enrolled in the federal district court case to assist
lead counsel, Jacques Bezou, Sr., in defending against the LSU Defendants’ Motion for
Summary Judgment.59 Upon review of the evidence placed in the record by the LSU Defendants,
undersigned counsel noted that the evidence did not support any of the allegations made by the
LSU Defendants to obtain summary judgment; rather, all of the evidence in the record fully
supported that Dr. Cordova was wrongfully discharged.60 Therefore, Dr. Cordova sought Rule
56(h) sanctions due to the LSU Defendants’ misrepresentations and false allegations contained in
Dr. Curry’s Affidavit regarding Dr. Cordova’s performance while he was a resident at UHC.61
Thereafter, on November 12, 2020, the Lafayette General Defendants, also a private actor, filed a
motion for summary judgment seeking dismissal of Dr. Cordova’s purported federal claims and
his state law breach of contract claims. Dr. Cordova also sought Rule 56(h) sanctions against the
Lafayette General Defendants based on the false allegations contained in the Affidavits to obtain
summary judgment.62
On November 13, 2020, without the undersigned counsel’s knowledge, a telephone
conference with the district court was held regarding the “protocol for the upcoming hearing on
LSU Defendant’s motion for summary judgment.”63 Despite the lack of discovery and lack of
pretrial disclosures, that same day, an electronic order was issued and the district court sua
59
ROA.23-30335.1508.
Dr. Cordova’s cumulative evaluations are contained in the record and are inconsistent with Dr. Curry’s Affidavit.
Dr. Cordova’s actual evaluations prove that he was at a level consistent with a second year resident.
61
ROA.23-30335.1551-1537 contains Dr. Cordova’s Contested Facts with 50 separate paragraphs with record cites
pointing the district court to the record evidence that supported Dr. Cordova exceeded the expectations of a secondyear resident despite being discharged after his first year.
62
ROA.22-30548.1554. Dr. Cordova also contested the Lafayette General Defendants’ Contested Facts and filed 31
separate paragraphs with record cites pointing the district court to the record evidence that supported Dr. Cordova’s
assertions that the Lafayette General Defendants were involved in the non-renewal process that led to Dr. Cordova’s
wrongful dismissal from UHC. ROA.23-30335.1805-1810.
63
ROA.22-30548.2132.
60
13
sponte set both summary judgments for oral argument at the height of the COVID-19
pandemic.64 In response, the undersigned sent an email to the Bezous that stated in pertinent part:
We need to propound some discovery…Also why don’t we notice Curry’s
deposition? Our discovery deadline has got to be coming up soon with an April trial
date. I am so confused as to why the defendants would file MSJ when they have done
zero discovery. I have never seen that before in my life. Any thoughts on that?65
In response Mr. Bezou stated, “I can’t explain they’re [sic] lack of discovery…Before we do
anything I want these MSJ’s behind me.”66
2. Shifting Burdens of Proof and Assumption of Jurisdiction.
Despite repeated requests and his trial attorney designation, Mr. Bezou refused to appear at
oral argument.67 On December 15, 2020, the day oral argument was held, undersigned counsel
was denied entry into the federal courthouse to attend the hearing after answering yes to the
following question: “Have you been around anyone required to self-quarantine?” This question
was not included as a visitor restriction on the Western District of Louisiana’s Order establishing
the courthouse’s COVID-19 “protocols” issued on March 13, 2020.68 The undersigned counsel
requested that the court security officers contact the district court to explain the situation and to
request participation in the oral argument hearing in person or via Zoom. The district court
denied the undersigned’s requests but allowed undersigned twenty minutes to return to her office
to participate via telephone.69 During the hearing, it was clear that the district court was
displeased that Dr. Cordova failed to conduct discovery. The district court repeatedly questioned
64
ROA.22-30548.17.
ROA.22-30548.3653-3654.
66
ROA.22-30548.3653
67
ROA.22-30548.3648.
68
ROA.22-30548.3667-3668. The court security officers were ordered to deny entry to anyone attempting to enter
the courthouse in violation of the courthouse COVID-19 “protocols.” ROA.23-30335.3668.
69
ROA.22-30548.6243-6245.
65
14
the undersigned—but not the other attorneys requesting relief—regarding her lack of discovery.
When Dr. Cordova requested additional time to conduct discovery because he was unaware of
the Defendants’ documents until placed into the federal record on summary judgment, the
request was denied.
Federal Rule of Civil Procedure Rules 26 and 37(c)(1) provide a self-exacting sanction
prohibiting a party who fails to provide information from using that information at any hearing to
avoid unfair surprise. Nevertheless, the district court also denied Dr. Cordova’s request to amend
his pleadings. Irrespective of the anomalies in the prehearing procedures, Dr. Cordova was able
to establish (through objective evidence placed in the record by the Defendants) serious
inconsistencies in his actual evaluations and the Affidavits provided by the LSU Defendants to
support summary judgment. The evidence proved Dr. Cordova’s dismissal from UHC was
patently unfair and based on false allegations. However, the district court informed undersigned
that the burden had shifted on summary judgment and Dr. Cordova’s burden was heightened to
now prove that Dr. Curry’s actions “shocked the conscience.”
Counsel for the Lafayette General Defendants argued lack of evidence and was dismissive of
the undersigned’s failure to conduct discovery due to COVID-19 and further misrepresented that
Dr. Cordova wrongfully refused depositions due to the pandemic.70 However, during oral
argument, the undersigned specifically advised the district court that the residents were paid by
UHC. The record of the proceedings reflect that the following arguments were made:
70
On April 6, 2020, while the LSU Defendants’ Rule 12(b)(6) motion was under advisement, counsel for Lafayette
General, James Gibson, sent an email to all attorneys which stated:
I talked to Jacques this morning. He brought up that his client, an ER doctor cannot be deposed now or
likely for the foreseeable future. Moreover, unlike others on this email, Jacques and I are in the target age
for catching the virus (he more than me, based on age). We discussed filing a joint motion to continue the
trial date/all deadlines, with a request for a conference call if that is necessary. We can add emergency to
that motion if necessary and point out all issues to the Court. ROA.23-30335.3059.
15
The Court: I mean there’s nothing—y’all don’t compensate the residents? Y’all
don’t pay them? They’re not part of your employee staff? They’re just in your
facility?
Mr. Gibson: It’s not our facility. It’s the state’s facility.
The Court: Well, the state’s facility.
Mr. Gibson: We’re managing it. And look, if—
The Court: A different state agency totally, right? The hospital’s part of the—
Mr. Gibson: We’re not the state—in fact, her earlier comment on that case, we’re not
a state actor. They didn’t allege we’re a state actor.71
***
Ms. Mire: I think I can help the Court with respect to that. What does it have do is
the fact that UHC signed a collaborative effort [sic] agreement with LSU and they
paid for all–they subsidized all of LSU’s employees. They’re actually compensated—
The Court: But at the end of the day what does that have to do with your client being
not renewed for his residency program? So what that the hospital is in agreement with
LSU for the facilities and the use of residents. I guess they don’t have anything to
with whether or not he got dismissed, do they? Did the hospital have anything to with
–
Mr. Gibson: No, Your Honor.
The Court: --him being dismissed and not renewed?
Ms. Mire: Yes, they do.
The Court: I’m going to be honest with you. I’m going to shut this argument down
because you’re just barking up the wrong tree on this one. You know, I’m going to
tell you right now I’m going to grant the hospital’s motion. I’m going to lay out the
reasons on it, but I’m not buying what you’re selling on this one so I don’t want to
waste any more everybody’s time on that. I’ve read the briefs. I’ve read the record.
I’ve heard counsel and I let you be heard on this extensively. But I’m telling you, I’m
not there.
Ms. Mire: I don’t feel that I’ve been heard, Your Honor.
