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EXHIBIT 6

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA JAMES J. MURTAGH, M.D., Movant, v. EMORY UNIVERSITY, et al., Respondents. ) ) ) ) ) ) ) ) )

CIVIL ACTION FILE NO. 1:09-CV-1186-RWS

EMORY UNIVERSITYS AND EMORY HEALTHCARE, INC.S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION Emory University and Emory Healthcare, Inc. (collectively, Emory) hereby move to dismiss this action for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). In addition, Emory seeks sanctions against Dr.

Murtaghs counsel, pursuant to 28 U.S.C. 1927, for filing this action when (1) Dr. Murtagh and his counsel have already attempted to remove Emorys Motion to Confirm the same Arbitrators Award that is at issue in this case; (2) that removed action is currently pending before Judge Ward in the Northern District of Georgia as James J. Murtagh, M.D v. Emory University and Emory Healthcare, Inc., Civil Action No. 1:09-cv-0752-HTW; (3) Emory has already filed a motion to remand that removed action for lack of subject matter jurisdiction; and (4) Dr. Murtaghs filing of this duplicative lawsuit, rather than file his Motion to Vacate in

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Civil Action No. 1:09-cv-0752-HTW or the State Court from which Dr. Murtagh attempted removal, is unnecessary, improper, and vexatious, and it serves no purpose but to drive up the costs of litigation. Dr. Murtagh and his counsel are continuing the pattern of abusive, bad faith litigation that led to Dr. Murtagh being sanctioned by the Arbitrator and being held in contempt twice by the State Court. This Court should not tolerate Dr. Murtaghs and his counsels abusive and vexatious tactics and should sanction Dr. Murtaghs counsel for their obvious efforts to judge shop. A Memorandum of Law in support of Emorys Motion To Dismiss For Lack of Subject Matter Jurisdiction is being filed concurrently herewith.1 For the

Courts convenience, a proposed order granting Emorys Motion To Dismiss For Lack Of Subject Matter Jurisdiction is attached hereto as Exhibit A.

Although this matter should be dismissed in its entirety, if any portion of this case is not dismissed on this Motion, Emory requests that this case be consolidated with the matter pending before Judge Ward, James J. Murtagh, M.D v. Emory University and Emory Healthcare, Inc., Civil Action No. 1:09-cv-0752-HTW, under Federal Rule of Civil Procedure 42(a) in light of the common (if not identical) questions of law and fact. Additionally, if this case is not dismissed in its entirety, Emory requests that it be granted an extension of ten (10) days from the date of the Courts Order on this Motion to Dismiss to submit its response to the substance of Dr. Murtaghs Motion to Vacate.
1

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Respectfully submitted this 11th day of May, 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 DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION 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: J. Clayton Culotta Culotta and Culotta LLP 432 E. Court Avenue Jeffersonville, Indiana 47130 Email: clay@culottalaw.com 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 11th day of May, 2009. s/Todd D. Wozniak Todd D. Wozniak Georgia Bar No. 777275

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA JAMES J. MURTAGH, M.D., Movant, v. EMORY UNIVERSITY, et al., Respondents. ) ) ) ) ) ) ) ) )

CIVIL ACTION FILE NO. 1:09-CV-1186-RWS

EMORY UNIVERSITYS AND EMORY HEALTHCARE, INC.S MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION This case is the latest saga in a dispute that dates back to November 2004, when Dr. Murtagh filed his Complaint in the Superior Court of Fulton County, Georgia (the State Court) against Emory University and Emory Healthcare, Inc. (collectively, Emory). 1 The State Court stayed the litigation of all damages claims asserted by either party in that case and compelled those claims into arbitration pursuant to the parties August 2001 Settlement Agreement. See State Courts 8/3/05 Order, attached as Ex. 1. By staying the litigation, the State Court

Actually, the initial dispute between the parties began in 1999. The parties, however, settled their original dispute through an August 2001 Settlement Agreement. Dr. Murtagh then filed the State Court lawsuit that led to the Arbitration Award at issue here in November 2004.
1

