Case 1:09-cv-00752-HTW Document 8 Filed 04/13/09 Page 1 of 24

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA JAMES J. MURTAGH, M.D., Plaintiff, v. EMORY UNIVERSITY AND EMORY HEALTHCARE, INC., Defendants.1 ) ) ) ) ) ) ) ) ) ) )

CIVIL ACTION FILE NO. 1:09-CV-0752-HTW

EMORY UNIVERSITYS AND EMORY HEALTHCARE, INC.S MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION TO REMAND Defendants Emory University and Emory Healthcare, Inc. (collectively, Emory or Defendants) hereby move for the entry of an order remanding this matter to the Superior Court of Fulton County, Georgia (the State Court). Dr. Murtaghs attempted removal of Emorys Motion to Confirm Arbitration Award (and only that Motion) is wholly improper and lacks even a good faith basis. See Fed. R. Civ. P. 11. Dr. Murtagh attempts his removal despite the fact that (1) he is the plaintiff in the underlying State Court litigation, was the plaintiff in the arbitration at issue, and originally chose the State Court as his selected forum;
1

For the convenience of the Court and clerk, Emory has used the same case caption as reflected in both the State Court action and the docket sheet for this matter and have ignored Dr. Murtaghs tortured efforts to re-cast the parties.

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(2) he allowed the deadline for removal to pass years ago; (3) he allegedly moved to Arkansas only recently, years after the litigation and arbitration were initiated; and (4) there is not a single federal question sufficient to support removal. As a result, this matter should be remanded to the State Court that has been dealing with Dr. Murtagh and his bad faith, abusive litigation tactics for nearly five years.2 The Court should also order both Dr. Murtagh and his counsel to pay Emorys attorneys fees and costs incurred as a result of the improper removal pursuant to 28 U.S.C. 1447(c) and 1927. FACTUAL AND PROCEDURAL BACKGROUND I. Dr. Murtaghs Claims and Emorys Counterclaims Before The State Court and the Arbitrator On November 30, 2004, Dr. Murtagh filed his Complaint in this action in the State Court alleging a number of claims against Emory, the Fulton-DeKalb Hospital Authority, and other defendants, including claims for breach of the parties 2001 Settlement Agreement, defamation, and other state law claims. Dr. Murtagh did not assert any federal law claim. (See Murtaghs Complaint, attached as Ex. A).

As detailed further below, Dr. Murtagh has been held in contempt twice by the State Court and sanctioned once by the Arbitrator. 2

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Emory filed an Answer and Counterclaims and later amended its Counterclaims against Dr. Murtagh. (See Emorys Answer and Amended

Counterclaims, attached as Ex. B). Emorys Counterclaims related primarily to Dr. Murtaghs breach of the confidentiality and non-disparagement provisions of the 2001 Settlement Agreement,3 but also included claims for defamation and other state law torts. Emory did not assert any federal law counterclaims. In particular, Emorys Counterclaims sought to enjoin a number of breaches of the 2001 Settlement Agreement and continued defamation by Dr. Murtagh, including: A series of emails that Dr. Murtagh had sent in the names of Emory employees and other third parties improperly alleging that Emory was engaged in criminal activity, suppression of evidence, and witness tampering.4 (See Emorys Answer and Amended Counterclaims,
3

Emory agreed to the 2001 Settlement Agreement to (1) resolve more than a dozen meritless lawsuits Dr. Murtagh previously filed against Emory, its employees, and others alleging everything from Irish ancestry discrimination to misuse of grant money; (2) buy out Dr. Murtaghs tenure; and (3) put an end to Dr. Murtaghs campaign of defamation against Emory and its employees. Dr. Murtagh was suffering from some significant psychiatric issues that contributed to his bizarre behavior and made it difficult for Emory to defend itself without disclosing his psychiatric problems, something it did not wish to do. Therefore, Emory insisted that the Settlement Agreement contain strong confidentiality, antidisparagement, and non-publication requirements. (See Emorys Answer and Amended Counterclaims, 3; 20-30).
4

Upon learning that Dr. Murtagh had engaged in this e-mail fraud, his fourth set of attorneys ended their relationship with Dr. Murtagh. Dr. Murtagh is currently on his sixth set of attorneys in this litigation matter alone. 3