The Court: Well, you know what, if you don’t feel like you’ve been heard, I’ll tell
you what you can do. You go to the U.S. Fifth Circuit and you take it up with them,
and they are at the next level; and then you can go to the U.S. Supreme Court. And
I’ll do exactly what the United States Fifth Circuit tells me to do. If they tell me I’m
wrong. I’m wrong. And I’ll do what they tell me. They’re at a higher pay grade than
me, not much but they’re there.72
On December 17, 2020, the district court issued a memorandum ruling and found that Dr.
Cordova “has failed to meet his burden on the qualified immunity defense or establishing a
constitutional violation and the substantive due process claim against Curry must be
71
72
ROA.23-30335.6524, ll. 23-25; ROA.22-30335.6525, ll. 1-10.
ROA.23-30335.6527-6529.
16
dismissed.”73 The district court further found no basis for holding the Lafayette General
defendants liable under the breach of contract claim raised. The district court, sua sponte, set a
deadline to submit briefs regarding certification under the Federal Rule of Civil Procedure 54(b)
for December 28, 2020.74 Prior to the district court’s certification, Dr. Cordova noted
Respondents’ dubious strategy of invoking and denying jurisdiction in the same case and
objected to the court’s lack of subject matter jurisdiction to enter a final judgment.75
On December 23, 2020, the Bezous filed a Motion to Remand only the remaining legal
malpractice claims based on lack of subject matter jurisdiction pursuant to 28 U.S.C. § 1447(c).76
On December 28, 2020, Dr. Cordova opposed certification under Federal Rule of Civil
Procedure 54(b) and objected to the federal district court’s jurisdiction. Specifically, Dr. Cordova
alleged that the district court improperly shifted the burden of establishing subject matter
jurisdiction to Dr. Cordova and should have remanded the matter when the LSU Defendants
argued that the petition failed to allege a federal constitutional violation.77 Finally, Dr. Cordova
asserted: “Permitting the LSU Defendants to follow its litigation interest by both invoking and
denying federal jurisdiction in the same case generates seriously unfair results and
inappropriately exhausts judicial resources. See Meyers ex Rel. Benzing v. Texas, 454 F.3d 503
(5th Cir. 2006).”78
Rather than acknowledge that the district court lacked jurisdiction, the LSU and Lafayette
General Defendants repeatedly and unwarrantedly attacked undersigned counsel characterizing
the objection of subject matter jurisdiction as an attack on the court, “sly,” “exceptionally ill73
ROA.22-30548.1865.
ROA.22-30548.1865.
75
ROA.22-30548.2214.
76
ROA.22-30335.1936-1938.
77
ROA. 23-30335.1951 citing Lapides v. Board of Regents of the University System of Georgia, 535 U.S. 61, 122
S.Ct. 1640, 1646 (2002).
78
ROA.23-30335.1951.
74
17
timed,” “grossly delinquent,” “improper,” “disingenuous” and “should not seriously be
entertained.”79 After raising the issue for the first time on December 28, 2020, Mr. Bezou, Dr.
Cordova’s designated trial attorney who refused to appear to prevent summary judgment, sent a
racially insensitive email targeting undersigned counsel and an overtly threatening email
containing an exploding car.80
5. Gamesmanship v. Candor
On December 31, 2020, the LSU Defendants prematurely sought attorney’s fees pursuant to
42 U.S.C. § 1988 as the prevailing party in a § 1983 action.81 The LSU Defendants—the party
who removed this action from state court—declared themselves victor of a pure state law case
and sought fees and costs in the amount of $80,440.86 on a theory of recovery Dr. Cordova
never pled.82 The LSU Defendants alleged that they were “forced to defend against” “frivolous
and groundless federal due process claims.”83 The LSU Defendants further argued that
“Plaintiff’s claims against the LSU Defendants never progressed past the initial pleading
stage.”84 The LSU Defendants asserted that Dr. Cordova’s claims were “woefully insufficient to
satisfy the elements of a Section 1983 claim,” “were groundless,” and “wholly lacking in
evidentiary support.”85
The billing records submitted to support the requested fees for the LSU Defendants’
attorneys establish that at the time of removal, the LSU Defendants were fully aware that Dr.
79
ROA.22-30548.2204.
Case: 21-30239, Document: 00516082769. Case: 21-30239, Document: 00516065873.
81
ROA.22-30548.1966.
82
ROA.23-30335.2177.
83
ROA.22-30548.1971-1974.
84
ROA.23-30335.1978. However, the LSU Defendants have argued to the state court that Dr. Cordova had a full
and fair opportunity to be heard and should be sanctioned for bringing a new claim in state court that occurred after
the dismissal of his state claims in federal court.
85
ROA.23-30335.2177.
80
18
Cordova’s state court petition was “without allegations of civil rights violation under 42 USC
1983 in anticipation of Rule 12(b)(6) motion.”86 More dubiously, the LSU Defendants were
strategizing for hours with their co-defendants, the Louisiana Department of Justice, and others
to determine the best way to improperly defeat Dr. Cordova’s viable state court claims without
due process. The billing entries of the LSU Defendants exemplify gamesmanship with winning
as their goal rather than the time honored, orderly, and truth-seeking function of our federal
judicial system.87
On January 13, 2021, after the Bezous were dismissed due to their refusal to raise the issue of
subject matter jurisdiction, Dr. Cordova filed an Amended Motion for Remand and requested
that all state law claims be remanded to state court. In support of remand, Dr. Cordova argued
that Respondents’ claims of frivolity supported remand for lack of subject matter jurisdiction
rather than dismissal since under the substantiality doctrine “a court may find it lacks subject
matter jurisdiction over a federal constitutional claim or statutory right if that claim is
sufficiently weak.” Dr. Cordova’s state law case should have been remanded for lack of subject
matter jurisdiction since the LSU Defendants admitted that the federal claims were “wholly
insubstantial and frivolous.”88 The LSU Defendants’ admissions prove that federal jurisdiction
was lacking and the district court was required to remand rather than dismiss the state law claims
under this Court’s long standing precedent. 89
On January 21, 2021, the district court issued an order that it must determine Dr. Cordova’s
lack of jurisdiction objections before rendering a decision on the merits. The district court stated:
86
ROA.23-30335.1989.
ROA.2330335.1991.1992.1993.1994.2002.2003.2004.2013.2014.2015.2022.2024.2029.2030.2051.2062.2073.209
7.2098.2101.
88
Williamson v. Tucker, 645 F.2d 404, 416 (5th Cir. 1981).
89
Federal question requires a colorable claim of right arising under federal law and the court may find it lacks
subject matter jurisdiction if the claim is weak. Put simply, a frivolous federal claim can be dismissed for lack of
jurisdiction. Bell v. Hood, 367 U.S. 678 (1946).
87
19
“The court will not resume its consideration of any substantive issues in the case until the
plaintiff’s jurisdictional objections have been heard.” “If the case is not remanded, the court will
evaluate the remaining motions sua sponte to determine if any should be set for hearing.”90 No
further discovery was allowed and the hearing on the original Motion to Remand was cancelled
by the district court.91
On March 1, 2021, the magistrate judge issued a report and recommendation granting the
orders of remand for discretionary considerations but not for lack of subject of matter
jurisdiction.92 The magistrate judge did not have the benefit of initial disclosures or Rule 26(f)
reports detailing Dr. Cordova’s claims since the parties never completed the necessary
disclosures. Thus, the magistrate appeared to be under the mistaken belief that Dr. Cordova
raised only federal claims against the Lafayette and LSU Defendants. The report is silent
regarding Article III standing and the remand of Dr. Cordova’s state law claims as to the
Defendants. On March 11, 2021, Dr. Cordova filed: “Plaintiff’s Objection to and Appeal of
Magistrate Judge’s Report and Recommendation” pursuant to Local Rule 74.1(B) and Federal
Rule of Civil Procedure 72(b).93 Dr. Cordova sought de novo review from the district court of the
magistrate’s determination on jurisdiction and the remand of the state law claims against the
LSU and Lafayette General Defendants.94
On March 15, 2021, the
Lafayette General Defendants filed a response alleging Dr.