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retained jurisdiction over the parties claims. 2 The State Court also retained jurisdiction over Emorys counterclaims for injunctive relief as those claims were excepted from arbitration pursuant to the August 2001 Settlement Agreement. After several years of litigation and arbitration, the State Court twice held Dr. Murtagh in contempt of court. As part of its second Contempt Order, the State Court dismissed all of Dr. Murtaghs claims, including all of his claims in arbitration, with prejudice. See Courts 10/3/07 Contempt Order, attached as Ex. 2. The Arbitrator also later sanctioned Dr. Murtagh for his gross discovery and arbitration abuses, including his withholding and spoliation of material evidence and commission of perjury. See 6/23/08 Decision of the Arbitrator, attached as Ex. 3. As part of the Arbitrators sanctions, the Arbitrator also dismissed all of Dr. Murtaghs claims with prejudice (if any remained following the State Courts second Contempt Order). Id.

See, e.g., Balt. & O. Chi. Terminal R.R. v. Wis. Cent., 154 F.3d 404, 407 (7th Cir. 1998) ("The issuance of a stay, as distinct from an order of dismissal, implies that the proceeding in the court that issued the stay remains on the court's docket, albeit in a state of suspended animation. As long as the case remains before the court, the judge has the power to issue any order that is within his power to issue in a case of that sort. And that includes an order confirming an arbitration award whenthe agreement pursuant to which the parties' dispute (or some part of it) is being arbitrated is within the compass of the Federal Arbitration Act."). 2

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Following the Arbitrators Final Award, Emory filed its Motion to Confirm the Arbitration Award in the State Court because (1) it was proper to file the Motion to Confirm with the same court that stayed the litigation of the claims and compelled them into arbitration; and (2) there is no federal subject matter jurisdiction over this dispute. Apparently hoping for a fresh start with a court that was unfamiliar with his prior shenanigans, Dr. Murtagh attempted to remove to federal court only Emorys Motion to Confirm the Arbitration Award. That

removed action is currently pending in the Northern District of Georgia before Judge Ward as James J. Murtagh, M.D v. Emory University and Emory Healthcare, Inc., Civil Action No. 1:09-cv-0752-HTW, although Emory has moved to remand that action for lack of subject matter jurisdiction. See Emorys Motion to Remand and Memorandum In Support of Motion to Remand filed in Civil Action No. 1:09cv-0752-HTW, attached as Exhibit 4.3 Shortly after Emory filed its Motion to Remand with Judge Ward, Dr. Murtagh and his counsel engaged in additional judge shopping and filed this action for the sole purpose of seeking to vacate the Arbitration Award.

Because the exhibits to Emorys Motion to Remand are voluminous, Emory is not refiling those exhibits in this case. However, Emorys exhibits to its Motion to Remand can be found at Docket Entry 8 in Civil Action No. 1:09-cv-0752HTW.
3

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To make matters worse, in their zeal to establish federal court jurisdiction, Dr. Murtaghs counsel have misrepresented the applicable case law to the Court and failed to acknowledge other legal precedent that directly undermines a number of their key arguments. Because of this disregard for the judicial process, Emory is seeking not only to have this case dismissed, but also to have Dr. Murtaghs counsel sanctioned for filing it pursuant to 28 U.S.C. 1927. See Barnes v. Dalton, 158 F.3d 1212, 1214 (11th Cir. 1998) (affirming award of sanctions against plaintiffs counsel under 28 U.S.C. 1927); Malautea v. Suzuki Motor Co., 987 F.2d 1536, 1544 (11th Cir. 1993) (affirming sanctions against counsel). I. PROCEDURAL HISTORY A. Dr. Murtaghs Claims And Emorys Counterclaims Before The State Court And The Arbitrator

On November 30, 2004, Dr. Murtagh filed his Complaint 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. See Murtaghs State

Complaint, attached as an exhibit to his Motion to Vacate, Dkt. 1.

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Emory filed an Answer and Counterclaims and later amended its Counterclaims against Dr. Murtagh.4 Emorys Counterclaims related primarily to Dr. Murtaghs breach of the confidentiality and non-disparagement provisions of the parties August 2001 Settlement Agreement, 5 but also included claims for defamation and other state law torts. When Dr. Murtaghs tortious misconduct did not stop, Emory was forced in June 2005 to move the State Court for an interlocutory injunction. See

Memorandum of Law in Support of Emorys Motion for Interlocutory Injunction, attached as Ex. C to Emorys Motion to Remand filed in Civil Action No. 1:09-cv0752-HTW (the Motion to Remand). 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 to Emorys Motion to Remand.6