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33-40, Exs. 7-7U, 8-10, 15). The emails were sent to Emory University employees, as well as the New York Times. A number of articles and documents posted by Dr. Murtagh on the Internet which improperly suggest that Emory officials and attorneys had engaged in criminal conduct, poisoned him, suppressed alleged evidence, and tampered with witnesses. (See id., 41-57, Exs. 6-7; 11-14). Speeches and proposed books by Dr. Murtagh that defamed Emory and its employees in violation of the Settlement Agreement. (See id., 51; 51-57, Exs. 6 (6E-6F, 6I - 6L); 12). When Dr. Murtaghs tortious misconduct still did not stop, Emory was forced in June 2005 to move the State Court for an interlocutory injunction. (See generally Memorandum of Law in Support of Emory Universitys Motion for Interlocutory Injunction, attached as Ex. C). The State Court granted that Motion with the parties consent and entered a Temporary Interlocutory Injunction against Dr. Murtagh. (See Injunction, attached as Ex. D).5 Emory also moved to compel arbitration of all claims other than Emorys counterclaims for injunctive relief, as provided for in the parties 2001 Settlement
5

The Temporary Interlocutory Injunction prohibits Dr. Murtagh from, among other things, publishing any defamatory or disparaging statements regarding Emory University to the public . . . or to Emory University employees . . .; making any unsolicited communication with any current employee of Emory University . . .; encouraging others to publish defamatory or false statements regarding Emory University . . .; using fictitious names or names of other persons in communicating with or about Emory University . . . . (See Injunction at 1-4, attached as Ex. D). 4

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Agreement. The State Court granted Emorys motion and compelled all claims and counterclaims, except Emorys counterclaims for injunctive relief, into arbitration. The parties selected Richard Deane as the Arbitrator and proceeded with arbitration. In arbitration, Dr. Murtagh pursued the claims against Emory that he originally asserted in his State Court Complaint.6 Emory likewise pursued in arbitration its counterclaims for damages. Emorys counterclaims for damages in arbitration included the same counterclaims asserted in the State Court for injunctive relief -- only the relief requested was different. II. Dr. Murtagh Is Held in Contempt Twice by the State Court and His Claims Are Dismissed with Prejudice Because of Dr. Murtaghs continued breaches of the Settlement Agreement and tortious misconduct, the State Court remained involved in the case to enforce its Temporary Interlocutory Injunction. The State Court first held Dr. Murtagh in contempt on December 20, 2005 for willfully violating the Temporary Interlocutory Injunction. (See 12/20/05 Civil Contempt Order, attached as Ex. E). Specifically, Emory became aware of defamatory articles published on the Internet
6

Although Dr. Murtagh purported to add claims for False Claim Act retaliation and RICO to his list of claims in arbitration, he was still the plaintiff in arbitration. (See Ex. B to Dr. Murtaghs Notice of Removal). Thus, the alleged addition of these federal claims by Dr. Murtagh does not provide any basis for removal. Emory never asserted a federal law claim in the State Court or in arbitration. 5

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by Dr. Murtagh. Dr. Murtagh claimed under oath that he had nothing to do with the articles, but Dr. Murtagh had, in fact, written the articles, submitted them for publication, and then lied under oath when asked about them.7 (See 6/23/08 Decision of the Arbitrator at 9-11, attached as Ex. F). The State Court specifically found that Dr. Murtagh had repeatedly, knowingly, and willfully disregarded the Temporary Interlocutory Injunction. (See 12/20/05 Civil Contempt Hrg Tr.

attached as Ex. G, at 64-65). Although the State Court stopped short of finding that Dr. Murtagh had perjured himself at that time, Arbitrator Deane later specifically found that Dr. Murtagh perjured himself with respect to his involvement in the defamatory articles. (See 6/23/08 Decision of Arbitrator, Ex. F, at 9-11). The arbitrator based this decision on additional evidence Emory later obtained through third-party discovery. After arbitrating for more than a year, documents obtained in 2007 showed that Dr. Murtagh had again violated the Temporary Interlocutory Injunction (and the State Courts first Contempt Order). In particular, Dr. Murtagh had again written defamatory articles about Emory and forwarded them to a third party to
7

In furtherance of his perjury, Dr. Murtagh refused to produce the incriminating documents during discovery in the arbitration, forcing Emory to go through the expense of obtaining the documents from a third party whose honesty, unlike Dr. Murtaghs, has not been called into question. 6