Cordova’s objections lacked merit, misunderstood the law, and confused jurisdiction with
90
ROA.23-30335.2284. All of Dr. Cordova’s claims against the Respondents were dismissed in the district court’s
December 17, 2020, Memorandum Ruling.
91
ROA.23-30335.2187.
92
ROA.23-30335.2837.
93
ROA.23-30335.2852-2858.
94
ROA.23-30335.2855.
20
merit.95 In support, the Lafayette General Defendants cited Steel Co. v. Citizens for a Better
Environment, arguing that this Court “instructed that ‘[t]he absence of a valid (as opposed to
arguable) cause of action does not implicate subject-matter jurisdiction.”96 The Lafayette General
Defendants further pointed the district court to the Fifth Circuit case of Beiser v. Weyler in
support of its legal position.97 However, Beiser warns of the awkward and inequitable preclusive
posture that the district court’s order of remand created. Finally, the Lafayette General
Defendants assert that Dr. Cordova’s argument that federal courts do not have jurisdiction over
wholly insubstantial federal claims “renders dispositive motion practice in this case toothless,
futile, and insusceptible of appellate review. That is not the law.”98 That same day, the LSU
Defendants also filed a response fully adopting the Lafayette General Defendants’ arguments in
extensio.99
On March 24, 2021, the district court entered a Judgment adopting the magistrate judge’s
Report and Recommendation, granted Dr. Cordova’s Motion to Remand and Amended Motion
to Remand, and granted the LSU Defendants’ motion for entry of judgment pursuant to Rule
54(b).100 The district court further held that it “agrees that, in light of the resolution of the claims
arising under federal law, the court should decline to exercise supplemental jurisdiction over the
remaining claims arising under state law between plaintiff and defendants the Gachassin Law
Firm and Christopher C. Johnston.”101 The district court placed all of its rulings, both
95
ROA.23-30335.2860.
ROA.23-30335-2860.
97
ROA.23-30335.2860.
98
ROA.23-30335.2861. Federal question requires a colorable claim of right arising under federal law and the court
may find it lacks subject matter jurisdiction if the claim is weak. Put simply, a frivolous federal claim can be
dismissed for lack of jurisdiction. Bell v. Hood, 367 U.S. 678 (1946). “Fraudulent removal” occurs when a removing
defendant’s assertion of federal jurisdiction is made in bad faith or is wholly insubstantial. Zachary D. Clopton &
Alexandra D. Lahav, Fraudulent Removal, 135 Harv. L. Rev. F. 87 (2021).
99
ROA.23-30335.2863.
100
ROA.23-30335.2865.
101
ROA.23-30335.2865.
96
21
jurisdictional and purported merits determinations, in the order granting Dr. Cordova’s Motions
to Remand for lack of subject matter jurisdiction. Finally, the judgment did not contain the
express language required by Fed. R. Civ. P. Rule 54(b). On April 14, 2021, the district court
denied the LSU Defendants’ request for attorney’s fees asserting:
Plaintiff spends most of his opposition focused on his subject matter jurisdiction
argument, which the court has already rejected and finds frivolous in itself.102
3. Subsequent Proceedings in State Court for Injunctive/Declaratory Relief.
While his case was pending on the first appeal of this matter, Dr. Cordova completed his
family medicine residency training program from the University of Alabama at Selma.103
However, Dr. Curry again disseminated false information regarding Dr. Cordova’s performance
while he was a first year resident at UHC to the state medical licensure boards on June 10, 2021
and in January of 2022. Unlike the information that Dr. Curry shared between residency
programs in Dr. Cordova’s initial lawsuit, the ACGME informed all program directors across the
country “[t]he milestones were not designed or intended for use by external entities, such as state
medical licensing boards or credentialing entities, to inform or make high stakes decisions.” 104 It
cannot be disputed that Dr. Curry inappropriately released Dr. Cordova’s individual Milestone
information to the Mississippi and Louisiana licensing boards in violation of the ACGME
declarations that prohibits the release of that information for high stakes decisions even if it is
true. However, the information released by Dr. Curry is false; therefore, the release of Dr.
Cordova’s confidential information was in bad faith and violated the Lafayette General
102
ROA.23-30335.2873.
The prior appeal in this matter was the subject of the first Writ of Mandamus filed before this Court in In re. J.
Cory Cordova, No.: 21-1280. Denied on May 16, 2022. Dr. Cordova completed his medical residency training
program one and half years behind schedule due to his wrongful dismissal from UHC.
104
ROA.23-30335.5771-5776
103
22
Defendants’ policies and LA R.S. 23:291 making a preliminary injunction to prevent future
improper disclosures not only legally appropriate but necessary.
On June 8, 2022, Dr. Cordova filed a petition against Dr. Karen Curry and the Lafayette
General Defendants requesting injunctive relief to prevent further disclosures and declaratory
relief regarding the true nature of Dr. Cordova’s employment status.105 The petition was met with
various exceptions including a peremptory exception of federal res judicata in state court who
was not privy to the voluminous federal record of these proceedings. Therefore, Dr. Cordova
requested that the state court stay the state proceedings to allow the federal district court to
determine its jurisdiction and/or clarify the preclusive effect of its March 24, 2021, judgment.106
4. Proceedings in District Court Related to Clarification and Motion for Relief of
Judgment Pursuant to Federal Rule of Civil Procedure Rule 60.
On July 8, 2022, Dr. Cordova filed a Rule 60(b) motion before the district court requesting
relief from its previous adverse judgments/orders for six (6) mutually exclusive reasons
including lack of subject matter jurisdiction. The LSU and Lafayette General Defendants
opposed the motion arguing it was unfounded, untimely, and requested sanctions. The district
court denied Dr. Cordova’s motion as untimely and without merit. The district court stated:
“Finally, to the extent the plaintiff otherwise seeks clarification of the court’s prior rulings, those
should stand for themselves.”107 Additionally, the district court awarded the LSU Defendants
attorneys’ fees pursuant to 42 U.S.C. § 1988 due to Dr. Cordova’s “unfounded allegations of
compromised representation and arguments about ancillary issues such as the status of the
Lafayette General defendants as private employers.”
105
23-30335.2895. Dr. Cordova attached his pending state court petition to his Motion for Relief from Judgment
filed in district court.
106
ROA.23-30335.2895.
107
See Appendix, p. 51.
23
5. Appeal to Fifth Circuit Related to the Motion for Relief of Judgment Pursuant to
Federal Rule of Civil Procedure 60 (Case Nos.: 22-30548 C/W 22-30732).
Dr. Cordova appealed the district court’s ruling denying the Motion for Relief of Judgment to
the Fifth Circuit in Case No. 22-30548. On appeal to the Fifth Circuit, Dr. Cordova contended
the Motion for Relief of Judgment was timely and raised issues of subject matter jurisdiction and
due process pursuant to Carter v. Fenner, 136 F.3d 1000, 1005 (5th Cir. 1998) and Williams v.
New Orleans Public Serv., Inc., 728 F.2d 730, 735 (5th Cir.1984). Dr. Cordova further argued
that intervening and controlling case law negated federal subject matter jurisdiction requiring
vacatur and a remand of the case back to state court. Finally, Dr. Cordova argued that Rule
60(b)(6) allowed the district court to reopen a judgment in extraordinary circumstances,
including a change in controlling law and intervening developments of facts citing Buck v. Davis,
580 U.S. 100, 126, 128. (2017).
In a separate appeal in Case No.: 22-30732, Dr. Cordova also sought review of the collateral
order awarding attorney’s fees to the LSU Defendants pursuant to 42 U.S.C. § 1988. In the
appeal of the collateral order, Dr. Cordova argued that attorney’s fees were improperly awarded
because: 1.) no separate motion was filed by the LSU Defendants; 2.) the district court
previously refused to declare the LSU Defendants the victors in the underlying purported civil
rights’ action; and 3.) attorney’s fees may not be awarded pursuant to Section 1988 since no
subject matter jurisdiction existed and the LSU Defendants misrepresented the nature of their
employment relationship.108 Dr. Cordova pointed the Fifth Circuit to the employment forms and
108
ROA.22-30335.2935.