A copy of Emorys Answer and Amended Counterclaims is attached as Exhibit B to Emorys Motion to Remand filed in Civil Action No. 1:09-cv-0752HTW.
5

Emory agreed to the 2001 Settlement Agreement to (1) resolve more than a dozen meritless lawsuits and other claims Dr. Murtagh previously filed against Emory, its employees, and others making far-reaching allegations such as Irish ancestry discrimination; (2) buy out Dr. Murtaghs tenure; and (3) put an end to Dr. Murtaghs campaign of defamation against Emory and its employees. See Emorys Answer and Amended Counterclaims, 3, 20-30.
6

The Temporary Interlocutory Injunction prohibits Dr. Murtagh from, among other things, publishing any defamatory or disparaging statements regarding 5

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Emory also moved to compel arbitration of all claims other than Emorys counterclaims for injunctive relief, as provided for in the parties 2001 Settlement Agreement. The State Court granted Emorys motion and compelled all claims and counterclaims, except Emorys counterclaims for injunctive relief, into arbitration.7 See State Courts 8/3/05 Order compelling arbitration, attached as Ex. 1. In so doing, the Court expressly rejected Dr. Murtaghs argument that Emory had somehow waived its right to arbitrate. See id. The State Court also denied Dr. Murtaghs request to have the arbitration Order certified for immediate interlocutory review by the Georgia Court of Appeals. See State Courts 8/3/05 Order denying certification, attached hereto as Ex. 5. The parties ultimately selected former U.S. Attorney and former Magistrate Judge Richard Deane as the Arbitrator and proceeded with arbitration. In

arbitration, Dr. Murtagh asserted the same claims against Emory that he originally

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 to Emorys Motion to Remand.
7

The State Courts Order stayed all claims that were compelled into arbitration. It did not dismiss those claims for arbitration. See State Courts 8/3/05 Order, attached hereto as Ex. 1. 6

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asserted in his State Court Complaint, as well as certain other claims. 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. B. Dr. Murtagh Is Held In Contempt Twice By The State Court And His Claims Are Dismissed With Prejudice Under The State Courts Contempt Powers

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. 6. The State Court specifically found that Dr. Murtagh had repeatedly, knowingly, and willfully disregarded the Temporary Interlocutory Injunction.8 See 12/20/05 Civil Contempt Hrg Tr. at 64-65, attached as Ex. G to Motion to Remand. 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). As a result, the State Court again found

Arbitrator Deane also later found that Dr. Murtagh perjured himself in connection with his actions at issue in the contempt hearing. See 6/23/08 Decision of Arbitrator at 9-11, attached as Ex. 3. 7

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Dr. Murtagh in contempt and 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 State Courts 10/3/07 Contempt Order, attached as Ex. 2.9 C. Dr. Murtagh Is Also Sanctioned By The Arbitrator

Throughout the arbitration, Dr. Murtagh withheld material evidence from Emory in 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.

The State 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. 8

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When it became clear that Dr. Murtagh was still not complying with his discovery obligations, 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. See 6/23/08 Decision of the Arbitrator, Ex. 3, 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 and likely altered documents before producing them to Emory. Id. Accordingly, pursuant to O.C.G.A. 9-11-37 and 9-15-14(b), 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

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Discovery Order, and Emorys motion for sanctions. See id. at 13-14 (emphasis added). The Arbitrator sanctioned Dr. Murtagh pursuant to Georgia law because, among other reasons, the parties had expressly agreed to apply the Georgia Civil Practices Act to their arbitration discovery. See Consent Scheduling Order,

attached as Ex. 7; see also 2/4/09 Decision of Arbitrator at 5-6, attached as Ex. 8. D. 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 9. 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 Ex. 8, 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. 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). 10

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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. 9 at 1-2. E. Emory Files Its Motion to Confirm The Arbitrators Final Judgment And Award In State Court

On February 17, 2009, Emory filed with the State Court its Motion to Confirm the Arbitrators Final Judgment and Award. 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 with the State Court. Emory filed its Motion to Confirm with the State Court because (1) the State Courts August 3, 2005 Order compelling arbitration retained jurisdiction over this matter by staying and not dismissing the State Court action; and (2) there is no subject matter jurisdiction in federal court. F. Murtagh Improperly Removes Emorys Motion to Confirm the Arbitrators Final Judgment and Award from State Court

