Emory 12

Case 1:09-cv-01186-HTW Document 12 Filed 01/24/11 Page 1 of 43
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION
) ) PLAINTIFF, ) ) VS. ) ) EMORY UNIVERSITY, ET AL., ) ) DEFENDANTS. ) ) ) _____________________________)
JAMES J. MURTAGH,
DOCKET NUMBER 1:09-CV-1186-HTW ATLANTA, GEORGIA DECEMBER 20, 2010
TRANSCRIPT OF PROCEEDINGS BEFORE THE HONORABLE HORACE T. WARD, UNITED STATES DISTRICT SENIOR JUDGE APPEARANCES: FOR THE PLAINTIFF: MICK HARRISON MICK HARRISON, ESQ. BLOOMINGTON, INDIANA
47401
FOR DEFENDANT FULTON-DEKALB:
TODD WOZNIAK GREENBERG TRAURIG ATLANTA, GEORGIA 30327 THEODORE EICHELBERGER ALSTON & BIRD ATLANTA, GEORGIA 30309 MONTRELL VANN, CCR,RPR,RMR,CRR 2394 UNITED STATES COURTHOUSE 75 SPRING STREET, SOUTHWEST ATLANTA, GEORGIA 30303 (404)215-1549
FOR DEFENDANT EMORY:
OFFICIAL COURT REPORTER:
UNITED STATES DISTRICT COURT OFFICIAL CERTIFIED TRANSCRIPT
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(IN ATLANTA, FULTON COUNTY, GEORGIA, DECEMBER 20, 2010, IN OPEN COURT.) THE COURT: ALL RIGHT, GENTLEMEN. THE COURT HAS UNDER
CONSIDERATION THE CASE OF MURTAGH VERSUS EMORY UNIVERSITY, ET AL. LET'S SEE WHO'S HERE. MR. HARRISON: YOUR HONOR, MICK HARRISON FOR
DR. MURTAGH, THE PLAINTIFF. THE COURT: HUH? MICK HARRISON FOR DR. MURTAGH.
MR. HARRISON: THE COURT:
WHAT'S YOUR NAME? IT'S MICK AS IN MICKY HARRISON.
HUH? MICK HARRISON, JUDGE.
OH, YOU'RE FROM WHERE, TENNESSEE OR -THAT'S CLOSE. INDIANA.
INDIANA.
ALL RIGHT, SIR. TODD
MR. WOZNIAK:
GOOD AFTERNOON, YOUR HONOR.
WOZNIAK FOR THE EMORY ENTITIES. MR. EICHELBERGER: THE GRADY ENTITIES. THE COURT: YOUR HONOR, TED EICHELBERGER FOR
TED EICHELBERGER FOR THE GRADY ENTITIES. OKAY. AND, JUDGE, IF I MIGHT, DR. MURTAGH IS
MR. HARRISON: WITH ME TODAY. THE COURT:
THAT'S FINE.
I THINK THIS CASE IS ON THE
MOTION OF THE DEFENDANTS TO DISMISS FOR LACK OF SUBJECT-MATTER UNITED STATES DISTRICT COURT OFFICIAL CERTIFIED TRANSCRIPT
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JURISDICTION; IS THAT CORRECT? MR. HARRISON: MR. WOZNIAK: THE COURT: THAT IS CORRECT, YOUR HONOR. YES, YOUR HONOR. WELL, THEN, I'LL HEAR FROM
ALL RIGHT.
THE -- HEAR FROM THE DEFENDANTS FIRST. MR. WOZNIAK: THANK YOU, YOUR HONOR. YOUR HONOR
HANDLED A RELATED CASE A FEW MONTHS BACK.
THIS LAWSUIT HAS BEEN
ON A LONG AND TORTURED ROAD TO YOUR CHAMBERS, BUT WE'RE VERY GLAD WE'RE HERE. BY WAY OF A LITTLE BIT OF BACKGROUND,
DR. MURTAGH WAS A TENURED PROFESSOR AT EMORY UNIVERSITY AND PROVIDED SERVICES AT GRADY HOSPITAL FOR A PERIOD OF TIME. IN
1999 HE WAS SUSPENDED AS A RESULT OF A NUMBER OF COMPLAINTS THAT WERE FILED AGAINST HIM. HE THEN FILED ABOUT A DOZEN SEPARATE AND TO MAKE MATTERS SHORT,
LAWSUITS AND ADMINISTRATIVE CHARGES.
AFTER A YEAR OR MORE OF LITIGATION THE PARTIES ULTIMATELY SETTLED THEIR DISPUTE IN A AUGUST 2001 SETTLEMENT AGREEMENT. AND THAT AUGUST 2001 SETTLEMENT AGREEMENT IS LARGELY WHAT BRINGS US HERE TODAY BECAUSE IT HAD AN ARBITRATION PROVISION IN IT, AND THAT ARBITRATION PROVISION REQUIRE THE PARTIES TO ARBITRATE ALL DISPUTES OTHER THAN CLAIMS FOR INJUNCTIVE RELIEF. NOW, DR. MURTAGH FILED THE UNDERLYING LAWSUIT IN THIS CASE IN THE FULTON COUNTY SUPERIOR COURT, GEORGIA STATE COURT IN NOVEMBER OF 2004. AND IN THAT COMPLAINT HE ASSERTED A NUMBER OF HE ALSO ASSERTED
BREACHES OF THE PARTIES' SETTLEMENT AGREEMENT. A NUMBER OF STATE TORT CLAIMS.
EMORY FILED AN ANSWER AND
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COUNTER CLAIM, AND ULTIMATELY IN JUNE OF 2005 IT FILED SOME AMENDED COUNTER CLAIMS. ALL OF THOSE COUNTER CLAIMS WERE
LIKELY -- EXCUSE ME, WERE LIKEWISE STATE CLAIMS, SO BREACH OF CONTRACT, STATE TORT CLAIMS. GRADY ALSO FILED, I BELIEVE, A
COUNTER CLAIM, IF I RECALL, AGAIN, ALL STATE LAW CLAIMS. THE FULTON COUNTY SUPERIOR COURT, JUDGE GAYLE TUSAN, ULTIMATELY ON EMORY'S MOTION COMPELLED THE CLAIMS FOR DAMAGES OR LEGAL RELIEF INTO ARBITRATION AND KEPT THE CLAIMS FOR EQUITABLE RELIEF AS THE SETTLEMENT AGREEMENT PROVIDED. AFTER A PERIOD OF ONE, WE
TIME THE PARTIES GOT TOGETHER AND AGREED ON TWO THINGS.
AGREED ON A SCHEDULING ORDER WHICH PROVIDED THAT THE GEORGIA CIVIL PRACTICES ACT WOULD GOVERN DISCOVERY IN BOTH THE ARBITRATION AND IN THE CASE BEFORE JUDGE TUSAN. DID THAT WAS OBVIOUSLY THE CLAIMS OVERLAPPED. THE REASON WE
WE WERE TRYING
NOT TO HAVE DUPLICATION AND WE WERE TRYING TO HAVE ONE SET OF RULES APPLY. TUSAN. SO THAT'S AN ORDER THAT WAS ENTERED BY JUDGE
IT'S IN THE RECORD. THE COURT: JUDGE WHO, TUSAN? JUDGE TUSAN FROM THE FULTON COUNTY
MR. WOZNIAK: SUPERIOR COURT.
JUDGE TUSAN ALSO ENTERED A TEMPORARY IT WAS ACTUALLY A CONSENT INJUNCTION. AND IN
INTERLOCUTORY INJUNCTION.
DR. MURTAGH'S COUNSEL CONSENTED TO THE INJUNCTION.