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publish on the Internet. (See 6/23/08 Decision of Arbitrator, Ex. F, at 7). The State Court found that Dr. Murtagh had again knowingly and willfully violated its Temporary Interlocutory Injunction and had also violated the December 20, 2005 Contempt Order. (See 10/3/07 Contempt Order, attached as Ex. H). As a result, the State Court ordered that: (1) Dr. Murtaghs claims in this action, including all claims asserted in Dr. Murtaghs Complaint, his Amended Complaint, and in the arbitration pending before Arbitrator Richard Deane, are hereby dismissed with prejudice; Dr. Murtagh is permanently enjoined from pursuing all claims asserted in this action, including those asserted in his Complaint, his Amended Complaint, and in the arbitration pending before Arbitrator Richard Deane, in any forum; Emory is awarded its attorneys fees and costs incurred in (a) defending against Dr. Murtaghs claims asserted in his Complaint, Amended Complaint, and/or in arbitration; and (b) trying to put an end to Dr. Murtaghs violations of the parties 2001 Settlement Agreement, the Courts Temporary Interlocutory Injunction, and the Courts Civil Contempt Order; and Dr. Murtagh is to pay Emory an additional $15,000.00 for his violations of the Courts Civil Contempt Order.

(2)

(3)

(4)

(See id.). The Court also directed Emory to file evidence of the fees and costs to which it was entitled under the Contempt Order. Emorys fee petition was filed on October 19, 2007 and is still pending in the State Court.

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III.

Dr. Murtagh Is Also Sanctioned By The Arbitrator Throughout the arbitration, Dr. Murtagh withheld material evidence from

discovery, raised baseless privilege claims, and engaged in other bad faith conduct. As a result, Emory moved to compel discovery and the Arbitrator granted that motion. When it became clear that Dr. Murtagh was still not complying with his discovery obligation, Emory moved for sanctions. On June 23, 2008, Arbitrator Deane granted that motion and held that [g]iven Dr. Murtaghs repeated, willful violation of the Arbitrators December 12, 2005 Order commanding production of documents responsive to Emorys Requests documents central to the claims and defenses at issue in the Arbitration; given Dr. Murtaghs perjury in discovery in the arbitration; and given Dr. Murtaghs violation of the court order in related litigation, there is a clear pattern of delay and willful conduct by Dr. Murtagh. (6/23/08 Decision of the Arbitrator, Ex. F, at 13 n.2). Specifically, Arbitrator Deane found that Dr. Murtagh knowingly and intentionally withheld documents that he had been ordered to produce in the arbitration. (Id. at 9-11). He also found that Dr. Murtagh had committed perjury at least twice and likely altered documents before producing them to Emory. (Id.)

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Accordingly, the Arbitrator ordered that: (1) Dr. Murtaghs claims in Arbitration, if any remain, are dismissed; (2) Dr. Murtaghs defenses to the Arbitration, including defenses to Emorys Amended Counterclaims, be stricken, and a decision of default on all claims against him entered; and (3) Dr. Murtagh must pay certain costs and expenses, including attorneys fees, relating to Emorys motion to compel, the Discovery Order, and Emorys motion for sanctions. (See id. at 13-14). IV. The Arbitrator Issues A Final Judgment and Award In Emorys Favor On February 4, 2009, Arbitrator Deane issued a Final Judgment and Award finding in favor of Emory on all claims in this Arbitration and against Dr. Murtagh on all claims in this Arbitration. (See Arbitrators 2/4/09 Final Judgment and Award at 1, attached as Exhibit I). Relevant findings of fact and conclusions of law of the Arbitrator include the following: Dr. Murtagh withheld from Emory a number of emails [sent by Dr. Murtagh] containing allegations against Emory of violating student civil rights and accusing Emory faculty of involvement in criminal activity. (2/4/09 Decision of the Arbitrator, attached as Exhibit J, at 13). Emory has won on all counts against Dr. Murtagh by default, including [its] claims for breach of contract. (Id.). Dr. Murtagh not only disparaged Emory, he did so by impersonating an Emory employee through a fabricated email address[Dr.