Rather than respond to Emorys motions, on March 19, 2009, Dr. Murtagh improperly filed a Notice of Removal of only Emorys Motion to Confirm the Arbitrators Final Judgment and Award. See Dr. Murtaghs Notice of Removal, without exhibits, attached as Ex. 10. He did not seek to remove any other aspect of the State Court proceeding. The erroneously removed action is currently pending

11

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in the Northern District of Georgia before Judge Ward as Civil Action No. 1:09cv-0752-HTW. Notably, Dr. Murtaghs Motion to Vacate in this case fails to mention Civil Action No. 1:09-cv-0752-HTW. On April 13, 2009, Emory filed its Motion to Remand in Civil Action No. Civil Action No. 1:09-cv-0752-HTW. See Ex. 4. In its Motion to Remand, Emory argues, among other things, that there is no federal subject matter jurisdiction and that the attempted removal lacked even a good faith basis. Not to be deterred, on May 4, 2009, Dr. Murtagh filed his Motion to Vacate with this Court as a new lawsuit. Dr. Murtaghs filing of this second, completely duplicative lawsuit lacks any good faith basis and could not have been filed for any proper purpose. As a result, Dr Murtaghs counsel should be sanctioned for filing it. See 28 U.S.C. 1927 (Any attorney. who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys fees reasonably incurred because of such conduct). II. ARGUMENT AND CITATION TO AUTHORITY A. Relevant Legal Standards

A Rule 12(b)(1) motion directly challenges the district court's subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1); Gilmore v. Day, 125 F. Supp. 2d 468, 470

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(M.D. Ala. 2000). A motion to dismiss for lack of subject matter jurisdiction may present either a facial or factual challenge to jurisdiction. Morrison v. Amway Corp., 323 F.3d 920, 925 n.5 (11th Cir. 2003). A "facial attack" is based solely on the pleadings and requires the court to assess whether the plaintiff has alleged a sufficient basis for subject matter jurisdiction. Id. A "factual attack" challenges "subject matter jurisdiction in fact, irrespective of the pleadings." Id. The burden of proof on a Rule 12(b)(1) motion is on the party averring jurisdiction (i.e., Dr. Murtagh). See Gilmore, 125 F. Supp. 2d at 471. Notably, because a federal court enjoys limited jurisdiction, "there is a presumption against the exercise of federal jurisdiction." Russell Corp. v. Am. Home Assur. Co., 264 F.3d 1040, 1050 (11th Cir. 2001). In any given case, a federal district court must have at least one of three types of subject matter jurisdiction: (1) jurisdiction under a specific statutory grant; (2) federal question jurisdiction pursuant to 28 U.S.C. 1331; or (3) diversity jurisdiction pursuant to 28 U.S.C. 1332. See Baltin v. Alaron Trading Corp., 128 F.3d 1466, 1469 (11th Cir. 1997). The Federal Arbitration Act (FAA) does not provide a specific grant of jurisdiction and does not confer federal question jurisdiction. Id. Thus, to avoid being summarily dismissed, Dr. Murtagh must

13

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establish that there is either diversity jurisdiction or federal question jurisdiction based on some ground other than the FAA. B. There Is No Diversity Jurisdiction In This Case

Diversity jurisdiction requires that (1) the parties be citizens of different states, and (2) that the amount in controversy exceeds $ 75,000, exclusive of costs. 28 U.S.C. 1332(a). Diversity is to be determined according to citizenship at the time the action is filed. Freeport-McMoran, Inc. V. KN Energy, Inc., 498 U.S. 426, 428 (1991). For purposes of diversity jurisdiction, an individual is considered to be a citizen of the state in which he is domiciled. Crowley v. Glaze, 710 F.2d 676, 678 (10th Cir. 1983). Domicile is the combination of physical presence in a place (residence) and the intent to remain there. Mississippi Choctaw v. Holyfield, 490 U.S. 30, 49 (1989). Here, Dr. Murtagh claims that he is an Arkansas resident despite the undisputed facts that (1) he was long time resident of Georgia until recently and resided in Georgia at the time he filed the State Court action; (2) he allegedly moved to Arkansas recently for a temporary position and, when that temporary position ended as expected, he returned to Georgia; (3) he currently is residing in Georgia and has been residing in Georgia since before he filed this action; and (4) although he hopes to find other employment outside of Georgia at some