EFFECT WHAT WAS GOING ON WAS DR. MURTAGH WAS USING OTHER PERSONS' NAMES, INCLUDING NAMES OF REAL EMORY EMPLOYEES, TO PUBLISH DEFAMATORY ALLEGATIONS ABOUT EMORY EMPLOYEES AND UNITED STATES DISTRICT COURT OFFICIAL CERTIFIED TRANSCRIPT
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ACCUSED EMORY EMPLOYEES OF VARIOUS CRIMINAL CONDUCT.
JUDGE
TUSAN ENTERED THAT INJUNCTION WITH DR. MURTAGH'S COUNSEL'S CONSENT, AND SO THAT'S THE TEMPORARY INTERLOCUTORY INJUNCTION THAT WAS IN THE CASE. OVER A PERIOD OF TIME EMORY DISCOVERED THAT DR. MURTAGH WAS VIOLATING THAT INTERLOCUTORY INJUNCTION, AND JUDGE TUSAN ENTERED A CONTEMPT ORDER FINDING IN CONTEMPT OF HER INTERLOCUTORY INJUNCTION. LATER AFTER THE CASE WAS REASSIGNED TO FULTON
COUNTY SUPERIOR COURT JUDGE WENDY SHOOB, JUDGE SHOOB ALSO FOUND HIM IN CONTEMPT A SECOND TIME, AND THAT CONTEMPT ORDER IS IN THE RECORD. AND EFFECTIVELY IT DOES A NUMBER OF THINGS, INCLUDING
IT ENTERS A DEFAULT JUDGMENT AGAINST DR. MURTAGH ON ALL OF HIS CLAIMS AND ENJOINS HIM FROM PURSUING ANY OF THOSE CLAIMS, INCLUDING THE CLAIMS THAT WERE IN ARBITRATION. GOING PARALLEL WITH THIS WE WERE DOING DISCOVERY IN THE ARBITRATION, AND WHAT WE DISCOVERED IS THAT DR. MURTAGH HAD EITHER WITHHELD OR INTENTIONALLY DESTROYED A NUMBER OF KEY PIECES OF DOCUMENTARY EVIDENCE. WE ALSO HAD EVIDENCE THAT HE AND
WAS MANIPULATING ELECTRONIC INFORMATION AND EVIDENCE.
FINALLY WE WERE ABLE TO ESTABLISH THAT HE PERJURED HIMSELF ON A NUMBER OF OCCASIONS. WE PRESENTED THAT EVIDENCE TO THE
ARBITRATOR THE PARTIES AGREED TO, AND THAT WAS RICHARD DEANE WHO'S A FORMER U.S. ATTORNEY FOR THE NORTHERN DISTRICT OF GEORGIA, ALSO FORMER U.S. MAGISTRATE JUDGE. AND MR. DEANE
CONCLUDED THAT IN FACT DR. MURTAGH HAD ENGAGED IN GROSS UNITED STATES DISTRICT COURT OFFICIAL CERTIFIED TRANSCRIPT
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DISCOVERY ABUSES, AND HE ISSUED A SANCTIONS AWARD, AND THAT SANCTIONS AWARD EFFECTIVELY SAYS THAT TO THE EXTENT JUDGE SHOOB DIDN'T ALREADY DISMISS ALL YOUR CLAIMS, I'M DISMISSING YOUR CLAIMS. HE ALSO ENTERED A DEFAULT JUDGMENT ON EMORY'S COUNTER WHEN THAT AWARD CAME
CLAIMS AND AWARDED VARIOUS LEGAL RELIEF.
OUT WE FILED A MOTION TO CONFIRM THE ARBITRATION AWARD IN FULTON COUNTY SUPERIOR COURT. THE COURT: AND SHORTLY THEREAFTER --
NOW, YOU MEAN THE DEFENDANTS FILED THAT? YES, SIR. THE EMORY ENTITIES DID, AND THAT MOTION OR
MR. WOZNIAK:
THEN THE GRADY ENTITIES FILED A 'ME TOO' MOTION.
THAT PETITION WAS THE SUBJECT OF THE FIRST CASE THAT CAME BEFORE YOUR HONOR, AND DR. MURTAGH ATTEMPTED TO REMOVE THAT PETITION. AND THAT REMOVED CASE, IF YOU WILL, WAS GIVEN CIVIL ACTION. 1:09-CV-0752. AND YOUR HONOR HAS ALREADY REMANDED THAT CASE. I
CALL IT "CASE" LOOSELY. THE PETITION TO CONFIRM. OF THE UNDERLYING CASE.
DR. MURTAGH ATTEMPTED TO REMOVE SOLELY HE DIDN'T ATTEMPT TO REMOVE THE REST AND YOUR HONOR EFFECTIVELY CONCLUDED A
COUPLE OF THINGS IN YOUR ORDER, AND THAT WAS A -- I BELIEVE THAT WAS A MAY 2010 ORDER. YOU CONCLUDED, ONE, THE PETITION TO
CONFIRM WAS PART OF THE UNDERLYING STATE COURT ACTION BECAUSE JUDGE TUSAN, WHEN SHE COMPELLED ARBITRATION, STAYED THE CLAIM THAT SHE COMPELLED AN ARBITRATION. SHE DIDN'T DISMISS THEM.
SECOND, YOU CONCLUDED THAT DR. MURTAGH WAS THE PLAINTIFF IN UNDERLYING ACTION (SIC) DOESN'T HAVE THE RIGHT TO REMOVE. THIRD, YOU CONCLUDED THAT THERE WAS NO FEDERAL-COURT UNITED STATES DISTRICT COURT OFFICIAL CERTIFIED TRANSCRIPT AND,
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JURISDICTION, IN ANY EVENT, NO DIVERSITY JURISDICTION, NO FEDERAL-QUESTION JURISDICTION. THE COURT: WELL, THAT CASE IS NOT BEFORE ME TODAY,
BUT YOU JUST GIVE ME THAT FOR BACKGROUND? MR. WOZNIAK: IT IS, YES, YOUR HONOR, BUT THIS IS THE THIS IS THE PETITION TO IT WAS ASSIGNED
FLIP SIDE OF THE MOTION TO CONFIRM. VACATE.
SO THE PETITION TO VACATE WAS FILED.
ORIGINALLY TO JUDGE STORY.
WE FILED OUR MOTION TO DISMISS, AND
WE NOTED OBVIOUSLY THAT THIS CASE WAS RELATED TO THE REMOVAL ACTION THAT YOU HAD PREVIOUSLY HAD, AND THEN JUDGE STORY REASSIGNED THIS CASE TO YOU. NOW, THE PETITION TO VACATE SEEMS TO ME SHOULD BE DISMISSED FOR AT LEAST THREE REASONS. THE FIRST REASON IS THE REASON THAT
YOU PREVIOUSLY CITED IN YOUR REMAND ORDER, WHICH IS THIS IS PART AND PARCEL OF THE UNDERLYING STATE COURT ACTION. AND THERE'S NO
REASON FOR THIS TO BE FILED AS A SEPARATE LAWSUIT IN THIS COURT. THIS PETITION TO VACATE SHOULD HAVE BEEN FILED WITH THE FULTON COUNTY SUPERIOR COURT THAT STAYED THE ORIGINAL PROCEEDINGS AND COMPELLED THEM IN ARBITRATION. AND IN FACT JUDGE SHOOB, AS I
MENTIONED BEFORE, HER CONTEMPT ORDER ACTUALLY ENJOINS DR. MURTAGH FROM ATTEMPTING TO PURSUE HIS CLAIMS IN ANOTHER COURT. ARGUABLY HE'S IN VIOLATION OF THAT CONTEMPT ORDER.