24
other specific documentation in the record supporting his argument that UHC, a private actor,
was the true employer.109
On April 17, 2023, the Fifth Circuit issued a per curiam unpublished opinion that
consolidated the appeals on its own motion. Two of the three members of the panel were the
same members that heard Dr. Cordova’s previous appeal issuing the mandate on May 19, 2022;
however, the panel concluded the Rule 60(b) motion, filed on July 8, 2022, was untimely
because 471 days had elapsed before Rule 60(b) relief was sought.110 Without any jurisdictional
analysis of Article III standing, the Fifth Circuit concluded that Dr. Cordova “quoted the
Fourteenth Amendment and alleged due process violations making the state case plainly
removable.” The Fifth Circuit also determined Rule 38 sanctions were warranted since:
“Cordova has repeatedly refused to heed the district court’s warnings about ‘unreasonable
attempts at continuing this litigation’ with an untimely and meritless 60(b) motion.” The Fifth
Circuit remanded the case to the district court to determine the appropriate sanction to be
assessed “that both deters vexatiousness and also does not duplicate the other sanctions imposed
or to be imposed in this case.”111 Finally, on May 4, 2023, the Fifth Circuit denied Dr. Cordova’s
motion to stay the mandate pending the filing of a writ of certiorari to this Court.112
The award of Rule 38 sanctions and review of the lower courts’ jurisdictional determination
is the basis of Dr. Cordova’s petition pending before this Court. To date, Dr. Cordova has been
sanctioned by the state court, district court, and the Fifth Circuit for “unreasonable attempts at
109
ROA.23-30335.2910-2913.
It is unknown how the panel determined that Dr. Cordova waited 471 days when only 50 days had elapsed since
the same members of the panel issued the mandate and the delays to seek review from this Court did not elapse until
July 12, 2022 or 4 days after Dr. Cordova filed his Rule 60(b) motion before the federal district court.
111
See Appendix, p. 11.
112
See Appendix, p. 4.
110
25
continuation of this litigation” for exercising rights explicitly recognized by this Court.113
Therefore, a stay of the proceedings to prevent additional sanctions and execution of the
sanctions already obtained through enforcement of a void judgment is respectfully requested
from this Court.
ARGUMENT
Applicant, J. Cory Cordova, M.D., (“Dr. Cordova”) is entitled to a stay pending appeal
because (1) Dr. Cordova is likely to succeed on the merits; 2.) Dr. Cordova will be irreparably
injured absent a stay; 3.) a stay will not substantially injure other parties; and 4.) a stay serves the
public interest. Factors one and two are critical, imminent, and certain.
I. APPLICANT IS LIKELY TO PREVAIL ON THE MERITS
A. Respondents, as the Party who Invoked the Jurisdiction of the Federal Court, Bears
the Burden of Establishing Jurisdiction.
When a lower federal court lacks jurisdiction, this Court has jurisdiction, not of the merits,
but merely for the purpose of correcting the error of the lower court in entertaining the suit. 114 In
Steel Co. v. Citizens for a Better Env’t, this Court rejected the use of “hypothetical jurisdiction”
under which courts assumed the existence of jurisdiction, where that analysis would be
particularly complex, and resolved the case on a simpler merits question.115 This constituted
what the majority derided as a “drive-by jurisdictional ruling” that produced “nothing more than
a hypothetical judgment—which comes to the same thing as an advisory opinion, disapproved by
this Court from the beginning.”116 Hypothetical jurisdiction runs afoul to separation of powers
113
See Appendix, pp. 11, 33, and 53.
Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 95, 118 S. Ct. 1003, 1013, 140 L. Ed. 2d 210 (1998) citing
United States v. Corrick, 298 U.S. 435, 440 (1936).
115
523 U.S. 83, 89 (1998).
116
Id. at 93-94.
114
26
and structural constitutional imperatives that a federal court lacked the power to consider or
resolve the substantive merits unless and until it had established its jurisdiction.117
In this case, the district court improperly assumed jurisdiction over this case rather than
requiring the LSU Defendants to prove by a preponderance of the evidence that subject matter
jurisdiction existed. The LSU Defendants strategically removed this matter despite being aware
that Dr. Cordova’s petition was “without allegations of civil rights violation under 42 USC 1983
in anticipation of removal and the filing of a 12(b)(6) motion.”118 This type of dubious strategy,
whereby state court defendants remove a case to federal court and dismiss the case for lack of
jurisdiction is improper and wastes substantial judicial resources. The LSU Defendants, as the
party invoking federal jurisdiction, bear the burden of establishing that all elements of
jurisdiction, including Article III standing, existed at the time jurisdiction is invoked.
Initially, the LSU Defendants removed this matter based on the district court
“unquestionably” having subject matter jurisdiction because a “Section 1983 claim is facially
removable.”119 Once removed, the LSU Defendants took the complete opposite position and
immediately began filing dispositive motions alleging that Dr. Cordova failed to allege a civil
rights action.120 The LSU Defendants further alleged that Dr. Cordova’s federal claims relied on
“undisputedly meritless legal theory,” and that “it is undeniable that Dr. Cordova identified no
constitutional deprivation.”121 It is these arguments advanced by Respondents, who bear the
burden of establishing jurisdiction, that prove the judgment is void and without legal effect due
to lack of federal jurisdiction.
117
Id. at 91.
ROA.21-30329.1145.
119
ROA.21-30239.32-33.
120
ROA.21-30239.380-403.
121
ROA.21-302391136-1138.
118
27
B. Respondents Lack Standing to Remove the Case as Private Actors.
This Court’s precedent establishes that a plaintiff generally cannot sue a private company or
individual for violations of his constitutional rights.122 The record contains voluminous
documents and other public records surrounding the public private partnership between
Louisiana State University Health Science Center (“LSUHSC”) and University Hospital and
Clinics, Inc. (“UHC”). The agreements and other documentation in the record establish that Dr.
Cordova and all named Defendants are employed by private actors. Objective evidence that Dr.
Cordova was employed by University Hospital & Clinics (“UHC”) includes: 1.) Dr. Cordova’s
Form W-4 which lists UHC as his employer;123 2.) Dr. Cordova’s Louisiana Department of
Revenue Form L-4 which lists UHC as his employer;124 3.) Dr. Cordova’s Immigration Form I-9
which lists UHC as his employer;125 and 4.) Dr. Cordova’s Medicare Enrollment Record which
also lists UHC as his employer.126
The Master Collaborative Agreement executed on June 24, 2013, between UHC, Lafayette
General Health Systems (LGHS), and the LSUHSC through its Health Care Services Division
clearly define the employer of Dr. Cordova, Dr. Curry, Dr. Sells, and Kristi Anderson. The
agreement contains an unambiguous provision entitled “Statutory Employer” whereby UHC and
LSUHSC agreed “that UHC is the principal or statutory employer of LSU’s employees for
purposes of LA R.S. 23:1061 (a) only.” UHC and LSU also acknowledged UHC’s status as the
“statutory or as the special employer (as defined in LA R.S. 23:1031(C)) of LSU’s
122
Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999). Burnett v. Grattan,
468 U.S. 42, 45 (1984).
123
ROA.23-30335.2914.
124
ROA.23-30335.2915.
125
ROA.23-30335.2916.
126
ROA.23-30335.2917-2918.
28
employees.”127 UHC further agreed that the services performed by LSU “are an integral part of
and are essential to the ability of UHC to generate UHC’s goods, products and/or services” and
“shall be considered part of UHC’s trade, business, and occupation for purpose of LA R.S.
23:1061(a)(1).”128
Under Louisiana law, this contractual language is preclusive as to UHC’s employer status.