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Murtaghs emails] accuse Emory of not only witness tampering but of assaulting a witness as a means of witness tampering. (Id. at 17-18). Emory has presented sufficient evidence to find that Dr. Murtagh has acted in bad faith in his performance under the Settlement Agreement. (Id. at 17). As a result of his factual findings and conclusions of law, Arbitrator Deane determined that Emory is entitled to $661,701.06 in damages, fees, and expenses. (See Ex. I at 1-2). On February 17, 2009, Emory filed with the State Court its Motion to Confirm the Arbitrators Final Judgment and Award pursuant to the Federal Arbitration Act. (See Emorys Motion to Confirm, attached as Ex. A to Dr. Murtaghs Notice of Removal). Emory also filed a Motion for Final Judgment, Award of Fees Pursuant to the State Courts October 3, 2007 Contempt Order, and Permanent Injunctive Relief. Rather than respond to Emorys motions, on March 19, 2009, Dr. Murtagh improperly and vexatiously filed a Notice of Removal of only Emorys Motion to Confirm the Arbitrators Final Judgment and Award. [See Doc. No. 1]. Emorys Motion for Final Judgment, Award of Fees and Expenses, and Permanent Injunctive Relief remains pending in the State Court.

10

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ARGUMENT AND CITATION OF AUTHORITIES Removal is purely a statutory right, and the court should strictly construe all statutes in favor of state court jurisdiction. Premier Holiday Intl, Inc. v. Actrade Capital, Inc., 105 F. Supp. 2d 1336, 1338 (N.D. Ga. 2000); see also Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994) (stating that removal statutes are construed narrowly; where plaintiff and defendant clash about jurisdiction, uncertainties are resolved in favor of remand). Plaintiff Murtagh bears the burden of proving by a preponderance of the evidence that removal is proper and that this Court has subject matter jurisdiction. Friedman v. New York Life Ins. Co., 410 F.3d 1350, 1353 (11th Cir. 2005). Dr. Murtagh has not and cannot carry this burden. In fact, the attempted removal is so lacking in merit that it could not have been made for any proper purpose and both Dr. Murtagh and his counsel should be sanctioned under 28 U.S.C. 1927. I. Dr. Murtagh Cannot Remove Because He Is the Plaintiff Dr. Murtagh is the plaintiff in both the State Court litigation and the arbitration and, therefore, he cannot remove. 28 U.S.C. 1441(a) (providing that any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants) (emphasis added); see also Escambia County Bd. of Ed. v. Benton,

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358 F. Supp. 2d 1112, 1117 (S.D. Ala. 2005) (holding that only defendants can remove actions to federal court); OPNAD Fund, Inc. v. Watson, 863 F. Supp. 328, 331 (S.D. Miss. 1994) ([O]n the statutes face, the rule that only the defendant may remove is unambiguous.). Plaintiff Murtagh chose to first file in the State Court. Thus, he may not now remove his own lawsuit or any portion thereof. The purpose of restricting the right of removal to the defendant is to restrict removal to the party who had no choice in selection of the forum, generally the defendant. Scott v. Communications Servs., Inc., 762 F. Sup. 147, 150 (S.D. Tex. 1991); see also Benton, 358 F. Supp. 2d at 1119 (allowing plaintiffs to remove would be to subvert the purposes underlying the statute restricting removal to defendants). In the four years since Plaintiff filed his Complaint, the State Court has held him in contempt twice, dismissed his claims, ordered him to pay Emorys fees, and fined him $15,000. Plaintiffs desire to use removal as an opportunity to go judgeshopping is completely understandable. But no federal statute authorizes removal by a plaintiff who later regrets his choice of forum. Recognizing that only defendants may remove, Plaintiff Murtaghs Notice of Removal attempts to re-cast Dr. Murtagh as defendant. Dr. Murtagh, however, sued Emory, and Emory asserted counterclaims. Thus, Dr. Murtagh is the plaintiff, 12

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and Emory is the defendant.

See Benton, 358 F. Supp. 2d at 1117-18

(Notwithstanding the Boards creative semantics arguments, it is clear to the undersigned that a party aggrieved which decides to, and does, bring a civil action is necessarily a plaintiff.). Dr. Murtagh does not become a defendant just because hes currently on the defensive. Indeed, Plaintiff Murtagh is not transformed into a defendant even though his claims have been dismissed and all that remains are Emorys counterclaims.8 Scott v. Communications Servs., Inc., 762 F. Supp. 147 (S.D. Tex. 1991) (holding that a plaintiff may not remove, even when the only claims remaining in the litigation are the defendants counterclaims against that plaintiff). Moreover, although the question of who is the plaintiff and who is the defendant for purposes of removal is a matter of federal law, it is important to note that the State Court repeatedly referred to Dr. Murtagh as the plaintiff. (See 12/20/05 Contempt Order at 1, Ex. E, 10/3/07 Contempt Order at 1, Ex. H). Indeed, even Dr. Murtagh referred to himself as Plaintiff, James J. Murtagh, M.D. in his