SECOND, BECAUSE EMORY FILED THE ORIGINAL PETITION TO CONFIRM IN STATE COURT, THIS PETITION TO VACATE IS A COMPULSORY COUNTER CLAIM. SO EVEN IF YOU -- IF YOU BOUGHT DR. MURTAGH'S
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ARGUMENTS THAT THIS IS A SEPARATE CAUSE OF ACTION, A PETITION TO CONFIRM OR PETITION TO VACATE IS A SEPARATE CAUSE OF ACTION, THAT'S A COMPULSORY COUNTER CLAIM UNDER RULE 13. AND THERE IS A
NUMBER OF CASES THAT HAS HELD US -- THAT HAVE HELD AS SUCH. PROBABLY THE ONE THAT WILL BE MOST HELPFUL TO YOU, BECAUSE IT COLLECTS A NUMBER OF CASES, IS A CASE CALLED IN THE MATTER OF ARBITRATION BETWEEN INTERCARBON BERMUDA LIMITED AND CALTEX TRADING, AND THAT'S 146 F.R.D. 64. THAT'S A SOUTHERN DISTRICT
NEW YORK CASE, BUT IT COLLECTS A NUMBER OF COURT DECISIONS. THE COURT: FILED? MR. WOZNIAK: THE COURT: THE OTHER SIDE? MR. WOZNIAK: COPY. I CAN GIVE -- WELL, I CAN GIVE THEM MY LASTLY, THIS WAS NOT IN MY BRIEF, YOUR HONOR. NOW, THAT'S NOT IN YOUR BRIEF ALREADY
WELL, YOU GOT A COPY TO GIVE TO -- GIVE TO
IT'S MARKED, BUT, YES, I CAN GIVE IT TO THEM.
YOUR HONOR, AND THIS IS BRIEFED THOROUGHLY IN OUR PLEADINGS, JUST LIKE YOU HELD ON THE REMAND ORDER, THERE'S NO FEDERAL-COURT JURISDICTION HERE. THE CLAIMS IN THIS CASE, AT LEAST THE
ORIGINAL CLAIMS IN THIS CASE, WERE ALL STATE LAW CLAIMS. DR. MURTAGH CHOSE TO FILE HIS LAWSUIT IN STATE COURT. THE
PARTIES AGREED TO THE GEORGIA CIVIL PRACTICES ACT GOVERN DISCOVERY. ARBITRATOR DEANE EXPRESSLY STATED THAT HE WAS
SANCTIONING DR. MURTAGH UNDER THE STATE PROCEDURAL RULES, NOT FEDERAL RULES, AND EVEN THOUGH HE TRIES TO RECHARACTERIZE THAT UNITED STATES DISTRICT COURT OFFICIAL CERTIFIED TRANSCRIPT
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AS A FEDERAL RULE 37 OR A FEDERAL RULE 11 SANCTIONS, IT'S NOT WHAT IT WAS, AND DR. -- MR. DEANE REPEATEDLY SAID THAT. AND LASTLY, YOUR HONOR, IT REALLY DOESN'T MATTER BECAUSE THE CASE LAW HAS BEEN VERY CLEAR THAT UNDER SECTION TEN OF THE F.A.A., IF YOU'RE TRYING TO ESTABLISH FEDERAL-QUESTION JURISDICTION, THE FEDERAL ISSUE HAS TO APPEAR ON THE FACE OF THE PETITION. YOU CAN'T LOOK THROUGH THE PETITION TO WHAT WAS YOU CAN'T BE RELYING UPON A
ALLEGED IN THE UNDERLYING LAWSUIT. FEE MOTION.
YOU HAVE TO SHOW THAT THERE'S A SUBSTANTIAL
QUESTION OF FEDERAL LAW THAT HAS TO BE RESOLVED AS A PART OF THE MOTION TO VACATE, AND HE'S NOT DONE THAT AND HE CAN'T DO THAT. AS TO DIVERSITY JURISDICTION, DR. MURTAGH HAS TRIED TO PLEAD DIVERSITY JURISDICTION AS WELL. IN THE PETITION
DR. MURTAGH ACKNOWLEDGED THAT HE WAS A LONG-TIME RESIDENT OF GEORGIA, HE WAS A RESIDENT OF GEORGIA AT THE TIME HE FILED THE ORIGINAL STATE COURT ACTION IN 2004. HE PLEADS THAT HE HAD A
TEMPORARY JOB IN ARKANSAS AND THEN HE WENT TO ARKANSAS FOR A COUPLE OF MONTHS, LIVED IN AN APARTMENT THAT HIS EMPLOYER PROVIDED TO HIM, AND THEN HE RETURNED TO GEORGIA. AND IN FACT
HE PLEADS THAT HE WAS LIVING AND WORKING IN GEORGIA AT THE TIME HE FILED THE PETITION TO VACATE. WE'VE CITED A NUMBER OF COURT
CASES THAT HAVE SAID THAT THE TEMPORARY HIATUS WHEN YOU'RE IN ARKANSAS DOESN'T CREATE A NEW DOMICILE AND IT CERTAINLY DOESN'T CREATE DIVERSITY JURISDICTION WITH RESPECT TO THE PETITION TO VACATE. SO FOR ALL THREE OF THOSE REASONS, YOUR HONOR, WE
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BELIEVE THE PETITION TO VACATE MUST BE DISMISSED AND THERE'S NO REASONABLE GROUNDS ON WHICH TO KEEP IT HERE. THE COURT: NOW, WHAT IS THE THREE REASONS AGAIN? THE FIRST REASON, YOUR HONOR, IS THAT
MR. WOZNIAK:
THIS IS PART AND PARCEL OF THE STATE COURT ACTION THAT THE FULTON COUNTY SUPERIOR COURT STAYED, DID NOT DISMISS. THE
SECOND IS BECAUSE THE PETITION TO VACATE IS A COMPULSORY COUNTER CLAIM TO THE PETITION TO CONFIRM THAT WAS FILED IN FULTON COUNTY SUPERIOR COURT. AND, THIRD, A LACK OF FEDERAL JURISDICTION, NO
DIVERSITY OR FEDERAL-QUESTION JURISDICTION. THE COURT: WHAT WAS THE FIRST ONE AGAIN? THIS IS THE FACT THAT JUDGE TUSAN STAYED
MR. WOZNIAK:
THE ORIGINAL CLAIMS AND RETAINED JURISDICTION OVER THEM AND DID NOT DISMISS THEM. THIS WAS -- THIS IS ONE OF THE THINGS THAT
YOU CITED IN YOUR REMAND ORDER THAT ACTUALLY THE -- LET ME SEE IF I CAN FIND THE EXACT LANGUAGE YOU USED. THE COURT: WELL, I DON'T REMEMBER ALL THAT. JUST
ANSWER MY QUESTION, WHAT WAS THAT AGAIN? MR. WOZNIAK: THAT THE PETITION TO VACATE IS AN
INTEGRAL PART OF THE STATE COURT ACTION. THE COURT: OKAY. ALL RIGHT, SIR.
MR. WOZNIAK: NEW CAUSE OF ACTION. THE COURT:
YOU CAN'T SEPARATE IT OUT AND CREATE A
YES, SIR. THANK YOU, YOUR HONOR.
MR. WOZNIAK:
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THE COURT: MR. HENDERSON.
MIGHT AS WELL HEAR FROM BOTH DEFENDANTS,
MR. EICHELBERGER: EMORY'S ARGUMENTS. THE COURT: HUH?
ACTUALLY, YOUR HONOR, WE JOIN IN
MR. EICHELBERGER: THE COURT:
WE JOIN IN EMORY'S ARGUMENTS.
YOU DON'T HAVE ANY SEPARATE ARGUMENT? NOTHING ADDITIONAL.
MR. EICHELBERGER: THE COURT:
ALL RIGHT, SIR. IF I MIGHT, YOUR HONOR?