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unspecified time in the future, he will continue living in Georgia until that day comes to pass. See Mot. to Vacate at 2; see also Murtagh State Court Complaint attached to Mot. to Vacate. Dr. Murtagh cannot establish diversity jurisdiction based on a prior, shortterm, temporary job assignment in Arkansas or his hope that some future job opportunity might arise outside of Georgia. First, as briefed more thoroughly in Emorys Motion to Remand, this case is not properly considered a new action, separate from the State Court action, and Dr. Murtaghs citizenship must be based on his residence at the time he filed his State Court Complaint in November 2004. See Ex. 4, Emorys Memo. In Support of Mot. to Remand at 14-16. Dr. Murtagh admits he was a citizen of Georgia at the time he filed that Complaint and that Emory is also a citizen of Georgia. See Complaint, attached to Motion to Vacate. Second, even if this could be considered a separate action from the State Court action, Dr. Murtagh admits he has continuously resided in Georgia since at least 2004, except for his temporary job assignment in Arkansas, and was residing in Georgia at the time he filed this case. See Mot. to Vacate at 1-2. Those facts disprove any (unsupported) assertion that he is a citizen of Arkansas. See, e.g., Mississippi Choctaw, 490 U.S. at 49 (physical presence in a place (residence) is an essential element of domicile and thus, citizenship); Bevilaqua v. Bernstein, 642 F.

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Supp. 1072, 1075 (S.D.N.Y. 1986) (plaintiff was not a citizen of Virginia despite residing there for 10 months as plaintiff had previously lived in New York and following commencement of suit returned to New York and his former employment in New York); Sattler v. Mowry, 167 F. Supp. 607, 608 (E.D. Pa. 1958) (court found that plaintiff was a resident of Pennsylvania, despite plaintiffs prior two year stay in Oregon and acquisition of an Oregon drivers license, in part, because plaintiff was domiciled in Pennsylvania prior to and after living in Oregon and was living in Pennsylvania at time he filed litigation); Slate v. Shell Oil Co., 444 F. Supp. 2d 1210, 1215 (S.D. Ala. 2006) (a party's place of residence is prima facie evidence of his domicile).10 In sum, Dr. Murtagh cannot meet his burden of establishing the existence of diversity jurisdiction. C. There Is No Federal Question Jurisdiction

Dr. Murtagh argues that federal question jurisdiction exists because (1) he allegedly asserted a federal False Claims Act retaliation claim in the arbitration

See also Freeman v. Northwest Acceptance Corp., 754 F.2d 553, 555 (5th Cir. 1985) (residence in fact is an essential element of domicile); Britton v. Scott, Case No. 96-14041-CIV-PAINE, 1996 U.S. Dist. LEXIS 22857, *3-4 (S.D. Fla. Sept. 27, 1996) (statements of intent are accorded minimal weight); Audi Performance & Racing, LLC v. Kasberger, 273 F. Supp.2d 1220, 1226 (M.D. Ala. 2003) (recognizing presumption that state of residence equates to domicile); Valentin v. Hosp. Bella Vista, 254 F.3d 358, 367 (1st Cir. 2001) (amorphous desire to relocate from one place to another at an indeterminate future date does not suffice to effect a change of domicile).
10

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(Mot. to Vacate 4); (2) the Arbitrator was not impartial and/or engaged in misconduct and therefore his decision is subject to challenge under the FAA (Mot. to Vacate 8-9, 13, 15, 21-22); (3) there allegedly are substantial questions of federal law to be decided (Mot. to Vacate 6, 7, 10, 16); and (4) the Arbitrator manifestly disregarded federal law. Mot. to Vacate 11-12, 14. None of these conclusory arguments support a finding of federal question jurisdiction. 1. Dr. Murtaghs False Claims Act Allegation In The Underlying Arbitration Does Not Support Federal Question Jurisdiction