Notably, the Arbitrator dismissed all of Plaintiff Murtaghs claims against Emory in the award that Emory now seeks to confirm. Thus, the State Court action confirming that award necessarily addresses the parties in their Murtagh v. Emory stance. There is no reason for this Court to realign the parties for purposes of removal. 13

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Motion for Expansion of Time, which was filed in this Court on the same day as his Notice of Removal. [Doc. No. 4 at 1].9 II. The Deadline for Removal Has Long Since Passed In addition to the obvious and fatal defect that Dr. Murtagh is a plaintiff, the time for removal has long since passed. Under 28 U.S.C. 1446(b), a defendant has only thirty days to remove following receipt of the initial pleading or other paper that makes removal possible. The initial pleading was filed November 30, 2004, more than four years before Plaintiff attempted removal. And, to the extent Emorys Answer and Amended Counterclaims allowed Dr. Murtagh to remove, he received that document in June 2005, more than 3 years ago. See Scott, 762 F. Supp. at 152 (noting that even if a plaintiff could remove based on counterclaims, time for removal runs from the filing of the counterclaims). Recognizing his timing problem, Plaintiff Murtagh argues that Emorys Motion to Confirm the Arbitration Award, filed in the same State Court and using
9

Dr. Murtagh later withdrew that Motion based on his unsupported assertion that he is not required to respond to Emorys Motion to Confirm the Arbitrators Final Judgment and Award until ten days after Emory files a separate document entitled memorandum of law in support of its motion with this Court. [Doc. No. 4 at 1]. Emorys Motion to Confirm the Arbitrators Final Judgment and Award, however, complies with the Local Rules of this Court as it includes a supporting memorandum of law and citations to legal authority. Emory has no obligation to refile its motion or to file separately the memorandum of law from the motion, and Dr. Murtaghs time to respond continues to run. 14

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the same case number as Plaintiffs original Complaint, is somehow a completely new lawsuit that restarts the thirty-day removal period.10 This argument has been rejected by almost every court to consider it. See generally 14C Charles A. Wright, et al., Federal Practice and Procedure 3732 at 348 (3d ed. 1998) (If the defendant waits to file the notice of removal with the federal court until the plaintiff has moved to vacate or confirm the arbitration award made after the initial state court proceeding, most federal courts have ruled that the later motion is part of the same arbitration[-related state court] proceeding.); see also CAP of MB, Inc. v. Champion Rock Prods., Inc., 111 F. Supp. 2d 728 (D.S.C. 2000) (holding that filling of motion to confirm or vacate an arbitration award does not start a new thirty day period for removal); Lesser Towers, Inc. v. Roscoe-Ajax Constr. Co., 258 F. Supp. 1005, 1008 (S.D. Cal. 1966) (noting the general rule that the time for removal of the supervision of an arbitration proceeding from the State to the Federal courts begins to run from the date of the first court action relating to the arbitration).
10

Throughout this matter, the State Court retained jurisdiction over Defendant Emorys counterclaims for injunctive relief and over the enforcement of its Temporary Interlocutory Injunction and Contempt Orders. Indeed, Plaintiff Murtagh himself has treated the State Court action governing the arbitration as continuous, filing no fewer than six motions with the State Court during the pendency of the arbitration. At no time did the original case stop and a new case start such as would allow Plaintiff Murtagh another shot at the thirty-day removal window. 15

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Thus, the Court should remand this matter because Plaintiff Murtagh has waited for over four years to file his notice of removal, well beyond the thirty days allowed under 28 U.S.C. 1446(b). III. Remand Is Required Because There Is No Subject Matter Jurisdiction In This Court It is an absolute prerequisite for removal that the federal court would have subject matter jurisdiction over the controversy. 28 U.S.C. 1441. However, Plaintiff Murtagh can establish neither diversity jurisdiction under 28 U.S.C. 1332 nor federal question jurisdiction under 28 U.S.C. 1331. A. There Is No Diversity Jurisdiction

No party can move in the middle of the case and manufacture (or destroy) diversity. Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 571 (2004) (holding that the rule for the last 185 years has been to measure[] all challenges to subject-matter jurisdiction premised upon diversity of citizenship against the state of facts that existed at the time of filing the state court complaint). Here, the action commenced in 2004 when Dr. Murtagh filed his Complaint alleging that he was a Georgia resident. (Compl. 2 (The Plaintiff, James J. Murtagh, M.D., is natural [sic] person residing at 511 Calibre Woods, Atlanta, Dekalb County, Georgia.), attached as Ex. A).

