Case 1:09-cv-00752-HTW Document 1 Filed 03/19/09 Page 1 of 6

FILED ~~ CLERKS iS OFFICE

UNITED STATES DISTRICT COURT

MAR 19 2009

NORTHERN DISTRICT OF GE ORGIA

~ ~ EN, lark

EMORY UNIVERSITY, and EMORY

HEALTHCARE, INC.,
Plaintiffs,
V.

Case No. :

752

JAMES J. MURTAGH, M.D .,

Defendant .
DEFENDANT'S N OTICE O F REMOVAL OF
MOTION TO C ONFIRM ARBITRATION AWARD
Defendant files this notice of removal under 28 U .S .C. 1446(a).
A. Introduction

The parties functioning as Plaintiffs in this matter (movants for a motion to

confine an arbitration award) are Emory University and Emory Healthcare, Inc .
(collectively, "Emory") . The party functioning as Defendant in this same matter is
Dr. James J. Murtagh who opposes the motion to confirm . On February 17, 2009,
Emory filed a motion seeking to confirm an arbitration award against the
Defendant in the Superior Court of Fulton County Georgia . Although Defendant
has not been served (as in service of a complaint or new action) with a copy of the
Emory's motion seeking to confirm the arbitration award, Emory did mail a copy
of the motion to Defendant's counsel on February 17, 2009 . Defendant files this
notice of removal within the 30-day time period required by 28 U .S.C. 1446(b).
Bd. of Regents of Univ. of Tex. Sys. v. Nippon Tel. & Tel. Corp ., 478 F .3d 274, 278
(5th Cir. 2007).

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As Emory initiated the arbitration and has now filed the motion seeking to
confirm the arbitration award in Superior Court, Emory University and Emory
Healthcare, Inc . are the plaintiffs in this piece of the litigation between the parties .
Emory, over the objections of Dr . Murtagh, moved to compel and has pursued
arbitration of issues that Dr . Murtagh believes and has asserted are not within the
scope of the parties' arbitration and settlement agreement and for which Emory has
waived its right to arbitrate . Thus, the "mainspring" of the proceedings has been
driven by Emory, making Dr . Murtagh a proper defendant for removal purposes .
Mason City & Ft. D.R. Co. v. Boynton, 204 U.S . 570, 580 (1907) ; International Tin
Council v . Amalgamet Inc., 645 F. Supp . 879 (S .D.N.Y. 1986).

B. Basis for Removal and Jurisd iction

Removal is proper because :
( 1) Defendant Murtagh's right to relief depends on the interpretation of
substantial questions of federal law . Baltin v. Alaron Trading Corp . , 128 F .3d
1466, 1469 - 1472 (11`h Cir. 1997) . Those federal questions include determination
of whether the Arb itrator engaged in misconduct or prejudicial procedural error in
dismissing Defendant Murtagh's retaliation claim under the Federal False Cla ims
Act, 31 U.S .C . 3730(h), an underlying federal claim in this arb itration, as well as
federal questions regarding the interpretation and application of Federal Rules of
Civil Procedure, Rules 1. l and 3 7, which questions are at the heart o f the arbitration
award sought to be confirmed by Emory .
(2)

The arbitrator engaged i n misconduct in blatantly ignoring and

refusing to apply applicable federal law and made a prejudicial procedural error
regarding federal law (i .e . demonstrated what has, in court decisions prior to 2008,

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been termed "manifest disregard" for federal law) in his decision . The arbitration
record reflects that the arbitrator recognized the applicable federal law regarding
federal Rule 11 and Rule 37, and then ignored it . Carter v. Health Net, 374 F .3d
$30, 836-38 (9' Cir. 2004) . For example, the arbitrator refused to award fees and
costs to Dr . Murtagh, or even analyze Dr . Murtagh's entitlement to such fees as a
prevailing opponent of a Rule 11 motion, despite the Arbitrator's
acknowledgement of the law and requirements under Fed .R.Civ .P., Rule 11 that
required him to do so . Further, the Arbitrator also blatantly misapplied the federal
law interpreting Fed .R.Civ .P., Rule 37 .

