Case 1:09-cv-00752-HTW Document 12-1 Filed 05/05/09 Page 1 of 9

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ) ) EMORY UNIVERSITY and ) EMORY HEALTHCARE, INC., ) Plaintiffs, ) ) v. ) Case No.: 1 09-cv-0752-HTW ) JAMES J. MURTAGH, M.D., ) ) Defendant. ) )

MEMORANDUM IN SUPPORT OF DR. MURTAGHS MOTION TO COMPEL EMORY UNIVERSITY AND EMORY HEALTHCARE, INC. TO FILE A MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION TO CONFIRM THE ARBITRATOR'S FINAL JUDGMENT AND AWARD OR, ALTERNATIVELY, TO ESTABLISH DEADLINE FOR DR. MURTAGH TO FILE HIS RESPONSE TO EMORYS MOTION

James J. Murtagh, M.D., the above-named Defendant, hereinafter referred to as "Dr. Murtagh," by and through the undersigned counsel submits the following memorandum of law in support of his Motion to Compel Emory University and Emory Healthcare, Inc. to File a Memorandum of Law in Support of Their Motion to Confirm the Arbitrator's Final Judgment and
1

Case 1:09-cv-00752-HTW Document 12-1 Filed 05/05/09 Page 2 of 9

Award or, Alternatively, to Establish Deadline for Dr. Murtagh To File His Response To Emorys Motion. I. BACKGROUND On February 17, 2009, Emory University and Emory Healthcare, Inc. (collectively Emory) filed a motion to confirm the final judgment and award entered in arbitration. Emorys motion was filed captioned as if in a cause pending in the Superior Court of Fulton County Georgia titled James J. Murtagh, M.D. v. Fulton-Dekalb Hospital Authority, Emory University, Emory Healthcare, Inc., Grady Health Services Company, Inc. and John Does 1-10, Civil Action File No. 2004-CV-94259. The filing of a motion to confirm a Federal Arbitration Act (FAA) arbitration award represents a new cause of action and litigation pursuant to 9 U.S.C. 9. Dr. Murtagh filed his notice of removal of Emorys motion to confirm to this Court on March 19, 2009. On March 23, 2009, after the notice of removal had been filed, Dr. Murtagh filed his motion in this Court seeking an expansion of the deadline to file a response to Emorys motion to confirm the arbitration award. However, after filing the motion for expansion of time to respond to Emorys motion to confirm the award, Dr. Murtaghs counsel concluded from a review of the local rules of this Court that Dr. Murtaghs response to Emorys motion to confirm the award would not be due until ten days after Emory complied with Local Rule 7.2A and filed a separate memorandum of law setting forth fully the points and authorities on which Emory intended to rely in support of its motion. Accordingly, Dr. Murtagh withdrew his motion for expansion of time to respond on March 27, 2009.
2

Case 1:09-cv-00752-HTW Document 12-1 Filed 05/05/09 Page 3 of 9

Along with the withdrawal of the motion for expansion of time, Dr. Murtagh filed a memorandum of law explaining his counsels understanding that Local Rule 7.2A requires that Emory file a separate memorandum of law in support of the motion to confirm the arbitration award which had been filed in state court without a separate supporting memorandum. Despite Dr. Murtaghs suggestion that Emory needed to file a separate memorandum of law in support of its motion to confirm the arbitration award, Emory still has not done so. II. AUTHORITY The Civil Local Rules of Practice for the United States District Court for the Northern District of Georgia make provision for addressing motions pending in state court when an action is removed. Local Rule 7.2A provides: When an action or proceeding is removed to this court with pending motions on which briefs have not been submitted, the moving party shall serve a memorandum in support of the motion within ten (10) days after removal. Each party opposing the motion shall reply in compliance with LR 7.1B. LR 7.2A, NDGa. As noted above, this action was removed from state court on March 19, 2009. The ten day time limit for Emory to file its memorandum of law in support of its motion to confirm the award has long since passed. Local Rule 7.1F provides: The court, in its discretion, may decline to
3