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In support of removal, Dr. Murtagh now claims that he is an Arkansas resident,11 making him diverse from Emory. (Notice of Removal [Doc. No. 1] at 3 (Murtagh is a citizen of Arkansas.)). Dr. Murtagh claims he relocate[d] away from Georgia after he filed his Complaint in 2004. (Notice of Removal [Doc. No. 1] at 3). Even if that were true, it is irrelevant. See Grupo Dataflux, 541 U.S. at 570-71 (This time of filing rule is hornbook law (quite literally) taught to firstyear law students in any basic course on federal civil procedure.). Plaintiff Murtagh was a Georgia resident for the first several years of this litigation. He now claims to have become an Arkansas resident. This change in residence, if it is even to be believed, does not create diversity jurisdiction because it occurred after the litigation was under way. Id. This Court should therefore remand the matter.

11

Of course, Dr. Murtagh has shown that he is willing to say almost anything under oath or otherwise if it furthers his interests. (See 10/5/07 Contempt Hrg Tr. at 8:21-9:1, attached as Exhibit K (State Court Judge noted that Dr. Murtagh has been so totally discredited . . . [and] lied so many times that I dont know what you could rely upon . . .); see also 6/23/08 Decision of Arbitrator, Ex. F at 9-11 (Arbitrator Deane found that Dr. Murtagh committed perjury). Given his track record of lying under oath, Dr. Murtaghs unsworn statement in his notice of removal hardly carries his burden of showing diversity by a preponderance of the evidence. Friedman v. New York Life Ins. Co., 410 F.3d 1350, 1353 (11th Cir. 2005). 17

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B.

There Is No Federal Question Jurisdiction 1. The FAA Does Not Create Federal Question Jurisdiction

In the absence of diversity jurisdiction, Plaintiff Murtagh must show that this Court would have federal question jurisdiction under 1331. To the extent

Plaintiff Murtagh relies on the Federal Arbitration Act to provide that jurisdiction, his argument must fail. See Carter v. Health Net of Cal., Inc., 374 F.3d 830, 833 (9th Cir. 2004) (It is well-established that even when a petition is brought under the Federal Arbitration Act (FAA), a petitioner seeking to confirm or vacate an arbitration award in federal court must establish an independent basis for federal jurisdiction.); see also Moses H. Cone Meml Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 25 n.32 (1983); CAP of MB, Inc. v. Champion Rock Prods., Inc., 111 F. Supp. 2d 728, 734 (D.S.C. 2000) (noting that even a case falling under the auspices of the Federal Arbitration Act . . . must meet independent grounds for removal jurisdiction). 2. Claims for Attorneys Fees Do Not Create Federal Question Jurisdiction

Plaintiff Murtagh appears to argue that federal question jurisdiction exists because Emory seeks to confirm an arbitration award that, in part, grants its attorneys fees. (See Notice of Removal at 2-3, [Doc. No. 1]). However, the award of fees was granted pursuant to Georgia, not federal law. (See 6/23/08 18

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Decision of Arbitrator, Ex. F at 1-2). Therefore, confirmation of the attorneys fee award has absolutely nothing to do with federal law and cannot support federal jurisdiction. But even if the ordered attorneys fees were based on federal law (such as Rule 11 and/or 37), it would not support federal question jurisdiction. A request for attorneys fees cannot be a basis for federal jurisdiction. Carter v. Health Net of Calif., Inc., 374 F.3d 830, 834 (9th Cir. 2004); see also In re HotHed, Inc., 477 F.3d 320 (5th Cir. 2007) (holding that attorneys fees cannot be basis for federal question jurisdiction and that any contrary holding would allow the proverbial tail to wag the dog). Plaintiff Murtaghs argument for removal based on Emorys motion to confirm an arbitration award of attorneys fees must therefore fail. 3. Dr. Murtaghs False Claims Act Allegation Does Not Support Federal Question Jurisdiction

