United States District Court, N.D. Georgia, Atlanta Division
MAGISTRATE JUDGE'S FINAL REPORT AND
T. WALKER, UNITED STATES MAGISTRATE JUDGE
case is presently before the Court on Defendant Morehouse
School of Medicine's Motion for Summary Judgment. (Doc.
14). For the reasons outlined below, the Court
RECOMMENDS that this lawsuit be
REMANDED to the Superior Court of Fulton
County because the Court lacks subject matter jurisdiction.
The disposition of Defendant's pending summary judgment
motion should be DEFERRED to the Superior
Court of Fulton County. (Doc. 14).
22, 2016, Plaintiff Freda Mensah (“Plaintiff”)
filed this lawsuit against Defendant Morehouse School of
Medicine (“Defendant”) in the Superior Court of
Fulton County. (Doc. 1-1). Plaintiff alleges causes of action
for breach of contract, damage to reputation, liability for
punitive damages, and entitlement to attorneys' fees due
to Defendant's bad faith and stubborn litigiousness.
Plaintiff's claims stem from Defendant's alleged
failure to comply with the terms of a settlement reached by
the parties in a prior litigation. Specifically, Plaintiff
avers in her Complaint, that she is a medical resident
enrolled in Defendant's Community Pediatric Residency
Program. (Compl. ¶ 2). Plaintiff avers that she
previously brought suit against Defendant in the United
States District Court for the Northern District of Georgia in
2014, alleging that Defendant discriminated against her on
the basis of her disability in violation of the Americans
with Disabilities Act, 42 U.S.C. § 12182 (“the
ADA”) and the Rehabilitation Act, 29 U.S.C. § 701,
when Defendant denied her requests for reasonable
accommodation and dismissed her from the residency program.
(See Mensah v. Morehouse Sch. of Medicine, No.
1:14-CV-1991, Am. Compl., Doc. 7, at ¶¶ 65-79
(N.D.Ga. Aug. 25, 2014)). Plaintiff subsequently agreed to
release all her claims and to dismiss the prior lawsuit
against Defendant. (Compl. ¶¶ 3, 9; see
also Mensah Dep, Ex. 3, Doc. 1404, at 40). Plaintiff
avers that in exchange, Defendant was required to readmit her
back into the Pediatric Residency Program as a Post Graduate
Year 1 resident and provide reasonable accommodation for a
broad range of covered disabilities. (Compl. ¶¶ 3,
also avers that although she fully complied with her
obligations under the agreement, Defendant delayed her
reentry into the program for more than a month, failed to
provide her with self-study materials it agreed to make
available prior to readmission, refused her permission to
take time off for a post-surgery medical examination and
procedure, omitted to provide her with access to a website
containing mandatory training modules, did not include her on
resident email communications which provided critical
information necessary for her successful completion of the
program, denied her leave so that she could attend mandatory
orientation for residents, and refused to provide clinic
experiences equivalent to those provided to other residents.
(Compl. ¶¶ 4-14, 21). Plaintiff claims that
Defendant's failure to provide her with training and
access to training resources adversely impacted her
evaluations and maintains that she was subjected to letters
being placed in her file criticizing her professionalism and
documenting performance issues. (Comp. ¶¶ 16-20).
Plaintiff contends that Defendant's alleged failures and
omissions breached the settlement agreement and caused her to
be unable to complete the residency program resulting in
professional harm and harm to her reputation. (Compl.
¶¶ 33-39). Plaintiff further contends that she is
entitled to attorneys' fees and costs of litigation due
to Defendants bad faith and stubborn litigiousness. (Compl.
¶¶ 40-41). Finally, Plaintiff asserts that she is
entitled to punitive damages because Defendant intentionally
retaliated against her for having brought her prior legal
action and was determined to cause her to fail in the
residency program. (Compl. ¶¶ 42-44).
removed the matter to this Court on the grounds that
Plaintiff sought to recover for violations of the Americans
with Disabilities Act or the Rehabilitation Act claiming that
Defendant discriminated and retaliated her and failed to
accommodate her based on her disabilities. (Def.'s Notice
of Removal, Doc. 1, at ¶¶ 3-9). In support,
Defendant points out that Plaintiff has filed two complaints
with Defendant's Office of Civil Rights in late 2015
alleging that Defendant violated the Rehabilitation Act when
Defendant denied her access to the same services, programs,
and activities as other residents due to her disabilities,
retaliated against her, and failed to accommodate her
disabilities. (Notice of Removal ¶¶ 7-8). Finally,
Defendant notes that in the settlement agreement, Plaintiff
consented to the exclusive jurisdiction of this Court for
matters relating to a breach of the settlement agreement.
(Notice of Removal ¶ 6).
SUBJECT MATTER JURISDICTION
no party has raised the issue of whether the Court has
subject matter jurisdiction, this Court has a duty to
determine sua sponte whether it has subject matter
jurisdiction over the case. Cotton v. Mass. Mut. Life
Ins. Co., 402 F.3d 1267, 1280 (11th Cir. 2005)
(“Ordinarily, if removal was improper, the court lacks
subject matter jurisdiction and must raise the issue sua
sponte and then dismiss on that ground”). “The
district court may remand a case sua sponte for lack of
subject matter jurisdiction at any time.” Corp.
Mgmt. Advisors, Inc. v. Artjen Complexus, Inc., 561 F.3d
1294, 1296 (11th Cir. 2009); see also 28 U.S.C.
