Case 1:09-cv-00752-HTW Document 21 Filed 06/18/10 Page 1 of 6

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. ) ) ) ) ) ) ) ) ) ) )

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

EMORY UNIVERSITYS AND EMORY HEALTHCARE, INC.S RESPONSE IN OPPOSITION TO MURTAGHS MOTION FOR RECONSIDERATION OF COURTS REMAND ORDER Dr. Murtaghs Motion for Reconsideration of the Courts May 7, 2010 Remand Order ignores binding precedent that remand orders may not be reconsidered. Accordingly, the Motion should be denied and Dr. Murtaghs

counsel should be ordered to pay Emory Universitys and Emory Healthcare, Inc.s (collectively, Emory) attorneys fees and costs pursuant to 28 U.S.C. 1927. I. DR. MURTAGHS MOTION IS FRIVOLOUS BECAUSE REMAND ORDERS ARE UNREVIEWABLE Remand orders based on 28 U.S.C. 1447(c) are unreviewable on appeal or otherwise. See, e.g., 28 U.S.C. 1447(d); Corporate Mgmt. Advisors, Inc. v. Artjen Complexus, Inc., 561 F.3d 1294, 1296 (11th Cir. 2009). Federal courts

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universally have construed this language to preclude not only appellate review of a remand order but also reconsideration by the district court. Stanley v. Kelly, 758 F. Supp. 1487, 1488 (S.D. Fla. 1991); see also Burr & Forman v. Blair, 470 F.3d 1019, 1034 (11th Cir. 2006) (Section 1447(d) bars not only appellate review of a remand order, but also reconsideration of the order by the remanding district court.). Once the district court remands a case to the state court, the district court is wholly deprived of jurisdiction to vacate or correct its remand order. Stanley, 758 F. Supp. at 1488. This is true even if the district court improperly remanded the case. Id.; see also In re La Providencia Dev. Corp., 406 F.2d 251, 253 (1st Cir. 1969); Adkins v Ill. Cent. R.R. Co., 326 F.3d 828 (7th Cir. 2003). Here, the Court concluded in its Remand Order that remand was proper because Dr. Murtagh always was the plaintiff and the removal was untimely. (See Courts 5/7/10 Order at 8). As such, the Courts Remand Order was based on 1447(c). See, e.g., Tipp v. AmSouth Bank, 89 F. Supp. 2d 1304, 1307 (S.D. Ala. 2000) ("It is settled law that an untimely removal constitutes a defect in the removal process, and that a remand based upon such a defect is encompassed by 1447(c)") (citing Things Remembered v. Petrarca, 516 U.S. 124, 127-28 (1995)).

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Because the Court remanded this case pursuant to 1447(c), the Court is precluded from reconsidering its remand order by 1447(d).1 II. EMORY SHOULD BE AWARDED THE COSTS AND FEES INCURRED IN FILING THIS RESPONSE Dr. Murtaghs counsel continues to vexatiously and unnecessarily multiply these proceedings by taking frivolous positions. As previously briefed by Emory, Dr. Murtaghs removal lacked a good faith basis. (See Dkt. 13 at 14-15). Dr. Murtaghs Motion for Reconsideration is even more meritless. As such, Dr.

Murtaghs counsel should be ordered to pay Emorys fees and costs. See 28 U.S.C. 1927; Schwartz v. Million Air, Inc., 341 F.3d 1220, 1225 (11th Cir. 2003) (holding that bad faith exists when an attorney knowingly or recklessly pursues a frivolous claim or engages in litigation tactics that needlessly obstruct the litigation of non-frivolous claims); First Bank of Clewiston v. C&J Sapp Publg Co., Case No. 98-167-CIV-FTM-25(D), 1999 U.S. Dist. LEXIS 9193,*3 (M.D. Fla. March 30, 1999) (awarding plaintiff the attorney fees incurred in defending remand after denying defendants motion for reconsideration of remand order).

The Courts remand decision was also correct for all of the reasons previously briefed by Emory. In fact, Dr. Murtaghs Motion for Reconsideration is really just an improper attempt to re-argue the same points the Court has already rejected. 3

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CONCLUSION For the reasons set forth above, Emory respectfully requests that Dr. Murtaghs Motion for Reconsideration be denied and that his counsel be ordered to pay Emorys attorneys fees and costs. Respectfully submitted, this 18th day of June, 2010.

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 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 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 J. Clayton Culotta, Esq. Culotta and Culotta LLP 1615 L Street, NW, Suite 1350 Washington, D.C. 20036 Email: clay@culottalaw.com This 18th day of June, 2010. s/Todd D. Wozniak Todd D. Wozniak