Dr. Murtagh alleges that he asserted a whistleblower retaliation claim under the Federal False Claims Act in the underlying arbitration. Mot. to Vacate 4. Assuming this is true, it is well-established that federal question jurisdiction cannot be established based on the claims in the underlying arbitration. See, e.g., Kaplan v. Dean Witter Reynolds, Inc., 896 F. Supp. 1219, 1220 (S.D. Fla. 1995), affd, 129 F.3d 615 (11th Cir. 1997) (federal question jurisdiction cannot be found by looking beyond the petition to the underlying claims that were the subject of arbitration); Kasap v. Folger Nolan Fleming & Douglas, Inc., 166 F.3d 1243, 1247 (D.C. Cir. 1999) ( 10 does not create federal question jurisdiction, even when the underlying arbitration involves federal law); Minor v. Prudential Securities, Inc., 94 F.3d 1103, 1106 (7th Cir. 1996) (same). Thus, despite his

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arguments to the contrary, Dr. Murtaghs alleged federal law claim in arbitration does not support federal question jurisdiction with respect to his Motion to Vacate. 2. Dr. Murtaghs Claims Of Partiality Or Misconduct On The Part Of The Arbitrator Do Not Create Federal Question Jurisdiction

It is well-established that [a] motion to vacate on the grounds of fraud, corruption, undue means, evident partiality, and failure to consider pertinent and material evidence, does not require the resolution of any federal issue, let alone a substantial question of federal law.11 Baltin, 128 F.3d at 1472 (court affirmed district courts dismissal of motion to vacate on the grounds that the court lacked subject matter jurisdiction); see also Sodi v. Discover Fin. Servs., Case No. 040128 2004 U.S. Dist. LEXIS 24133, *6 (E.D. Pa. Nov. 30, 2004) (To the extent that the arbitration hearing was unfair, procured by corruption, fraud, or undue means, or evidenced partiality or corruption in the arbitrators, [plaintiff] may pursue such a claim under the FAA in a state court; motion to vacate dismissed for lack of subject matter jurisdiction, notwithstanding plaintiffs allegations of due process violations). That is true even if a party attempts to couch his claims of bias

11

This binding legal authority also makes clear that any claim by Dr. Murtagh that Emory engaged in fraud or obtained the Arbitration Award through undue means also fails to raise a federal question or create subject matter jurisdiction. See Baltin, 128 F.3d at 1472. 18

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or partiality as an implicit denial of due process. See id.; see also Giangrande v. Shearson Lehman/E.F. Hutton, 803 F. Supp. 464, 467, 474 (D. Mass. 1992) (court determined that it lacked subject matter jurisdiction to hear motion to vacate despite plaintiffs claims that the evident partiality of arbitrator violated their due process rights); Elmore v. Chicago & Ill. Midland Ry. Co., 782 F.2d 94, 96 (7th Cir. 1986) ("the fact that a private arbitrator denies the procedural safeguards that are encompassed by the term due process of law cannot give rise to a constitutional complaint"). Thus, Dr. Murtaghs (baseless) arguments that the Arbitrator engaged in prejudicial misconduct, demonstrated evident partiality, or denied him due process during the arbitration proceedings do not provide a basis for federal question jurisdiction in this case.12 See Mot. to Vacate 8-9, 13, 15, 21-22. 3. Dr. Murtaghs Motion To Vacate The Arbitration Award Does Not Raise Substantial Questions of Federal Law

Dr. Murtagh argues that the Arbitration Award raises substantial questions of federal law, including whether the State Court had the power to compel
12

Dr. Murtaghs reliance on Commonwealth Coatings Corp. v. Continental Casualty Co., 393 U.S. 145 (1968) to establish a basis for subject matter jurisdiction is misplaced as that case did not discuss subject matter jurisdiction and does not contradict subsequent legal authority which makes clear that a motion to vacate on the grounds of evident partiality does not serve as a basis for subject matter jurisdiction. See Baltin, 128 F.3d at 1472. 19

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arbitration; whether Emory waived its right to arbitration; whether the Arbitrator could sanction him under Georgia law or was required to sanction him under Fed. R. Civ. P. 11 or 37 since this is an FAA-governed arbitration; whether the Arbitrator erred in denying Dr. Murtaghs request for attorneys fees; and whether the arbitration clause is unenforceable as against public policy because the Settlement Agreement also contains non-disparagement provisions. Mot. to