YES, SIR. I'M MICK HARRISON FOR DR. MURTAGH. THE
MR. HARRISON:
REASONS EMORY GIVES FOR DISMISSAL OF THE MOTION TO VACATE THE ARBITRATION AWARD ARE NOT LEGALLY CORRECT. THERE IS
FEDERAL-COURT JURISDICTION HERE FOR AT LEAST TWO REASONS, BUT LET ME GO THROUGH EMORY'S POINTS ONE BY ONE. TERMS OF BACKGROUND -THE COURT: NOW, YOUR FIRST POINT IS THAT THERE IS FIRST OF ALL, IN
FEDERAL-LAW JURISDICTION, NOT DIVERSITY. MR. HARRISON: FEDERAL-QUESTION JURISDICTION FIRST,
FEDERAL-QUESTION JURISDICTION UNDER 28 U.S.C. 1331 AND ALSO DIVERSITY UNDER 1332. THOSE ARE THE TWO BASES. THERE'S A
CONCEPTUAL DIVIDE BETWEEN THE PARTIES HERE ON THE NATURE OF THIS ACTION. THIS IS A FEDERAL ARBITRATION. THIS IS NOT AN
ARBITRATION DONE UNDER STATE LAW.
IF YOU LOOK AT THE
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ARBITRATION AGREEMENT WHICH IS IN EVIDENCE, I BELIEVE IT'S SECTION 13, THE ARBITRATION CLAUSE VERY CLEARLY SAYS THIS ARBITRATION IS PURSUANT TO THE FEDERAL ARBITRATION ACT. NOW,
THAT FEDERAL ARBITRATION ACT, AS YOUR HONOR KNOWS, PROVIDES FOR MOTIONS TO VACATE AND MOTIONS TO CONFIRM AND OTHER TYPES OF MOTIONS. IN PARTICULAR, TITLE NINE OF THE U.S. CODE, SECTION
TEN, PROVIDES FOR A MOTION TO VACATE TO A FEDERAL COURT ASSERTING THE GROUNDS PROVIDED FOR IN THAT STATUTE IF THE ARBITRATION IS ONE CONTROLLED BY FEDERAL LAW. IS AN ARBITRATION CONTROLLED BY FEDERAL LAW. THE COURT: WELL, PARDON ME, SIR. YES. IN THIS CASE THIS
WHAT WERE Y'ALL DOING -- WHAT WERE YOU
DOING IN THE STATE COURT IN THE FIRST PLACE IF THIS WAS A FEDERAL -- FEDERAL JURISDICTION? MR. HARRISON: YES, JUDGE. DR. MURTAGH FILED CLAIMS
RELATED TO ONGOING TORTS HE PERCEIVED BEING COMMITTED BY EMORY. THIS WAS FOLLOWING HIS SETTLEMENT OF HIS EARLIER LITIGATION. DR. MURTAGH ACTUALLY OFFERED TO ARBITRATE TO EMORY PRIOR TO FILING THAT LAWSUIT IN STATE COURT. EMORY DECLINED TO ARBITRATE SO
AT THAT POINT, SO DR. MURTAGH THEN PROCEEDED TO FILE HIS STATE CLAIMS. HE FILED IN STATE COURT THERE BECAUSE HIS CLAIMS WERE THEY WERE TORTS. SO -- AND HE
BASICALLY STATE LAW IN NATURE.
WAS, I GUESS, CONTENT TO PROCEED TO LITIGATE THOSE CLAIMS. EMORY AT THAT POINT DECIDED TO CHANGE THEIR POSITION AND INSIST UNITED STATES DISTRICT COURT OFFICIAL CERTIFIED TRANSCRIPT
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ON ARBITRATION EVEN THOUGH THEY HAD DECLINED PRIOR, AND SO THEY INSISTED ON ARBITRATING, AND THE PARTIES DO HAVE AN ARBITRATION AGREEMENT. IT IS PART OF THE SETTLEMENT. SO THE ARBITRATION DR. MURTAGH
ISSUE WAS RAISED WITH JUDGE TUSAN AT THE TIME.
POINTED OUT THAT HE BELIEVED HIS CLAIMS DID NOT FALL UNDER THE ARBITRATION CLAUSE. EMORY DISAGREED. THE JUDGE DECIDED TO NOW, THE
ORDER ARBITRATION, SO THE PARTIES WENT TO ARBITRATION. FACT THAT THE JUDGE -THE COURT:
NOW, THE JUDGE ORDERED ARBITRATION.
IT
WAS NOT A CONSENSUAL ARBITRATION. MR. HARRISON: JUDGE. ABSOLUTELY RIGHT. ABSOLUTELY RIGHT,
HOWEVER, THE NATURE OF THE ARBITRATION BEING ORDERED CAN
ONLY BE THAT WHICH THE PARTIES AGREED TO IN THEIR CONTRACT TO ARBITRATE. THE JUDGE HAS NO POWER TO ARBITRATE BEYOND THE SO WHAT WAS ORDERED WAS
PARTIES' ARBITRATION AGREEMENT.
ARBITRATION CONSISTENT WITH THE PARTIES' ARBITRATION CLAUSE. NOW, THAT HAPPENED TO BE AN ARBITRATION UNDER THE FEDERAL ARBITRATION ACT. SO THE BIG CONSENSUAL DIVIDE BETWEEN THE
PARTIES HERE IS, ARE WE TALKING ABOUT A NEW ACTION IN OUR MOTION TO VACATE FOR DR. MURTAGH UNDER THE FEDERAL ARBITRATION ACT, WHICH I'VE CITED YOUR HONOR CASE LAW WHICH SAYS THAT UNDER THE FEDERAL ARBITRATION ACT, EVEN THOUGH WHEN YOU FILE A MOTION TO VACATE, IT'S ANALOGOUS TO A COMPLAINT. IT'S ANALOGOUS TO A NEW
ACTION BECAUSE CONGRESS WANTED TO EXPEDITE ARBITRATION ISSUES. THE NEW ACTION IS DECIDED BY WAY OF MOTIONS PRACTICE. IT'S SORT
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OF AN ANOMALY IN FEDERAL PROCEDURE.
YOU FILE A -- WHAT AMOUNTS
TO A COMPLAINT TO VACATE AN ARBITRATION AWARD, IF YOU CALL IT A MOTION TO VACATE, IT'S HANDLED BY YOUR HONOR UNDER THE PROCEDURE FOR MOTIONS, ESSENTIALLY MOTIONS FOR SUMMARY JUDGMENT OR MOTIONS TO DISMISS, DEPENDING ON THE ISSUE. SO WHEN YOU DO THAT, THE
LAW IS CLEAR YOU'RE FILING A NEW ACTION AND IT'S NOT TIED TO ANY UNDERLYING LITIGATION. IN FACT, YOU CAN DO THIS WHETHER YOU HAD
AN UNDERLYING LITIGATION OR NOT BECAUSE IF THE PARTIES AGREED TO THEIR ARBITRATION AGREEMENT LIKE DR. MURTAGH FIRST SUGGESTED, THERE NEVER WOULD HAVE BEEN A LITIGATION. BUT EVEN SO HAD THE
ARBITRATION PROCEEDED TO A DECISION, AS IN THIS CASE, AN AWARD FROM THE ARBITRATOR, THE PARTIES RETAIN THEIR RIGHTS UNDER 9 U.S.C. SECTION TEN OR, IN EMORY'S CASE, SECTION NINE, TO CONFIRM OR VACATE UNDER THE FEDERAL ARBITRATION ACT. SO I THINK THE FIRST THRESHOLD QUESTION FOR YOUR HONOR TO DECIDE HERE, AND IT'S NOT ONE YOUR HONOR PROBABLY SEES EVERY DAY, IS WHAT EXACTLY IS THE LEGAL ANIMAL THAT'S BEFORE YOU AND -- THE LEGAL ANIMAL. THE COURT: I BEG YOUR PARDON? THE LEGAL -- WHAT TYPE OF LEGAL ACTION
MR. HARRISON: ARE WE TALKING ABOUT. THE COURT:
ALL RIGHT. AND I THINK THE SHORT ANSWER IS WE'RE IT'S A LAWSUIT DEFINED BY FEDERAL
MR. HARRISON:
TALKING ABOUT A NEW LAWSUIT. LAW, BY FEDERAL STATUTE.