§ 1447(c) (“If at any time before final judgment
it appears that the district court lacks subject matter
jurisdiction, the case shall be remanded.”)
action brought in a state court may only be “removed by
the defendant or the defendants to the district court of the
United States for the district and division embracing the
place where such action is pending.” 28 U.S.C. §
1441(a). Such actions may only be removed if the district
courts of the United States have original jurisdiction over
the action. Id. “[I]n removal cases, the
burden is on the party who sought removal to demonstrate that
federal jurisdiction exists.” Kirkland v. Midland
Mortg. Co., 243 F.3d 1277, 1281 n.5 (11th Cir. 2001)
(citation omitted); Lowery v. Alabama Power Co., 483
F.3d 1184, 1207-08 (11th Cir. 2007). In determining whether
removal jurisdiction exists, courts must strictly construe
the removal statute because of the federalism concerns
implicated. Palisades Collections, LLC v. Shorts,
552 F.3d 327, 333-34 (4th Cir. 2008); Univ. of S. Ala. v.
The Am. Tobacco Co., 168 F.3d 405, 411 (11th Cir. 1999);
Burns v. Windsor Ins. Co., 31 F.3d 1092, 1094 (11th
Cir. 1994). “[U]ncertainties are resolved in favor of
remand.” Burns, 31 F.3d at1095; see also
Jones v. LMR Int'l, Inc., 457 F.3d 1174, 1177 (11th
Cir. 2006) (“[I]t is axiomatic that ambiguities are
generally construed against removal.”). In that vein,
conclusory allegations within removal papers and speculation
are not sufficient to establish a basis for jurisdiction.
Lowery, 483 F.3d at 1214-15; Williams v. Best
Buy Co., 269 F.3d 1316, 1319-20 (11th Cir. 2001).
noted above, Defendant maintains that this Court has federal
question jurisdiction because Plaintiff's Complaint
asserts claims that Defendant discriminated and retaliated
against her and failed to accommodate her disabilities in
violation of the Americans with Disabilities Act, 42 U.S.C.
§§ 12101 et seq. (“the ADA”), and/or
the Rehabilitation Act, 29 U.S.C. §§ 794 et
seq. “The presence or absence of a
federal-question jurisdiction is governed by the
‘well-pleaded complaint rule, ' which provides that
federal jurisdiction exists when a federal question is
presented on the face of plaintiff's properly pleaded
complaint. The rule makes the plaintiff the master of the
claim; he or she may avoid federal jurisdiction by exclusive
reliance on state law.” Caterpillar Inc. v.
Williams, 482 U.S. 386, 392 (1987) (internal citation
omitted). “To determine whether the claim arises under
federal law, courts examine the ‘well pleaded'
allegations of the complaint and ignore potential defenses: a
suit arises under the Constitution and laws of the United
States only when the plaintiff's statement of his own
cause of action shows that it is based upon those laws or
that Constitution.” Beneficial Nat'l
Bank v. Anderson, 539 U.S. 1, 6 (2003). Federal
jurisdiction is also proper when federal claims are wrongly
characterized as state law claims or, in some limited cases,
where the state law claims require interpretation of federal
law. Rivet v. Regions Bank of La., 522 U.S.
470, 476 (1998); Merrell Dow Pharmaceuticals v.
Thompson, 478 U.S. 804, 807 (1986). Neither circumstance
is present here.
Plaintiff's Complaint Does Not Assert Claims Pursuant
to the ADA or Rehabilitation Act
contrary to Defendant's interpretation of the Complaint,
Plaintiff does not assert an ADA or Rehabilitation Act claim
and there is no federal claim present anywhere in the
Complaint. Count I of Plaintiff's Complaint asserts a
state law claim for breach of the settlement agreement. Count
II asserts a state law claim for “damage to
reputation” stemming from Defendant's
“intentional or negligent failure to provide [her] the
benefits of the settlement agreement.” In Count III,
Plaintiff seeks attorneys' fees on the grounds that
Defendant acted in bad faith and was stubbornly litigious.
in Count IV, Plaintiff argues she is entitled to punitive
damages because Defendant “intentionally retaliated
against [her] for having brought her prior legal action and
was determined to cause her to fail in the residency
program.” No. federal laws were cited within the
Complaint. Furthermore, since the filing of the Complaint,
Plaintiff has described her claim as a breach of the
settlement agreement and denies that she has asserted a claim
pursuant to the ADA or the Rehabilitation Act. See
Joint Preliminary Report and Discovery Plan, Doc. 5, at 1, 2;
Pl.'s Br., Doc. 18, at 18-19; Pl.'s Dep. 227:
Pl.'s Statement of Facts ¶ 31).
Plaintiff's language in Count IV that Defendant
“intentionally retaliated against [her] for having
brought her prior legal action and was determined to cause
her to fail in the residency program” suggests the
possibility that Plaintiff could be asserting a claim under
the ADA or the Rehabilitation Act, further analysis suggests
otherwise. First and foremost, Plaintiff never mentions the
ADA or the Rehabilitation Act in the Count or anywhere else
in the Complaint. Given Plaintiff's deliberate omission
of the ADA and the Rehabilitation Act from the Complaint, it
is more plausible that Plaintiff is pleading intentional
infliction of emotional distress or some other tort pursuant
to state law in Count IV. See, e.g. Yarbray v. S. Bell
Tel. & Tel. Co., 261 Ga. 703, 706 (2) (1991)
(concluding that where evidence showed employer deliberately
set out to retaliate against its employee for testifying
against the employer, including subjecting her to abuse and
causing her severe emotional pain could subject the company
to damage for intentional infliction of emotional distress.).
To deduce that Count IV asserts a claim pursuant to the ADA
or the Rehabilitation Act would be pure speculation and
speculation is not enough to confer federal jurisdiction.
Williams, 269 F.3d at 1319-20. The ambiguity in this
case is construed against removal.Jones v. LMR