Vacate 6-7, 10-12, 15-16. Dr. Murtaghs arguments ignore well-established law. As an initial matter, and contrary to Dr. Murtaghs assertions, there is no doubt that the State Court was authorized to compel arbitration in this matter as [f]ederal courts and state courts have concurrent jurisdiction to enforce the FAA.13 See Baltin, 128 F.3d at 1469; see also BellSouth Corp. v. Forsee, 265 Ga. App. 589 (2004) (affirming trial courts order compelling arbitration under the FAA); Cash In Advance of Fla., Inc. v. Jolley, 272 Ga. App. 282, 286 (2005) (reversing trial courts order denying motion to compel arbitration under the FAA). Either way, Dr. Murtagh offers no authority to support his assertion that the scope of the State Courts power involves substantial questions of federal law. In fact, Dr. Murtaghs reliance on Baltin v. Alaron Trading Corp., 128 F.3d 1466, 1472 (11th Cir. 1997) for the proposition that the State Courts authority to compel arbitration has not been decided is misplaced as numerous courts have recognized a state courts authority to do so and Baltin expressly recognized the jurisdiction of state courts to enforce the FAA.
13

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Dr. Murtaghs effort to appeal the State Courts order to the Georgia Court of Appeals on an interlocutory appeal belies his claim that there is any federal law issue involved. See Ex. 5. Likewise, the Arbitrators decision to sanction Dr. Murtagh pursuant to O.C.G.A. 9-11-37 and 9-15-14(b) does not implicate or otherwise involve any federal law, let alone a substantial question of federal law. Indeed, on its face, the Arbitration Award (1) dismissed any of Dr. Murtaghs claims (if any remained after the State Courts October 3, 2007 Contempt Order dismissing Dr. Murtaghs claims in arbitration) pursuant to Georgia, not federal, law; and (2) enters a default judgment and damages in favor of Emory on its state law claims. Nowhere does the Arbitration Award raise any federal issue. Although Dr. Murtagh has

attempted to re-characterize the Arbitrators sanction Decision as one necessarily made under Fed. R. Civ. P. 11 and/or 37, he offers no facts or legal authority to support that attempted re-characterization and the Arbitrator specifically held that he was not utilizing those federal standards to sanction Dr. Murtagh.14 See 2/4/09 Decision of Arbitrator at 5-6, attached as Ex. 8.

Moreover, [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 Hot-Hed, Inc., 477 F.3d 320 (5th Cir. 2007) (holding that attorneys fees cannot be basis for federal question jurisdiction).
14

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Dr. Murtaghs related attempts to argue that public policy, ethical standards, and/or arbitration rules require application of federal law to the Motion to Vacate are equally baseless. See, e.g., Delta Mine Holding Co. v. AFC Coal Props., 280 F.3d 815, 820 (8th Cir. 2001) (only the statutory grounds in 10(a) of the [Federal Arbitration] Act justify vacating an award; arbitration rules and ethical codes do not have the force of law) (citations omitted). Finally, Dr. Murtaghs efforts to establish federal question jurisdiction based on Emorys alleged waiver of its right to arbitration and the enforceability of an arbitration clause contained in a Settlement Agreement that also contains a nondisparagement provision is misplaced. First, the issue of waiver is one of state law. Bess v. Check Express, 294 F.3d 1298, 1306 (11th Cir. 2002) (the validity and enforceability of an arbitration agreement is a matter of state law). Moreover, the State Court has already considered and rejected Dr. Murtaghs arguments regarding waiver. See State Courts 8/3/05 Order, attached as Ex. 1. Likewise, the enforceability of a non-disparagement clause has no bearing on the enforceability of an arbitration provision. See Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 446 (2006) (an arbitration provision is severable from the remainder of the contract). Simply stated, federal-question jurisdiction exists when "the plaintiff's right to relief necessarily depends on resolution of a

22

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substantial question of federal law." Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 27-28 (1983). Here, none of the relief requested in Dr. Murtaghs Motion to Vacate depends on the resolution of any federal issue, let alone a substantial question of federal law. 4. Dr. Murtaghs Conclusory Arguments That The Arbitrator Manifestly Disregarded Federal Law Do Not Create Federal Question Jurisdiction