IT'S CALLED A MOTION, BUT IT'S STILL A
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COMPLAINT.
THAT'S WHAT THE FEDERAL ARBITRATION ACT SAYS.
SO IN
TERMS OF LET'S TAKE THE JURISDICTION -- THE DIVERSITY-JURISDICTION QUESTION. IT'S WELL-SETTLED LAW. I
THINK BOTH PARTIES AGREE THAT WHEN YOUR HONOR LOOKS AT WHETHER THERE'S DIVERSITY -THE COURT: JURISDICTION? MR. HARRISON: I'M SORRY. THE COURT: NO. I THOUGHT YOU STARTED OFF WITH YEAH, FEDERAL-DIVERSITY JURISDICTION. YOU ARE FINISHED ARGUING YOUR FEDERAL
FEDERAL, JUST FEDERAL -MR. HARRISON: THE COURT: I'M SORRY. FEDERAL QUESTION?
YEAH. LET ME FINISH MY THOUGHTS ON THAT, ON
MR. HARRISON:
JUDGE, SO I DON'T WANT TO CREATE CONFUSION IN THE RECORD.
THE FEDERAL-QUESTION ISSUE EMORY INDICATED THAT THERE WERE ONLY STATE LAW CLAIMS UNDERLYING IN THE ARBITRATION. CORRECT. THAT'S NOT
DR. MURTAGH DID AMEND A FEDERAL LAW CLAIM IN THE THE
ARBITRATION WITH PERMISSION OF THE ARBITRATOR, OKAY.
ARBITRATOR GAVE THE PARTIES A CHANCE TO AMEND BEFORE THE ARBITRATION PROCEEDED. DR. MURTAGH -- WE FILED THIS CLAIM AS HE AMENDED THE CLAIM UNDER
PART OF OUR -- ONE OF OUR EXHIBITS.
31 U.S.C. 3730(H) AS IN HARRISON, AND THAT'S THE WHISTLE-BLOWER PROTECTION OF THE FEDERAL FALSE CLAIMS ACT. HE WAS ALLEGING SO THAT
RETALIATION FOR HAVING BROUGHT A FALSE CLAIMS LAWSUIT.
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FEDERAL CLAIM WAS IN THE ARBITRATION UNDERLYING THIS ARBITRATION AWARD, SO THERE IS THAT. NOW, YOUR HONOR MAY HAVE NOTICED THAT DR. MURTAGH BROUGHT TO THE COURT'S ATTENTION AN ELEVENTH CIRCUIT CASE CALLED BALTIN, AND THE BALTIN CASE SAYS THAT -- LEAST AS OF THE TIME OF THE BALTIN DECISION, THE ELEVENTH CIRCUIT HAD NOT YET DECIDED WHETHER FEDERAL JURISDICTION IS CREATED OR IS PRESENT WHEN THERE IS AN UNDERLYING FEDERAL CLAIM IN THE ARBITRATION. IN OTHER
WORDS, PUTTING ASIDE WHAT FEDERAL ISSUES APPEAR ON THE FACE OF THE MOTION TO VACATE, BUT LOOKING UNDER THE MOTION TO VACATE TO THE ARBITRATION ITSELF, WHAT BALTIN SAYS IS THE ELEVENTH CIRCUIT HAS YET TO DECIDE EITHER WAY WHETHER IF THERE IS A FEDERAL CLAIM IN THE UNDERLYING ARBITRATION, IS THAT SUFFICIENT TO GIVE YOUR HONOR FEDERAL-QUESTION JURISDICTION UNDER 28 U.S.C. 1331. NOW, IT'S OUR POSITION -- AND I KNOW THE COURTS AGREE, OTHER COURTS DISAGREE, THERE'S A SPLIT -- THAT AN UNDERLYING FEDERAL CLAIM IN THE ARBITRATION IS SUFFICIENT TO GIVE YOUR HONOR FEDERAL-QUESTION JURISDICTION. AND IT MAY STILL BE AN
ISSUE OF FIRST IMPRESSION IN THIS CIRCUIT WHETHER THAT'S TRUE OR NOT, BUT WE TAKE THE POSITION THAT IT IS TRUE. PUTTING ASIDE
THE UNDERLYING FEDERAL CLAIM, WHICH IS THE FALSE CLAIMS ACT, WHISTLE-BLOWER CLAIM, THERE ARE ADDITIONAL BASES FOR FINDING FEDERAL-QUESTION JURISDICTION. ONE OF THE QUESTIONS TO BE
DETERMINED HERE IS WHETHER THE ARBITRATOR HAD A BIAS THAT WAS ESSENTIALLY OF SUCH A NATURE THAT THE ARBITRATOR SHOULD HAVE UNITED STATES DISTRICT COURT OFFICIAL CERTIFIED TRANSCRIPT
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RECUSED.
AND THE ARBITRATOR HERE, AS YOUR HONOR MAY KNOW, WAS HE DECLINED TO RECUSE. AND DR. MURTAGH ASKED
ASKED TO RECUSE.
THE PARTIES TO REFER THE MATTER TO THE AMERICAN ARBITRATION ASSOCIATION TO MAKE THE DECISION ON RECUSAL PURSUANT TO THE TRIPLE A RULES, AND THE PARTIES REFUSED. THE ARBITRATOR REFUSED
TO FORWARD THAT DECISION TO THE TRIPLE A, BUT DECIDED IT HIMSELF AND DECLINED TO RECUSE. NOW, DR. MURTAGH'S FEDERAL QUESTION HERE IS WHETHER HE WAS DENIED AN UNBIASED DECISION-MAKER BECAUSE -- AND YOUR HONOR MAY NOT RECALL THE DETAILS, BUT THE ARBITRATOR TURNS OUT TO HAVE BEEN A FORMER U.S. ATTORNEY WHO ACTUALLY REPRESENTED AS U.S. ATTORNEY SOME OF THE FEDERAL DEFENDANTS IN ACTIONS BROUGHT BY DR. MURTAGH IN THE EARLIER LITIGATION. THE COURT: WHAT OTHER LITIGATION? IT WAS THE LITIGATION OF SEVERAL CLAIMS
MR. HARRISON:
BY DR. MURTAGH LEADING TO HIS SETTLEMENT WHICH HAD THE ARBITRATION CLAUSE WHICH LED TO THE ARBITRATION. SO THE
LAWSUITS BY DR. MURTAGH THAT WERE SETTLED, SOME OF THOSE THE FUTURE ARBITRATOR HAD ACTUALLY BEEN COUNSEL FOR THE OPPOSING PARTY TO DR. MURTAGH, AND THAT WAS NOT FULLY DISCLOSED WHEN DR. MURTAGH BEGAN THE ARBITRATION. WHEN WE FIGURED IT OUT,
WHICH WAS AFTER I CAME ON -- I WAS NOT DR. MURTAGH'S INITIAL LAWYER -- WE MADE THE MOTION TO RECUSE, ASKED FOR A FULL DISCLOSURE. THE ARBITRATOR GAVE WHAT WE BELIEVE WAS A PARTIAL
ADDITIONAL DISCLOSURE, BUT DECLINED TO RECUSE. UNITED STATES DISTRICT COURT OFFICIAL CERTIFIED TRANSCRIPT
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NOW, THERE'S AN IMPORTANT QUESTION HERE. TALKING ABOUT THE DUE PROCESS OF RIGHT TO AN
WHY ARE WE
UNBIASED DECISION-MAKER, A CONSTITUTIONAL QUESTION, CLEARLY A FEDERAL LAW QUESTION? TO AN ARBITRATION? WHY ARE WE TALKING ABOUT THAT IN REGARD
ISN'T THAT JUST A PRIVATE, YOU KNOW, AND I
PROCEEDING THAT DOESN'T HAVE ANY STATE ACTION INVOLVED? THINK EMORY WOULD ARGUE THAT. CASE.