Per the agreement contained in the record, Louisiana law is the governing law and the Louisiana
Supreme Court has held “the purpose behind the statutory employer doctrine was to prevent
principals from evading their compensation responsibilities by interposing a ‘straw man’
between them and those ‘employees’ who are doing the whole or part or their trade.” 129 A
worker should be protected as to the compensation obligation owed to him, and “the principal
should not be allowed to insulate itself through a contracting scheme.”130 Moreover, given the
existence of a written contract as required by LA R.S. 23:1061(A)(3), UHC is presumed to be the
statutory employer of all of LSUHSC’s employees. This presumption may only be rebutted by
demonstrating a fact that is already admitted in the contract—that the work performed by these
employees is not part of UHC’s trade, business, or occupation.131 UHC is liable for the tortious
actions of its employees under Louisiana Civil Code Article 2320, LA R.S. 23:291, and LA R.S.
9:3921.
The record also contains the 2017 IRS Form 990 for UHC identifying UHC as a teaching
hospital “created as a result of a cooperative endeavor agreement between the State of Louisiana,
127
ROA.23-30335.4619.
ROA.23-30335.4619.
129
Allen v. State ex rel. Ernest N. Morial-New Orleans Exhibition Hall Auth., 2002-1072 (La. 4/9/03), 842 So.2d
373, 382.
130
Id.
131
Preston v. S. Univ. Through Bd. of Supervisors of S. Univ. Agric. & Mech. Coll., 2020-0035 (La. App. 1 Cir.
7/13/21), 328 So. 3d 1194, 1202, writ not considered, 2021-01217 (La. 11/17/21), 327 So. 3d 510.
128
29
LSU, and LGHS to provide for the operation of the former University Medical Center.”132 UHC
asserts that it has “two home based residency programs providing graduate medical education” in
“internal medicine and family medicine.”133 UHC’s IRS Form 990 establishes that during the
time period Dr. Cordova attended UHC, it received federal funding to educate, supervise, and
control the residents and further paid $22,851,383.00 to LSU-New Orleans for residents and
faculty for “transitions services.”134 UHC’s direct controlling entity is Lafayette General Health
Systems, Inc. (“LGHS”), the management company for the hospital known as UHC. LGHS’s
2017 IRS Form 990 reflects that it also paid LSU-New Orleans $24,347,499.00 for services
related to “residents and faculty.”135
Dr. Cordova further requested that the district court and the Fifth Circuit afford full faith and
credit to the Louisiana Supreme Court’s intervening and controlling decisions in the consolidated
matters of Hayes v. University Health Shreveport, 21-1601 332 So.3d 1163 (La. 1/7/22) and
Nelson v. Ochsner Lafayette General, 21-1453 (La. 1/7/22). The consolidated cases involved a
mandatory vaccine policy implemented by the Lafayette General Defendants. The notice was
directed to all “physicians, APPs [advanced practice providers,] and all employees, vendors,
contracted staff, medical and allied health students, residents, fellows, and agency staff.”136 The
notice provided that individuals who were not vaccinated by the initial deadline would be placed
132
ROA.23-30335.4224.
ROA.23-30335.4224.
134
ROA.23-30335.4231.
135
ROA.23-30335.4278.4332. The LGHS tax return also reflects that it paid $586,286.00 to an additional party
named in the remanded portion of this lawsuit, the Gachassin Law Firm. The Gachassin Law Firm represented Dr.
Cordova in contesting the RFAA but failed to disclose a conflict of interest and failed to timely request a hearing on
his behalf when UHC improperly dismissed Dr. Cordova from its residency program.
136
Hayes v. Univ. Health Shreveport, LLC, 2021-01601 (La. 1/7/22), 332 So. 3d 1163, 1166 FN 4. Emphasis added.
133
30
on leave and individuals not fully vaccinated by the final deadline would be terminated for
policy violations.137
In ruling for Lafayette General/UHC (the same Respondents herein represented by the same
counsel herein), the Louisiana Supreme Court noted “[t]here is no allegation or even the barest
insinuation that Employer is a state actor; indeed, the parties in this case stipulated that Employer
is a private actor.” Further, the Louisiana Supreme Court stated that Lafayette General/UHC as a
private actor could not present issues of federal law and solely state law applied. Specifically,
the Louisiana Supreme Court held: “While courts have found La. Const. art. I, § 5 applicable to
government conduct, Louisiana courts have not applied it to private action. Therefore, the
validity of these cases is upheld, and this court declines the invitation to extend the scope of La.
Const. art. I, § 5 to restrict private actors.”138 The Louisiana Supreme Court’s determinations are
legally preclusive as to the issue of Dr. Cordova’s true employer as a resident at UHC. In
keeping with the inherent goals of federalism, the Louisiana Supreme Court decision should have
been afforded full faith and credit as it raises subject matter jurisdiction issues relevant to this
case and involves the same Defendants represented by the same attorneys.
Respondents in this case simply cannot have it both ways. The Lafayette General Defendants
cannot accept Medicare graduate medical education payments and bill Medicaid/Medicare as a
provider for a resident’s services and at the same time claim they do not educate, supervise, or
control the residents. Likewise, the Lafayette General Defendants cannot litigate before the
Louisiana Supreme Court its CMS mandatory vaccination policy upon its employees (which
included the residents) to ensure the continued receipt of Medicaid/Medicare funds and at the
137
138
Id. Emphasis added.
Id.
31
same time sanction Dr. Cordova for requesting that the federal courts give full faith and credit to
the decision that is preclusive to this case.
C. The Public Interest of the Citizens of Louisiana Favor a Stay
Respondents, the LSU Defendants represented by the Louisiana Attorney General, have
dispassionately filed a waiver to respond to Dr. Cordova’s petition pending before this Court
(Case No.: 23-55) that details suppression of core speech and viewpoint discrimination by a state
government colluding with private actors. The filing of a waiver by Respondents and the
Louisiana Attorney General should not be construed as disinterest or lack of concern about the
issues raised by Dr. Cordova. The Louisiana Attorney General has concurrently and successfully
obtained an injunction in district court to prohibit government censorship through social media
platforms by the federal government. State of Missouri v. Biden, (Fifth Circuit Case No.: 2330445), will likely be heard by this Court as a matter of national concern involving suppression
of viewpoints by private entities colluding with the federal government.
In Missouri v. Biden, the Louisiana Attorney General has taken the position that viewpoint
discrimination and government censorship is so crucial that he has a sovereign interest in
protecting all citizens of Louisiana from irreparable harm. However, in light of the Louisiana
Attorney General’s filing of a waiver in this case involving the very same issue, a precedent may
be established that the citizens of Louisiana have more free speech rights when speaking freely
regarding the actions of federal officials than they do when speaking freely regarding the actions
of state officials. Stated differently, if Dr. Cordova speaks openly regarding concerns regarding
federal officials, the Attorney General has a sovereign interest in championing those rights;
however, when Dr. Cordova sought relief from the improper litigation tactics employed by the
Louisiana Attorney General, Dr. Cordova’s arguments were repeatedly and punitively sanctioned
32
based on the lower courts’ subjective view that Dr. Cordova’s arguments were frivolous and
made in bad faith. Respondents and the lower courts have consistently warned Dr. Cordova that
if continues to seek relief and fails “to heed the warnings” of the lower courts, he will incur
additional sanctions to prohibit his core political speech rights causing irreparable harm to his
right to speak and the people of Louisiana’s right to hear. It is concerning that the Louisiana
Attorney General claims standing to pursue an action against the federal government while the
very same rights of a Louisiana citizen are being violated in this case. Nevertheless, Dr. Cordova
agrees that this type of action establishes irreparable harm and an injunction or stay of these
harmful actions is appropriate.
II. THE EQUITIES OVERWHELMINGLY FAVOR A STAY
A. Dr. Cordova will Experience Substantial and Unrecoverable Harm
This Court’s precedent is clear that sanctions intended to silence litigants or deter lawyers
from bringing colorable arguments is prohibited particularly when the regulator seeking to
“truncate presentation to the courts” of certain arguments is also the entity whose law the
lawyers are forbidden from challenging.139 This Court held: “The Constitution does not permit
the Government to confine litigants and their attorneys in this manner.”140 Thus, courts may not
exclude from litigation those arguments and theories the court finds unacceptable which by their
nature are within the province of the court to consider.