Dr. Murtaghs last ditch attempt to manufacture federal question jurisdiction is to vaguely and generally argue that the Arbitrator manifestly disregarded federal law. Dr. Murtaghs argument is based on his allegation that the Arbitrator should have applied Fed. R. Civ. P. 11 and/or 37, rather than the Georgia Civil Practices Act, to Dr. Murtaghs sanctionable misconduct during the arbitration. Any review of an arbitration award under a manifest disregard of the law standard is "severely limited." DiRussa v. Dean Witter Reynolds Inc., 121 F.3d 818, 821 (2d Cir. 1997), cert. denied, 522 U.S. 1049 (1998). Moreover, for purposes of jurisdiction, the mere allegation of manifest disregard is insufficient to confer federal question jurisdiction if the federal claims are without merit. See Perpetual Secs., Inc. v. Tang, 290 F.3d 132, 140 (2d Cir. 2002); Yokeno v. Mafnas, 973 F.2d 803, 808 (9th Cir. 1992) (holding that federal question jurisdiction is unavailable where federal claim "is patently without merit"). Additionally, the

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disregard must appear clearly in the record of the arbitration, and there must be some evidence in the record, other than the result, that the arbitrators were aware of the law and intentionally disregarded it. Biscanin v. Merrill Lynch & Co., 407 F.3d 905, 907 (8th Cir. 2005) (citation omitted). In this instance, Dr. Murtaghs arguments that the Arbitrator adversely affected his rights by failing to apply the Federal Rules of Civil Procedure in the arbitration, specifically Rules 11 and 37, in manifest disregard of the law are patently without merit. Indeed, an arbitrator[s] decision not to follow the Federal Rules of Civil Procedure in its conducting of the Arbitration hearings cannot form the basis for a viable manifest disregard of the law claim. Northeast Sec., Inc. v. Quest Capital Strategies, Inc., Case No. 03 Civ. 2056 (RWS), 2003 U.S. Dist. LEXIS 20025, *7 (S.D.N.Y. Nov. 7, 2003); see also Woods v. Saturn Distrib. Corp., 78 F.3d 424, 430 (9th Cir. 1996) (The Federal Rules of Civil Procedure do not apply to post hoc questioning of arbitrators). This is so because arbitrators are "not constrained by formal rules of evidence and procedure." Northeast Sec., 2003 U.S. Dist. LEXIS 20025 at *7 (citing Areca, Inc. v. Oppenheimer & Co., Inc., 960 F. Supp. 52, 56 (S.D.N.Y. 1997)). Accordingly, Dr. Murtaghs arguments that the Arbitrator manifestly disregarded federal law by failing to apply certain Federal Rules of Civil Procedure cannot serve as a basis for federal question jurisdiction.

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III.

CONCLUSION For the reasons set forth above, Emory respectfully requests that Dr.

Murtaghs Motion to Vacate be dismissed for lack of subject matter jurisdiction.15 In addition, Dr. Murtaghs counsel should be sanctioned for filing this action pursuant to 28 U.S.C. 1927. Emory further requests ten (10) days from the date of the Courts Order on this Motion to file its response to Dr. Murtaghs Motion to Vacate, should the Motion to Vacate not be dismissed in its entirety. Respectfully submitted this 11th day of May, 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
15

If the Court does not dismiss this action in its entirety, then the case should be consolidated with the matter pending before Judge Ward under Federal Rule of Civil Procedure 42(a) in light of the common (if not identical) questions of law and fact. See, e.g., Fed. R. Civ. P. 42(a); Hargett v. Valley Fed. Sav. Bank, 60 F.3d 754, 765 (11th Cir. 1995); Mae v. Southern Trace Apts., Inc., Case No. 1:06-cv2980-WSD, 2007 U.S. Dist. LEXIS 54630, *5-6 (N.D. Ga. July 27, 2007) (granting motion to consolidate where plaintiff was the same in both actions, two of the three defendants were the same, and all were represented by the same counsel); Butler v. Potter, Case No. 1:07-cv-22-SPM-AK, 2008 U.S. Dist. LEXIS 35136, *9 (N.D. Fla. Apr. 29, 2008) (court consolidated cases that had a "common nucleus of fact"). 25

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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

Case 1:09-cv-00752-HTW Document 13-6 Filed 05/11/09 Page 34 of 34

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

MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION 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: J. Clayton Culotta Culotta and Culotta LLP 432 E. Court Avenue Jeffersonville, Indiana 47130 Email: clay@culottalaw.com 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 11th day of May, 2009. s/Todd D. Wozniak Todd D. Wozniak