Case 1:09-cv-00752-HTW Document 12-1 Filed 05/05/09 Page 4 of 9

consider any motion or brief that fails to conform to the requirements of these rules. LR 7.1F, NDGa. It is not clear what the possible consequences would be in this case were the Court to choose to exercise its discretion to decline to consider Emorys motion to confirm the arbitration award. Presumably, the motion could be denied by default or, Emorys entire action could be dismissed pursuant to Fed. R. Civ. P. 41(b). Obviously, such a result would be unduly harsh. The Eleventh Circuit indicated as much in the decision in an unpublished opinion which can be found at Pierce v. City of Miami, 176 Fed.Appx. 12, 2006 U.S. App. LEXIS 6564 (11th Cir. 2006). A more appropriate response to Emorys failure to file a separate memorandum of law in support of its motion is suggested in Betty K. Agencies, LTD., v. M/V Monada, 432 F.3d 1333, 1340 (11th Cir. 2005) where the court noted that failure to comply with a rule requiring filing of a pleading is generally remedied by order to compel filing of the missing pleading. Therefore, Dr. Murtagh seeks an order compelling Emory to file the required separate memorandum of law in support of its motion to confirm the arbitration. Emorys compliance with such an order will then start the clock running under LR7.1B giving Dr. Murtagh ten days to respond. Alternatively, should the Court determine that Emory is not required to file a separate memorandum of law in support of its motion to confirm
4

Case 1:09-cv-00752-HTW Document 12-1 Filed 05/05/09 Page 5 of 9

the arbitration award, then Dr. Murtagh would request that the Court set a deadline for him to file his response to Emorys motion. Dr. Murtagh has, as a protective matter and out of an abundance of caution, just filed a response to Emorys Motion to Confirm and requested an evidentiary hearing on the motion. However, if Dr. Murtaghs instant motion is granted in whole or part, Dr. Murtagh respectfully requests that this Court allow Dr. Murtagh to supplement his response by the new deadline set by the Court. III. CONCLUSION AND PRAYER FOR RELIEF. For the foregoing reasons, Dr. Murtagh requests that the Court issue an order compelling Emory to file and serve a separate memorandum of law in support of its motion to confirm the arbitration award. Alternatively, Dr. Murtagh requests that the Court set a date for him to file his supplemental response to Emorys motion. Respectfully submitted, /s/ Glenn L. Goodhart__________ Glenn L. Goodhart, Esq., GA Bar # 300540 6065 Roswell Road NE Suite 410 Sandy Springs, GA 30328 Tel. 404-255-3282 Fax 404-255-3524 s/ J. Clayton Culotta J. CLAYTON CULOTTA Culotta & Culotta LLP Jefferson Hall 432 E. Court Avenue Jeffersonville, Indiana 47130
5

Case 1:09-cv-00752-HTW Document 12-1 Filed 05/05/09 Page 6 of 9

Telephone No. (812) 288-5141 Facsimile No. (812) 288-8305

s/ Mick G. Harrison The Caldwell Center 323 S. Walnut Street Bloomington, IN 47401 Telephone and Fax (812) 323-7274 Cell phone No. (812) 361-6220 E-mail: mickharrisonesq@earthlink.net Attorneys for Defendant James J. Murtagh, M.D.

Case 1:09-cv-00752-HTW Document 12-1 Filed 05/05/09 Page 7 of 9

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/ Mick G. Harrison Mick G. Harrison, Esq. Pro Hac Vice

Case 1:09-cv-00752-HTW Document 12-1 Filed 05/05/09 Page 8 of 9

CERTIFICATE OF SERVICE This is to certify that I have served a copy of the foregoing MEMORANDUM IN SUPPORT OF DR. MURTAGHS MOTION TO COMPEL EMORY UNIVERSITY AND EMORY HEALTHCARE, INC. TO FILE A MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION TO CONFIRM THE ARBITRATOR'S FINAL JUDGMENT AND AWARD OR, ALTERNATIVELY, TO ESTABLISH DEADLINE FOR DR. MURTAGH TO FILE HIS RESPONSE TO EMORYS MOTION upon the Plaintiff herein, by filing 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: Todd D. Wozniak Lindsey Camp Edelmann GREENBERG TRAURIG LLP 3920 Northside Parkway, Suite 400 Atlanta, GA 30327 wozniakt@gtlaw.com I further certify that I have provided a courtesy copy via email to the following attorney for Grady Health Services Company, Inc. Theodore B. Eichelberger Alton & Bird LLP One Atlantic Center
8

Case 1:09-cv-00752-HTW Document 12-1 Filed 05/05/09 Page 9 of 9

1201 West Peachtree Street Atlanta, GA 30309-3424 teichelberger@alston.com All done this 4th day of May, 2009. s/ Mick G. Harrison_____________ Mick G. Harrsion, Esq.