Respondents have filed ten (10) Motions for Sanctions that are duplicative and unsupported
by existing law in state or federal court. The opinions of the lower courts do not identify the
precise action/argument that the courts seek to deter. Rather, all of the courts opinions regarding
139
140
Legal Services Corporation v. Velazquez, 531 U.S. 533 (2001).
Id. at 548.
33
sanctions indicate Dr. Cordova has refused “to heed the warnings” of the district court but fail to
point to a specific argument raised by Dr. Cordova that may be construed as objectively
frivolous. It is the courts’ monetary rewards to the Respondents designed to silence core speech
through punitive sanctions that run afoul to the Constitution and this Court’s precedents.
Respondents have been awarded $237,724.81 to be paid by Dr. Cordova and the undersigned
counsel for filing a Rule 60(b) in federal district court, an appeal from a denial of that motion,
and a petition for nonmonetary injunctive and declaratory relief for improper disclosures that
occurred after the judgment at issue.
Dr. Cordova has been ruled into court by the Respondents in state and federal court ten (10)
times. Despite the number of hearings, the merits of Dr. Cordova’s claims have never been heard
by any court. On October 11, 2022, the federal district court awarded the LSU Defendants
sanctions in the amount $11,582.50 in attorney’s fees and $637.54 in costs of pursuant to 42
U.S.C. § 1988 for Dr. Cordova’s “unfounded allegations of compromised representation and
arguments about ancillary issues such as the status of the Lafayette General defendants as private
employers.”141 On March 29, 2023—the state trial court (Division L) awarded sanctions in the
amount of $98,390.17 to the Lafayette General Defendants for the filing of injunctive/declaratory
relief precluded by federal res judicata.142 Dr. Cordova has sought review of the award of
sanctions by Division L in two (2) separate appeals to the Louisiana Third Circuit Court of
Appeal. In response, the Lafayette General Defendants have sought two (2) sets of sanctions for
Dr. Cordova’s appeal as of right. The Lafayette General Defendants also sought to enforce their
attorney’s fee award despite the pending suspensive appeal. When undersigned counsel advised
141
See Appendix, p. 35, the District Court Judgment of October 11, 2022 awarding LSU Defendants Sanctions. See
also Appendix, pp. 34 and 53.
142
See Appendix p. 73, the state trial court’s Rule to Show Cause ordering the undersigned and Applicant to appear.
Appendix p. 62 is the state court judgment awarding sanctions. Appendix, p. 73-75 contains the state court’s written
reasons for ruling on sanctions for filing a claim precluded by federal res judicata.
34
the state trial court that the pending appeal divested the trial court of jurisdiction, the state court
overruled this objection and ordered Dr. Cordova and the undersigned to appear on September 5,
2023 for a hearing to be held in direct contempt of court.143
On April 13, 2023, sanctions in the amount of $29,692.70 were awarded to the Lafayette
General Defendants by the federal district because the undersigned counsel acted in bad faith by
alleging the Lafayette General Defendants employed Dr. Cordova.144 On May 12, 2023—the
Lafayette General Defendants sought sanctions after the undersigned counsel filed a routine and
mandatory Motion to Consolidate to transfer the action dismissed on the grounds of federal res
judicata into the remanded portion of this case currently pending in another division of the 15th
Judicial District Court in Lafayette, Louisiana. This request for sanctions remains pending and
has not been heard or ruled upon by Division D.
On June 29, 2023, the Lafayette General Defendants were awarded sanctions by the district
court in the amount $50,664.74 pursuant to Fed. R. App. P. Rule 38 and the Fifth Circuit’s April
17, 2023 remand that are currently pending review by this Court.145 On July 17, 2023, the state
court awarded $47,394.70 to Dr. Curry for filing a frivolous claim in state court precluded by
federal res judicata.146 Dr. Cordova noticed his intent to file a suspensive appeal and the state
trial court refused to provide a return date for the appeal until Dr. Cordova posts a security bond
thereby limiting his right to appeal the imposition of sanctions.147 The Lafayette General
Defendants and the state trial court have taken the position that the award of sanctions is a
“money judgment” akin to a civil jury award entitling the Defendants to the requirement of Dr.
143
See Appendix, p. 62.
See Appendix, pp.17-18. See also Appendix pp. 19-33, the February 27, 2023 Memorandum Ruling awarding
Sanctions to Lafayette General Defendants.
145
See Appendix, pp. 14-16.
146
See Appendix, pp. 63-67, the July 17, 2023 award of sanctions based on federal res judicata awarded by state
court to Dr. Curry.
147
See Appendix, p. 56.
144
35
Cordova posting security to suspend the execution of the judgment awarding sanctions. This
signals additional attempts in the future to further thwart Dr. Cordova’s appellate rights and
impose additional irreparable harm by utilizing aggressive enforcement practices in the event
security is not posted.
One day after electronically filing the petition pending before this Court, or on July 18, 2023,
the Lafayette General Defendants filed a Motion for Entry of Judgment requesting the district
court to issue a separate judgment of its June 29, 2023, Memorandum Ruling awarding Rule 38
sanctions in the amount of $50,664.74 so that it can be immediately enforced. Out of fear of
more punishment and/or retaliation, Dr. Cordova did not object and a final judgment was entered
on August 14, 2023 ordering Dr. Cordova to pay the amount of $50,664.74 by September 13,
2023.148 The imposition of Rule 38 sanctions is currently pending review by this Court.149 On
August 8, 2023, the Lafayette General Defendants filed an Appellee Brief before the Fifth
Circuit in Case No.: 23-30335, the appeal of the Rule 11 sanctions against undersigned counsel,
and requested a second award of Rule 38 sanctions for “ignoring the district court’s warning
about unreasonable attempts at continuing this litigation echoed by this Court.” The Lafayette
General Defendants also conclusively asserted the appeal was “frivolous,” and “interposed for
improper purposes.”150
B. Factual Findings and Objective Evidence in the Record
The factual findings contained in the written opinions of the state and federal courts regarding
sanctions are inconsistent with the evidence contained in the record and the precedents of this
148
See Appendix, p. 13. See also Appendix, p. 76, the email correspondences from counsel for the Lafayette General
Defendants threatening Dr. Cordova that his client will “atone” for Dr. Cordova’s recent wrongs which could only
include petitioning this Court for relief in this case.
149
See Appendix, p. 13.
150
See Fifth Circuit Case No.: 23-30335, Document 30.
36
Court. For instance, the federal district court imposed sanctions for the filing of a Rule 60(b)
motion because of its “meritless arguments and lack of investigation regarding the Lafayette
General defendants’ potential liability as employers are so unfounded as to amount to violations
of Rule 11(b)(1)-(3).” However, at the hearing on sanctions, Dr. Cordova advised the district
court that the record evidence contained a contract identifying the Lafayette General Defendants
as Dr. Cordova’s statutory employer:
THE COURT: The problem with that statutory employer argument is there
has to be a contract, it has to be signed, has to be very specific language in it
about them being a statutory employer.
MS. MIRE: And it's in a signed contract with the specific language that he is
a statutory employee and UHC employs them, and they represented to this
Court they do not employ and continue to represent to this Court they do not
employ even today. After I –
THE COURT: It's a novel argument. I'll give her that.
MS. MIRE: After I filed in state court yesterday this very document, he
stands up today and says he doesn't employ Dr. Cordova. That in and of itself
is sanctionable.151
***
THE COURT: I give you kudos. It's a novel way of thinking about it, but it's
just not the same thing.152
Novel arguments can neither be sanctioned nor can it serve as the basis of a finding of bad
faith. Nevertheless, the district court imposed sanctions upon the undersigned and warned Dr.