AND I THINK NORMALLY THAT IS THE
BUT HERE WE HAVE A COMPLICATION, AND THAT IS THAT EMORY
HAS ARGUED TO YOUR HONOR IN THE RELATED CASE THAT EMORY MENTIONED THAT THIS ARBITRATION CAME FROM AN ORDER OF THE STATE COURT. THE STATE COURT RETAINED JURISDICTION. THE STATE COURT
ENDED UP DISMISSING THE CLAIMS IN ARBITRATION AS A SANCTION, AND THE STATE COURT IN EMORY'S VIEW RETAINS JURISDICTION TO THIS DAY OVER THESE MATTERS. NOW, THE QUESTION THAT RAISES IS, WAS THIS ARBITRATION -AND IT GETS BACK TO THE CONCEPT I MENTIONED. IS THIS A STATE
ARBITRATION ORDERED BY THE STATE COURT OR IS IT A FEDERAL ARBITRATION ACT ARBITRATION? SO I THINK WHAT WE'RE MAKING --
THE ARGUMENT WE'RE MAKING HERE ON DUE PROCESS IS AN ALTERNATIVE ONE, YOUR HONOR. IT'S A CONTINGENT ARGUMENT. IN OTHER WORDS,
IF YOUR HONOR ADOPTS OUR POINT OF VIEW THAT THIS IS A FEDERAL ARBITRATION ACT COMPLAINT, A NEW LEGAL ACTION, THEN YOUR HONOR DECIDES THE JURISDICTIONAL QUESTIONS BASED ON DIVERSITY AT THE TIME WE FILED THE MOTION TO VACATE AND BASED ON FEDERAL QUESTIONS FROM THE FACE OF THE MOTION TO VACATE, OR UNDER UNITED STATES DISTRICT COURT OFFICIAL CERTIFIED TRANSCRIPT
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BALTIN, AN UNDERLYING FEDERAL CLAIM. ON THE OTHER HAND, IF EMORY IS CORRECT, AS YOUR HONOR DECIDED ON THE REMAND MOTION, THAT SOMEHOW THIS ARBITRATION IS STILL A CREATURE OF THE STATE COURT LITIGATION, THEN WE DO HAVE A LIVE DUE PROCESS ISSUE THAT CREATES A FEDERAL-QUESTION JURISDICTION UNDER 1331 HERE, WHICH IS, WAS DR. MURTAGH DENIED AN UNBIASED DECISION-MAKER UNDER THE CONSTITUTION. SO EITHER
WAY YOU GO, OUR POSITION IS THERE'S A FEDERAL QUESTION TO BE DECIDED, IF THIS IS A -- AN INDEPENDENT ACTION UNDER THE FEDERAL ARBITRATION ACT, AS WE SAY, THEN THERE'S DIVERSITY BECAUSE DR. MURTAGH WAS NO LONGER A DOMICILE IN GEORGIA WHEN HE FILED THIS MOTION TO VACATE, AND WE -- I'LL EXPLAIN THOSE FACTS IN A MOMENT. ON THE OTHER HAND, THERE ARE FEDERAL QUESTIONS, NOT ALL
OF WHICH I MENTIONED. FOR EXAMPLE, EMORY MADE A MOTION IN THE ARBITRATION TO SANCTION DR. MURTAGH. IT WAS BASED ON ALLEGED RULE 11 THEY
VIOLATIONS, EVEN THOUGH THEY DIDN'T CALL IT RULE 11.
CALLED IT FILING FRIVOLOUS PLEADINGS, AND IT WAS BASED ON A DISCOVERY ABUSE. THE ARBITRATOR FOUND A DISCOVERY ABUSE, BUT NOW, THE PARTIES AGREED THAT AND SO
DID NOT FIND FRIVOLOUS FILINGS.
THIS ARBITRATION WOULD BE CONTROLLED BY FEDERAL LAW.
ISSUES OF FRIVOLOUS FILINGS WOULD BE CONTROLLED BY THE FEDERAL LAW OF FRIVOLOUS FILINGS, WHICH IS FEDERAL RULE 11. THE COURT: COURTS? UNITED STATES DISTRICT COURT OFFICIAL CERTIFIED TRANSCRIPT BUT THIS IS ALREADY OVER IN THE STATE
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MR. HARRISON:
NO, SIR.
THE -- THERE ARE TWO -- TWO ONE
SANCTIONS ISSUES SORT OF HANGING IN THIS CASE, YOUR HONOR. IS IN THE STATE COURT, WHICH I THINK IS THE ONE YOU'RE REFERENCING.
THE OTHER IS ISSUED BY THE ARBITRATOR NOW BEFORE THE STATE COURT
YOUR HONOR AS PART OF THE MOTION TO VACATE. SANCTION WAS REALLY A CONTEMPT FINDING.
IT WAS A FINDING OF THE
STATE COURT THAT IN THIS -- IN THE COURT'S VIEW DR. MURTAGH HAD NOT COMPLIED WITH AN INJUNCTION THAT HE AND HIS LAWYER HAD AGREED ABOUT CERTAIN COMMUNICATIONS REGARDING EMORY. HOWEVER,
IN THE ARBITRATION AN ENTIRELY DIFFERENT ISSUE AROSE BASED ON EMORY'S MOTION TO SANCTION DR. MURTAGH IN THE ARBITRATION ALLEGING HE HAD NOT PRODUCED CERTAIN DOCUMENTS IN DISCOVERY AND THAT HE HAD FILED FRIVOLOUS FILINGS. NOW, THE ARBITRATOR DID
NOT AGREE WITH EMORY THAT DR. MURTAGH HAD FILED FRIVOLOUS FILINGS. SO ESSENTIALLY DR. MURTAGH IS A PREVAILING PARTY ON
THAT MOTION FOR SANCTIONS FOR FRIVOLOUS FILINGS BECAUSE HE DEFEATED IT. IT WOULD BE LIKE IN YOUR COURT, YOUR HONOR, IF I
FILED A MOTION AGAINST EMORY UNDER RULE 11, AND YOUR HONOR DENIED THE MOTION, EMORY WOULD BE A PREVAILING PARTY ON MY RULE 11 MOTION. NOW, UNDER RULE 11 THE PREVAILING PARTY IS ENTITLED TO ATTORNEY'S FEES. THE JUDGE HAS TO MAKE A DECISION, BUT IT'S WE REQUESTED THAT OF THE
SOMETHING THAT ONE CAN REQUEST. ARBITRATOR. IT WAS DENIED.
AND THE ARBITRATOR BASICALLY DIDN'T SO, YOU KNOW, THE ISSUE
APPLY FEDERAL RULE 11 TO THE QUESTION.
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HERE IS -- ONE OF THE FEDERAL-QUESTION ISSUES HERE IS, DID THE ARBITRATOR MISAPPLY FEDERAL LAW OR WHAT MIGHT BE CALLED FAIL TO APPLY FEDERAL LAW AFTER IT WAS BROUGHT TO HIS ATTENTION. NOW, SO, YOUR HONOR, THE FIRST -- I GUESS THE FIRST -WELL, LET ME -- IF I MAY, BEFORE I FORGET, LET ME EXPLAIN WHY WE THINK THERE IS DIVERSITY JURISDICTION -- DIVERSITY JURISDICTION HERE UNDER 1332. THE COURT: ALL RIGHT, SIR. IT'S NOT A TYPICAL CASE. YOU HAVE TO
MR. HARRISON:
FOLLOW THE FACTS PRETTY CLOSELY.