(3)

The claims at issue in the underlying arbitration that will also be

subject to Defendant Murtagh's forthcoming motion to vacate or modify, involve

one or more federal questions . 28 U.S .C . 1331, 1441(b) ; Grable & Sons Metal
Prods., Inc. v. Darue Engg & Mfg., 545 U.S . 3,08, 312, 125 S. Ct . 2363 , 2366
(2005) ; Broder v. Cablevision Sys. Corp., 418 F .3d 187, 194 (2d Cir . 2005); Peters
v. Union Pac. R. R., 80 F .3d 257, 260 (8th Cir. 1996) . More specifically , one of
Emory's claims for relief in the arbitration arose under Federal Rules of Civil
Procedure, Rule 1 1 . In additi on, Defendant Murtagh has a retaliation claim under
the federal False Claims Act (31 U. S .C . 3730(h)) that is at issue in the
arbitration .
(4)

There is complete diversity between the parties . 28 U.S .C . 1332(a) ;

Johnson v . Columbia Props. Anchorage, L.P., 437 F .3d 894, 899-900 (9th Cir .
2006) . The Emory Plaintiffs are citizens of Georgia . Defendant Murtagh is a
citizen of Arkansas . As a result of his job loss and the blacklisting and retaliation
alleged by Dr. Murtagh to have been engaged in by Emory, Dr . Murtagh has had to
relocate away from Georgia and is employed in temporary jobs that require

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considerable travel . He has an Arkansas driver's license and voter registration

card. In addition, Defendant Murtagh will file his 2008 taxes in Arkansas .' It is
clear from the arbitration award that the amount in controversy exceeds $75,000,
excluding interest and costs . 28 U.S .C . 1332(a) ; Andrews v. E.I. Du Pont De
Nemours & Co., 447 F .3d 510, 514-15 (7th Cir. 2006). The Emory Plaintiffs have
been improperly awarded in excess of $600,000 by the Arbitrator .
(5) The Emory Plaintiffs' motion to confirm the arbitration award is
brought pursuant to the Federal Arbitration Act . The settlement agreement of the
parties and the arbitration contract contained therein that is relied upon by Emory
as the basis for requiring arbitration of the current disputes provides that
confirmation of an award will be adjudicated in the United States District Court for
the Northern District of Georgia .

C. Venue and Procedure

Copies of all pleadings, process, orders, and other filings in the Emory Motion
to Confirm the Arbitration Award in state-court suit, the action sought to be
removed, are attached to this notice as required by 28 U .S.C. 1446(a) . Venue is
proper in this district under 28 U.S.C . 1441(a) because the state court where the
suit has been pending is located in this district and because this district is the
chosen venue in the parties' agreement .

1 In the near future, one of Mur tagh's temp orary assign ments may bring hi m to Georgia. However,
absent an offer o f a permanent position he will not become a citizen of Georgia . Presently, Dr . Murtagh
intends to ret urn to Arkansas after he co mp letes his next temporary assignments .

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Finally, Defendant Murtagh will promptly file a copy of this notice of removal
with the clerk of the state court where Emory's Motion to Confirm Arbitration
Award has been pending.
D. Conclusion
For these reasons, Defendant asks the court to remove the suit to the United
States District Court for the Northern District of Georgia .

Resp tfully submitte

x
Glenn L . Goodhart, Esq ., GA Bar # 300540
6065 ROSWELL RD NE STE 410
SANDY SPRINGS GA 30328
TEL . 404-255-3282

kcou
. Harrison, Esq .
{MickG
The Caldwell Center
323 S. Walnut Street
Bloomington, IN 47401
(812) 323-7274
mickharr isones earthl ink.net

J . CLAY YON CULOTTA

Culotta & Culotta LLP
432 E. Court Avenue
Jeffersonville , Indiana 47130
Telephone No . (812) 288-5141
Facsimile No . (812) 288-8305
Attorneys for Defendant
James J. Murtagh, M .D .

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CERTIFICATE OF SERVICE
This is to certify that I have served a copy of the foregoing NOT ICE OF
REMOVAL upon the Plaintiff herein, by mailing a copy thereof to the following
counsel of record, by first class mail, on this I 9t'' day of March, 2009 :
Todd D . Wozniak
Theodore B . Eichelberger
Lindsey Camp Edelmann
Alton & Bird LLP
GREENBERG TRAURIG LLP
One Atlantic Center
3920 Northside Parkway, Suite 400 1201 West Peachtree Street
Atlanta, GA 30327
Atlanta, GA 30309-3424

fih$L
d

L. Goodhart, Esq.

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