Cordova that he would expose himself to liability if he continues to seek justifications to reopen
the suit.153 Moreover, the district court made statements at the hearing that suggested it believed
that the filing of the Rule 60(b) motion in and of itself was sanctionable:
MS. MIRE: To the extent that the Court's ruling was that the 60B was denied, I
appreciate that, I respect that; but that in and of itself, just because I lost, does not
mean that it's sanctionable. I filed one 60B motion.
151
ROA.23-30335.6558, ll. 17-25; ROA.23-3033.6559, ll. 1-18. Emphasis added.
ROA.23-30335.6560, ll. 13-25.
153
See Appendix, p. 33, footnote 2.
152
37
THE COURT: I think the reason it's a little different is because the purpose of
the 60B is rehashing issues I'd already ruled on in the summary judgments and the
12(b)(6) motion. I already heard the conflict issue. I heard that in the original
argument.
MS. MIRE: I didn't even know of the conflict issue so there's no way it was.
THE COURT: That wasn't raised at the initial thing?
MS. MIRE: No, sir.154
Thereafter, the undersigned counsel reminded the district court that all of its prior orders were
contained in the March 24, 2021 order granting remand. In response, counsel for Lafayette
General and the district court stated:
MR. GIBSON: The case she's talking about, the U.S. Supreme Court, again I've
been doing this awhile, motions to remand, those rulings are not appealable.
THE COURT: Well, there's no jurisdiction to appeal.
MR. GIBSON: That's right.
THE COURT: There's no federal jurisdiction once I remand it.
MR. GIBSON: That's been for 20 or 30 years.155
Imposing sanctions upon litigants or their lawyers for filing a Rule 60(b)(4) motion, particularly
when there is no jurisdiction to appeal, is inconsistent with this Court’s precedents and the
precedents of the Fifth Circuit.156 Although the district court did not identify any legal basis for
imposing sanctions, the district court stated:
THE COURT: The Court finds nothing -- look, I am not offended. Okay. I think
you’re trying to be an advocate for your client, and I appreciate that. Okay. But at
some point as an attorney you’ve got to look at the whole situation and you’ve got
to have a talk with your client, “Hey, we lost. Okay. There's nothing else I can do
for you on this. It’s done. The Court didn’t see it our way. We’ve got to move
on.”157
154
ROA.23-30335.6569, ll. 15-24.
ROA.23-30335.6557, ll. 10-18
156
In Beiser v. Weyler, 284 F.3d 665, 673 (5th Cir. 2002), the Fifth Circuit held that a remand order is not entitled to
preclusive effect. (explaining that when “a litigant, as a matter of law, has no right to appellate review, then he has
not had a full and fair opportunity to litigate and the issue is not precluded”); see also Winters v. Diamond Shamrock
Chem. Co., 149 F.3d 387, 395 (5th Cir. 1998) (suggesting that “collateral estoppel may not be applied offensively to
a jurisdictional decision—such as one granting a motion to remand—that is not capable of being subjected to
appellate review”); 18A Charles Alan Wright et al., Federal Practice and Procedure § 4433 n.39 (3d ed. 2021).
157
ROA.23-30335.6567, ll. 12-24.
155
38
***
THE COURT: I understand. But still, the client, he has -- you have a duty to
consult him and I figure you met that duty, and he knew -- you know, at some
point you've got to tell your client, “Hey, you know what, we lost.” And I don't
know if he's pushing you to keep reviving this or you're doing this on your own,
but I'm just going to tell you in the federal court system you're done and he needs
to not push you to come back up here with this case anymore. I mean, I don't
know what's going on in state court. Maybe you can revive it there, but it's not
going to get revived in the federal court system.
MS. MIRE: It was res judicata. There is no recourse for him. Even the new
releases, the Court ruled based on the federal res judicata statute that we could not
bring even an injunction or declaratory action to even stop the false dissemination
that’s affecting his livelihood. In this case, Judge, it's affecting a livelihood when
that information should not even be released. I attached to my opposition to
sanctions –158
Respondents were also awarded sanctions from the Fifth Circuit who determined: “Cordova
has repeatedly refused to heed the district court’s warnings about ‘unreasonable attempts at
continuing this litigation’ with an untimely and meritless 60(b) motion.” Finally, the Fifth Circuit
remanded to the district court to determine the appropriate sanction to be assessed “that both
deters vexatiousness and also does not duplicate the other sanctions imposed or to be imposed in
this case.” Respondents’ basis for Rule 38 sanctions were conclusory, inflammatory, and alleged
Dr. Cordova’s modus operandi is that he “looks at the blue sky and declares it green. This is not
a valid basis for appeal.” These types of allegations make it difficult to discern the basis for
sanctions if the intended goal is deterrence; however, one of the allegations made by
Respondents was:
On appeal, Appellant fails to explain how the district court erred or assert a
coherent rebuttal of its reasoning. He offers no independent analysis beyond that
already rejected by the district court. Instead, Appellant re-urgues lack of subject
matter jurisdiction as a magic bullet against untimeliness under Rule 60(b)(6),
neglecting to identify and distinguish well-settled law holding that res judicata
158
ROA.23-30335.6563, ll. 5-24.
39
bars reexamination of subject matter jurisdiction given his failure to timely
appeal.
The Fifth Circuit reviews de novo a district court's denial of a Rule 60(b)(4) motion to set aside a
judgment as void.159 “Rule 60(b)(4) motions leave no margin for consideration of the district
court’s discretion as the judgments themselves are by definition either legal nullities or not.”160
Dr. Cordova’s Rule 60(b) motion was supported by existing jurisprudence and ample, unrefuted
evidence that should have been reviewed de novo rather than sanctioned.
Dr. Cordova was also sanctioned in state court for the following reasons: “The filing of the
Instant Suit against the Lafayette General Defendants was clearly precluded by res judicata.”
“Her actions in seeking a stay of the Instant Suit and attempting to re-open Cordova I after the
exception of res judicata was filed demonstrate that knowledge. Sanction [sic] is appropriate in
this case.” This opinion is inconsistent with the pleadings and arguments made in the state court
proceedings and effectively ensures that Dr. Cordova will not be heard by any state or federal
court. Assuming arguendo that the March 24, 2021, judgment does have preclusive effect, it
does not bar Dr. Cordova’s new cause of action that occurred on June 10, 2021. Dr. Cordova
provided the state court with Fifth Circuit cases that hold: “The doctrine of res judicata does not
bar a party from bringing a claim that arose subsequent to a prior judgment involving the same
parties.”161 When the undersigned requested that the state court stay its proceedings to allow the
159
Callon Petroleum Co. v. Frontier Ins. Co., 351 F.3d 204, 208 (5th Cir. 2003).
Sec. & Exch. Comm'n v. Novinger, 40 F.4th 297, 301–02 (5th Cir. 2022) citing Brumfield v. La. State Bd. of
Educ., 806 F.3d 289, 296 (5th Cir. 2015) (quoting Carter v. Fenner, 136 F.3d 1000, 1005 (5th Cir. 1998)).
161
Am. Home Assur. Co. v. Chevron, USA, Inc., 400 F.3d 265, 272 (5th Cir. 2005). Dr. Cordova also pointed the
Court’s attention to footnote 22 contained in the Fifth Circuit opinion which cited other cases that makes clear that
the Court’s finding as to Dr. Cordova’s knowledge is misplaced. See, e.g., Lawlor v. National Screen Service Corp.,
349 U.S. 322, 328, 75 S.Ct. 865, 99 L.Ed. 1122 (1955) (prior judgment did not preclude subsequent suit on cause of
action arising after entry of the original judgment); Chapman v. Crane, 123 U.S. 540, 548, 8 S.Ct. 211, 31 L.Ed. 235
(1887); 46 Am Jur Judgments § 532 (“Obviously, if the cause of action in the second action arises after the
rendition of the judgment in the first action, it is a different cause of action not barred by the prior judgment”).
See also La.Rev.Stat. § 13:4231. Emphasis added.
160
40
federal court to determine its jurisdiction and the preclusive effect of the federal judgment, the
Lafayette General Defendants accused the undersigned of arguing inconsistent positions before
the state and federal courts. Thereafter, undersigned counsel was repeatedly sanctioned and
berated by the state trial court:
THE COURT: Okay. Ms. Mire, don’t act – don’t play dumb with me. Okay?