AND THE SHORT ANSWER IS THAT
WHEN DR. MURTAGH SETTLED WITH EMORY, HE WAS NO LONGER EMPLOYED WITH EMORY AS A CONDITION OF THE SETTLEMENT. WHILE TO FIND EMPLOYMENT. IT TOOK HIM A
HE DID LIVE IN GEORGIA WHEN HE WORKED
FOR EMORY, AND EARLY 2008, BECAUSE HE DID NOT HAVE AN INCOME, HE HAD TO ABANDON HIS GEORGIA APARTMENT. IN MAY OF 2008 HE APPLIED
AND RECEIVED A JOB IN ARKANSAS AT FAYETTEVILLE AS A DOCTOR, MEDICAL DOCTOR. HE WAS HOPING IT WOULD BECOME PERMANENT. IT
TURNED OUT TO BE TEMPORARY. IN ARKANSAS. OKAY.
HE MOVED TO ARKANSAS AND HE WORKED
WHEN THAT JOB ENDED PREMATURELY AND
SOMEWHAT TO HIS SURPRISE UNDER CIRCUMSTANCES WHICH ARE UNDER REVIEW, HE THEN DID NOT RETURN TO GEORGIA. HE SPENT TIME LOOKING FOR EMPLOYMENT, AND THAT TOOK HIM TO INDIANA, MY HOME STATE, TO OHIO WHERE HE HAS FAMILY, AND TO WASHINGTON D.C. HIS GOAL HAS BEEN FOR SOME TIME TO LIVE AND HE DID NOT -- HE GOT A JOB
WORK IN OHIO WHERE HIS FAMILY IS.
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OFFER IN OHIO, BUT IT WAS -- IT WAS THEN WITHDRAWN, SO IT DIDN'T WORK OUT. GEORGIA. HE THEN OUT OF NECESSITY TOOK A TEMPORARY JOB BACK IN IT WAS ADMITTEDLY TEMPORARY ON ITS FACE. HE DID THAT
SIMPLY TO MAINTAIN INCOME. ON MAY 13TH, 2009.
THIS WAS IN -- HE STARTED THAT JOB SO THE
IT HAD BEEN OFFERED PRIOR TO THAT.
SEQUENCE WOULD -- BE KEEP IN MIND, YOUR HONOR, THAT WE FILED OUR MOTION TO VACATE ON MAY THE 4TH OF 2009, SO WHICH WOULD BE THE TRIGGER DATE FOR YOUR HONOR DETERMINING DIVERSITY, MAY THE 4TH OF 2009, IF YOUR HONOR ACCEPTS OUR VIEW THAT THIS IS A NEW ACTION UNDER THE FEDERAL ARBITRATION ACT. SO HE BASICALLY LOST
HIS ARKANSAS JOB, WAS LOOKING FOR EMPLOYMENT. HE HAD A JOB OFFER IN OHIO WHICH WAS THEN REVOKED OR DECLINED OR WHATEVER YOU WANT TO CALL IT. JOB -- TEMPORARY JOB IN GEORGIA. JOB BASICALLY. HE APPLIED FOR A
IT WAS -- HE WAS PROMISED THE
THIS WOULD HAVE BEEN IN LATE APRIL, I BELIEVE. IT WAS ON ITS
HIS JOB IN GEORGIA DID NOT START UNTIL MAY 13TH. FACE TEMPORARY.
WHEN THAT JOB ENDED AS PREDICTED, HE OBTAINED A ALL THESE ARE MEDICAL
JOB IN PENNSYLVANIA IN SEPTEMBER OF 2009. DOCTOR POSITIONS.
HE HAS SINCE WORKED IN A NUMBER OF MEDICAL
DOCTOR POSITIONS AT HOSPITALS, NONE IN GEORGIA AFTER THAT POINT IN TIME, AND IS NOW IN A POSITION IN OHIO WHICH IS SORT OF THE JOB HE'S BEEN SEARCHING FOR FOR A LONG TIME, IS NOW LIVING IN THE STATE WHERE HE HAS FAMILY AND WORKING THERE FULL TIME, APPROXIMATELY FULL TIME. SO HIS -- HIS INTENT AFTER HE LOST HIS
ABILITY TO MAKE MONEY IN GEORGIA AND HE MOVED TO ARKANSAS WAS TO UNITED STATES DISTRICT COURT OFFICIAL CERTIFIED TRANSCRIPT
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MAKE ARKANSAS HIS HOME AND WORK THERE PERMANENTLY. WORK OUT.
IT DIDN'T
HE THEN SOUGHT ANOTHER JOB WHEREVER HE COULD FIND IT. IT WAS
IT DID TAKE HIM BACK TEMPORARILY TO GEORGIA, ADMITTEDLY. A TEMPORARY JOB. HE THEN CONTINUED TO LOOK FOR PERMANENT
POSITIONS, WORKED THROUGH A NUMBER OF MEDICAL JOBS AND NOW SETTLED IN OHIO. SO THAT'S THE SHORT VERSION OF A LONG STORY
ABOUT DR. MURTAGH'S TRAVEL SINCE HIS SETTLEMENT WITH EMORY AND HIS LOSS OF INCOME. SO I BELIEVE EMORY ARGUES THAT THE TRIGGER DATE FOR DIVERSITY JURISDICTION AND YOUR HONOR'S RULING ON THAT IS WAY BACK WHEN THE STATE COURT LAWSUIT WAS FILED BECAUSE THEY SEE THIS ALL AS SORT OF ONE LITIGATION, BUT UNDER THE FEDERAL LAW THAT'S JUST NOT THE CASE. THE FEDERAL ARBITRATION ACT
RECOGNIZES THAT A MOTION TO VACATE IS AN INDEPENDENT ACTION DISTINCT FROM ANY PRIOR LITIGATION. IT IS THE ONLY ACTION
PENDING BEFORE YOUR HONOR FOR WHICH THERE IS A JURISDICTIONAL CHALLENGE, AND IT'S THAT -- THE FILING OF THAT PENDING ACTION WHICH -- FOR WHICH THE JURISDICTIONAL CHALLENGE IS BROUGHT, THAT FILING DATE IS YOUR TRIGGER FOR DETERMINING DIVERSITY JURISDICTION. YOUR HONOR, JUST A NOTE ON THE ISSUE OF THE DUE PROCESS AND THE BIASED DECISION-MAKER. IF YOU ADOPT EMORY'S VIEW THAT THIS
IS ESSENTIALLY CONTINUATION OF A STATE COURT LITIGATION, THEN WE BELIEVE THERE WOULD BE STATE ACTION AND A DUE PROCESS CLAIM, AND IF THAT IS THE CASE, THE CONTROLLING LAW IS FEDERAL, IT WOULD BE UNITED STATES DISTRICT COURT OFFICIAL CERTIFIED TRANSCRIPT
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THE SUPREME COURT DECISION WE CITED IN COMMONWEALTH COATINGS. BELIEVE EMORY NOTES IT IN THEIR BRIEF AS WELL. THE COURT: SUPREME COURT DECISION ABOUT WHAT?
MR. HARRISON:
THE -- THE MORE STRINGENT STANDARD THAT
APPLIES TO ARBITRATORS, EVEN MORE STRINGENT THAN FEDERAL JUDGES, WHEN THE ISSUE OF A BIASED OR POTENTIAL CONFLICT OF INTEREST ARISES, AND THE QUESTION IS SHOULD THE ARBITRATOR RECUSE OR NOT. IT'S A QUESTION OF FEDERAL LAW. IT'S DEFINED IN COMMONWEALTH SO WHAT WE'RE SAYING IS
COATINGS, THAT SUPREME COURT DECISION.