To the extent Dr. Murtagh contends that his alleged False Claims Act (FCA) retaliation claim supports removal jurisdiction, he forgets a simple premise of federal jurisdiction a party cannot base removal on one of his own claims. Dr. Murtagh is either the Plaintiff or Defendant. If he is the Plaintiff, his own FCA claim does not allow removal because only defendants may remove. See Escambia County Bd. of Ed. v. Benton, 358 F. Supp. 2d 1112, 1117 (S.D. Ala. 2005) (holding that only defendants can remove actions to federal court). If he is 19

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the defendant (as he now contends), then his FCA claim must necessarily be a counterclaim, and cannot serve as the basis for removal. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 109 (1941) (holding that removal by a plaintiff/counter-defendant is improper); see also OPNAD Fund, Inc. v. Watson, 863 F. Supp. 328, 332 (S.D. Miss. 1994) (No court since 1938, however, has held that the plaintiff may remove a case as counter-defendant, and the wellestablished rule is that the plaintiff, who chose the forum, is bound by that choice, and may not remove the case. (quoting Scott, 762 F. Supp. at 150). Thus, Dr. Murtaghs own FCA claim cannot serve as the basis for his removal of this matter. 4. Plaintiff Cannot Manufacture Federal Question Jurisdiction by Arguing the Arbitrator Manifestly Disregarded Federal Law

Plaintiff Murtaghs last ditch attempt to manufacture federal question jurisdiction is to argue that the arbitrator manifestly disregarded federal law. First and foremost, Plaintiff Murtagh has not even filed his motion to vacate the arbitration award. It would be premature to find federal question jurisdiction based on an anticipated federal question raised by a motion that has not even been filed. See Lowery v. Ala. Power Co., 483 F.3d 1184, 1213 (11th Cir. 2007) (The absence of factual allegations pertinent to the existence of jurisdiction is

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dispositive and, in such absence, the existence of jurisdiction should not be divined by looking to the stars.). Second, Plaintiff Murtaghs dispute with the Arbitrator is not that he manifestly disregarded federal law; it is that the Arbitrators choice of Georgia law was somehow improper. But the choice of law issue does not present a federal question at all application of Georgia law was a matter agreed to by the parties in the Scheduling Order. (See 6/23/08 Decision of Arbitrator, Ex. F at 1-2). Whether the parties agreed to Georgia law and whether the Scheduling Order properly controls the applicable law in an arbitration are questions that do not implicate federal law. CONCLUSION Dr. Murtagh cannot show that he timely removed, that there is any kind of subject matter jurisdiction in this Court, or that he is even entitled to remove as a plaintiff in the first place. The Court should therefore remand this action and grant Defendant Emory its fees and costs incurred in preparing this motion to remand, as well as such other relief as the Court deems proper. 28 U.S.C. 1447(c) (An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.). Emory

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also asks that the Court order Dr. Murtaghs counsel and Dr. Murtagh to jointly and severally pay its attorneys fees and costs pursuant to 28 U.S.C. 1927. Respectfully submitted, this 13th day of April, 2009.

s/Todd D. Wozniak Todd D. Wozniak Georgia Bar No. 777275 Lindsey Camp Edelmann Georgia Bar No. 141479 GREENBERG TRAURIG LLP 3290 Northside Parkway, Suite 400 Atlanta, Georgia 30327 Telephone: 678-553-7326 Facsimile: 678-553-7327 Attorneys for Defendants Emory University and Emory Healthcare, Inc.

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CERTIFICATE OF COMPLIANCE WITH L.R. 5.1B I HEREBY CERTIFY that the foregoing motion was prepared in Times New Roman, 14-point font, as approved by Local Rule 5.1B. s/Todd D. Wozniak Todd D. Wozniak Georgia Bar No. 777275

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CERTIFICATE OF SERVICE This is to certify that I have served a true and correct copy of the foregoing EMORY UNIVERSITYS AND EMORY HEALTHCARE, INC.S MOTION TO REMAND AND MEMORANDUM IN SUPPORT THEREOF with the Clerk of the Court using the CM/ECF system which will automatically send e-mail notification of such filing to the following attorneys of record:

Mick G. Harrison, Esq. The Caldwell Center 323 S. Walnut Street Bloomington, Indiana 47401 Email: mickharrisonesq@earthlink.net Glenn L. Goodhart, Esq. 6065 Roswell Road, Suite 410 Sandy Springs, Georgia 30328 Email: glenn@publicprotectionlawyer.com This 13th day of April, 2009. s/Todd D. Wozniak Todd D. Wozniak