You’re before this Court, right now, on an exception of the res judicata. He has
just made the argument that Judge Cain’s determination in federal court are the
same operative facts. Do you have any response to that?
Due process guarantees a right to be heard and those basic guarantees and expectations of
justice are defeated if a litigant has no right to express and vindicate his/her rights in court
proceedings due to fear of sanctions, punishment, or retaliation. The legal actions taken by Dr.
Cordova are appropriate and disproportionate to the sanctions imposed. Far from permitting
excessive punitive sanctions, this Court has warned the Constitution guards against it.162 This
Court has further held that the “[p]rotection against excessive punitive economic sanctions” is
“fundamental” and “deeply rooted in this Nation’s history and tradition.”163 The key question is
whether the penalty imposed is punishment. It is clear that the sanctions imposed in this case do
not have the intended goal of deterrence.164 Rather, punitive sanctions chill Dr. Cordova’s right
to seek redress for legitimate grievances and deter others.
C. The Real Motive for Excessive Sanctions.
The briefs and voluminous evidence filed before the district court and the Fifth Circuit reveal
the true motive for the severe retaliation in this case. Dr. Cordova discovered a complicated
162
See Austin v. United States, 509 U. S. 602, 610 (1993).
Timbs v. Indiana, 139 S.Ct. 682 (2019).
164
Giaccio v. Pennsylvania, 382 U. S. 399, 402 (1966); Sessions v. Dimaya, 138 S.Ct. 1204 (2018) (Gorsuch, J.,
concurring in part and concurring in judgment) (slip op., at 10).
163
41
scheme exposing prohibited and complex structures by which UHC—a shell corporation formed
on April 18, 2013, wholly owned and funded by Lafayette General Health Systems, Inc.
(“LGHS”) and Lafayette General Medical Center, Inc. (“LGMC”)—collaborated with various
Louisiana state entities to receive Medicare/Medicaid disproportionate share hospital payments,
residency caps, and other federal benefits to which they were not entitled.165 The complexity of
this scheme and the improper assignment of the state’s Medicaid and Medicare numbers and
provider agreements to a private hospital (UHC) was discovered by Dr. Cordova due to the
unprecedented amount of stonewalling he received when he sought to clarify the true nature of
his employment relationship with the LSU and Lafayette General Defendants in this case.166
Through public records obtained from CMS, there is unrefuted, objective evidence in the
record that establishes in 2013, when the public private partnerships were formed, UHC filed a
Form 855B with CMS and asserted that its former legal business name was the state owned
“University
Medical
Center.”167
Thus,
UHC
obtained
and
has
used
the
state’s
Medicare/Medicaid identification number, as well as its legacy numbers, to receive benefits not
otherwise available to a private hospital.168 This discovery and the severe retaliation experienced
by Dr. Cordova and undersigned counsel was disclosed to the lower courts to seek whistleblower
protection and prohibit the continued retaliation through punitive sanctions. However, the district
court determined that the filing of a criminal complaint was Dr. Cordova’s “business” and
imposed additional sanctions.169
The public private partnership at University Hospital & Clinics, Inc. (“UHC”) in Lafayette, Louisiana was
formed to bail out the economically unstable charity (public) hospital system, University Medical Center, using
funding from private hospitals who were then repaid through the increased Medicare/Medicaid benefits subject to
disallowance. UHC operates an outpatient clinic, medical residency program, and inpatient hospital services.
166
ROA.23-30335.4620.
167
ROA.23-30335.5900.
168
See Dubin v. United States, U.S. Supreme Court No.: 22-10, decided June 8, 2023.
169
See Appendix, p. 15.
165
42
The Fifth Circuit overlooked the health care fraud and arguments made in Dr. Cordova’s
original and reply briefs filed in Case No.: 22-30732. Instead, the Fifth Circuit took the following
actions in Dr. Cordova’s appeal of the district court’s denial of the Rule 60(b) motion: 1.)
consolidated 22-30732 with Case No.: 22-30548 on its own motion; 2.) issued an unpublished
per curiam opinion determining Dr. Cordova’s Rule 60(b) motion was untimely and meritless;
3.) determined that “Cordova has repeatedly refused to heed the district court’s warnings about
‘unreasonable attempts at continuing this litigation;’” 4.) remanded to the district court to
determine the appropriate sanction to be imposed “that both deters vexatiousness and also does
not duplicate the other sanctions imposed or to be imposed in this case;” 5.) denied Dr.
Cordova’s request for sanctions and damages against Respondents without reasons; 6.) denied
the motion to disqualify counsel for the Lafayette General Defendants for a concurrent conflict
of interest with Dr. Cordova’s prior lead counsel without reasons; and 7.) denied Dr. Cordova’s
request for a stay to seek a writ to this Court.
The decision to report the discoveries in this case to federal law enforcement was not to vex
or harass Respondents. Rather, upon discovery of fraud involving public funds, there is no real
choice for any officer of the court who is duty bound by sworn oath to uphold the criminal and
ethical laws of our system of justice without fear or favor. Pursuant to 18 U.S.C. § 1035, it is a
serious felony to conceal, cover up, or hide by use of a scheme or device any Medicaid/Medicare
fraud. Nevertheless, Dr. Cordova and undersigned have been repeatedly and excessively
sanctioned by the district court, the Fifth Circuit, and the state court after seeking relief. The
retaliation has escalated with threats of imprisonment by the state court, denial of Dr. Cordova’s
right to appeal, additional punitive sanctions imposed, exorbitant sanctions to be aggressively
43
enforced upon Dr. Cordova’s property under the threat of contempt, and threats of more punitive
sanctions in the future.170
CONCLUSION
A stay is respectfully requested to ensure that additional sanctions are not imposed upon
Applicant for seeking redress from this Court for legitimate grievances that impact significant
public interests. The litigation tactics in this case have resulted in four years of delays and
depleted significant judicial resources. Thus, this case presents substantial issues that extend
beyond the affected client and implicate the integrity of our system of justice. This case
exemplifies the worst possible outcome for a plaintiff—dismissal of his case without a single
opportunity to be heard by any court due to no fault of his own.
Federal courts enjoy the inherent power to “manage their own affairs so as to achieve the
orderly and expeditious disposition of cases.”171 This power includes the ability to discipline
attorneys, punish for contempt, control admission to its bar, and vacate judgments.172 Enforcing
any judgment gained against any Plaintiff in this manner is unconscionable but when a judgment
is obtained against a front-line hero at the height of the COVID-19 pandemic, it puts our entire
system in disrepute. Applicant respectfully requests that this Court stay the past orders in this
matter and ensure that the tactics employed do not happen to any other litigant in the future. The
alternative is to clear the way for other Defendants who engage in gamesmanship, selective use
of the law, misrepresentations, procedural maneuvering, and strategic omissions to perfect and
reprise their schemes to deny litigants access to justice and further target Plaintiffs and their
170
See Appendix, p. 76, the email correspondence received from counsel for the Lafayette General Defendants one
day after the petition was filed with this Court.
171
Chambers v. NASCO, Inc., 501 U.S. 32, 43, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991) (quoting Link v. Wabash R.R.
Co., 370 U.S. 626, 630–31, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962).
172
Id. at 43–44, 111 S.Ct. 2123.
44
lawyers with impunity. Thus, Applicant, J. Cory Cordova, respectfully requests that this
Honorable Court grant a stay of these proceedings pending disposition of the pending petition for
a writ of certiorari.
RESPECTFULLY SUBMITTED BY:
S/Christine M. Mire
Christine M. Mire (Bar Roll Number: 29352)
2480 Youngsville Highway, Suite C
Youngsville, LA 70592
Telephone: (337) 573-7254
Facsimile: (337) 205-8699
Email: cmm@mirelawfirm.com
ATTORNEY FOR APPLICANT, J. CORY CORDOVA
45
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.