IF YOU GET TO THAT ISSUE, IF YOUR HONOR FINDS THAT THIS IS A STATE COURT-RELATED ARBITRATION AND, THEREFORE, THERE IS STATE ACTION AND WE CAN ASSERT DUE PROCESS, IF YOU GET THAT FAR, THEN THE LAW TO BE APPLIED IS FEDERAL AS TO WHETHER THE JUDGE -- THE ARBITRATOR SHOULD HAVE RECUSED, AND THAT WOULD BE JURISDICTION UNDER 1331 FOR THIS MOTION TO VACATE. THAT'S ONLY IF YOU ACCEPT
EMORY'S VIEW THAT THIS IS SOMEHOW A CONTINUATION OF THE STATE LITIGATION. WE DON'T ACCEPT THAT, THAT VIEW.
YOUR HONOR, THE -- AS, I GUESS, A CONCLUDING NOTE, EMORY ASSERTS THAT NOT ONLY SHOULD OUR MOTION TO VACATE BE DISMISSED, BUT THAT WE HAD NO CONCEIVABLE BASIS IN LAW OR FACT TO BRING IT AND, THEREFORE, THAT COUNSEL SHOULD BE SANCTIONED. A TYPICAL AREA OF LAW. THIS IS NOT
ARBITRATION -- FEDERAL ARBITRATION ACT
CASES ARE FAIRLY COMPLEX, PARTICULARLY WHEN THEY ARISE OUT OF STATE COURT LITIGATION. THE ISSUES OF JURISDICTION ARE NOT
SIMPLE ONES, AND YOU HAVE TO DECIDE QUESTIONS THAT WE'RE NOW UNITED STATES DISTRICT COURT OFFICIAL CERTIFIED TRANSCRIPT
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TALKING ABOUT WHICH WOULD BE, LIKE, IS THIS ACTION A NEW FEDERAL ACTION, IS IT A CONTINUATION OF A STATE LITIGATION. I THINK THE
ANSWER'S CLEAR UNDER FEDERAL LAW, BUT, I -- YOU KNOW, I DON'T THINK EMORY'S POSITION IS FRIVOLOUS. I THINK IT'S WRONG, BUT I THINK
I'M NOT ASKING TO SANCTION THEM BECAUSE THEY MADE IT.
WE HAVE TO BE CAREFUL IN THIS BUSINESS TO NOT RAISE THE SPECTER OF SANCTIONS PREMATURELY OR TOO OFTEN BECAUSE IT HAS -- IT RUNS THE RISK OF CHILLING LEGITIMATE ADVOCACY ON QUESTIONS THAT HAVEN'T BEEN RESOLVED AND ARE LEGITIMATE QUESTIONS. WHAT WE
HAVE HERE ARE SOME LEGITIMATE SOMEWHAT COMPLEX FEDERAL PROCEDURAL QUESTIONS ABOUT HOW DOES THE COURT TREAT A MOTION TO VACATE UNDER THE FEDERAL ARBITRATION ACT ARISING OUT OF A STATE LITIGATION. IT'S SIMPLE. WE THINK THE ANSWER IS CLEAR, BUT WE DON'T THINK IT TAKES SOME HOMEWORK. AND IT'S NOT -- THIS IS THANK YOU,
NOT A CASE WHERE SANCTIONS SHOULD BE AN ISSUE. JUDGE. THE COURT: ALL RIGHT, SIR.
MR. WOZNIAK: REPLY.
YOUR HONOR, A COUPLE OF COMMENTS IN IT'S ONLY
THIS REALLY IS NOT A COMPLICATED CASE.
COMPLICATED BECAUSE DR. MURTAGH AND HIS COUNSEL ARE TORTURING EVERY CASE IN THE STATUTE TO TRY TO SHOEHORN SOMETHING THAT DOESN'T EXIST. THE COURT: I BEG YOUR PARDON? THIS CASE IS NOT COMPLICATED.
MR. WOZNIAK:
MR. HARRISON MIGHT LIKE TO MAKE IT COMPLICATED, BUT IT'S NOT. UNITED STATES DISTRICT COURT OFFICIAL CERTIFIED TRANSCRIPT
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THE ISSUE BEFORE YOU IS ACTUALLY VERY SIMPLE.
IT IS TRUE THAT
BECAUSE THE SETTLEMENT AGREEMENT INVOLVED INTERSTATE COMMERCE, THE FEDERAL ARBITRATION ACT APPLIES TO IT. THE TRIP -- THE
ARBITRATION AGREEMENT ITSELF, THOUGH, SAYS TRIPLE A RULES ARE THE PROCEDURAL RULES THAT'LL APPLY, NOT FEDERAL RULES OF CIVIL PROCEDURE. YOU DON'T ADOPT THE FEDERAL RULES OF CIVIL PROCEDURE
INTO AN ARBITRATION AGREEMENT SIMPLY BECAUSE THE F.A.A. IS APPLICABLE. ALL THE F.A.A. DOES IS PUTS ARBITRATION AGREEMENTS THERE'S A
ON THE SAME AND EQUAL FOOTING AS ALL THEIR CONTRACTS.
LONG LINE OF CASES, INCLUDING CASES WE'VE CITED IN OUR BRIEF, THAT THE F.A.A. DOES NOT CREATE A FEDERAL JURISDICTIONAL STANDARD. IT DOES NOT. IT SIMPLY ALLOWS AND REQUIRES BOTH THE
FEDERAL AND THE STATE COURTS TO PUT ARBITRATION AGREEMENTS ON THE SAME FOOTING AS OTHER CONTRACTS, AND THAT WAS TO REVERSE THE LONG-STANDING HOSTILITY THAT HAD BEEN SHOWN BY THE COURTS TO ARBITRATION AGREEMENTS. THAT'S ALL IT DOES. SO THERE'S NO THERE
FEDERAL LAW THAT'S CREATED AS A RESULT OF THE SANCTIONS.
IS NO REQUIREMENT THAT THE ARBITRATOR USE RULE 37 OR RULE 11. THAT'S JUST ALL MADE UP. WHAT HAPPENED. THE ARBITRATOR DEALT WITH MR. HARRISON'S ARGUMENT. HE MADE THAT'S MR. HARRISON WISHING THAT'S
THIS ARGUMENT TO THE ARBITRATOR, AND THE ARBITRATOR IN HIS ORDER SAID, THAT'S NOT WHAT I DID. THE PARTIES AGREED TO TRIPLE A
RULES, AND THEN SUBSEQUENTLY THE PARTIES SPECIFICALLY AGREED TO USE THE GEORGIA CIVIL PRACTICES ACT TO GOVERN DISCOVERY. AND HE
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SAID, I'M FOLLOWING GEORGIA LAW AND I'M SANCTIONING YOU UNDER GEORGIA STATUTE STANDARDS. HE REJECTED ALL THESE ARGUMENTS. SAME HE
HEARD THEM, SAID THEY'RE NONSENSE AND HE REJECTED THEM. THING WITH THE RECUSAL OR ETHICAL ISSUES.
WE'VE CITED A LONG
LINE OF CASES IN OUR BRIEFS THAT SAID RULES OF CONDUCT AND RULES OF ETHICS MAY VERY WELL BE A TRIPLE A RULE, IT MAY BE PART OF THE PARTIES' AGREEMENT, IT DOESN'T BECOME A FEDERAL RULE OR STANDARD. YOU. MR. HARRISON'S SIMPLY MISREPRESENTING THE CASES TO HE HAD AN ARGUMENT. HE
THAT'S NOT WHAT THEY BECOME.
SAID, I DON'T THINK YOU FULLY DISCLOSED. DISAGREED.
AND WE, FRANKLY,
MR. DEANE WAS METICULOUS IN TELLING THE PARTIES THAT HE'D BEEN THE U.S. ATTORNEY, THAT HE'D BEEN A MAGISTRATE JUDGE, THAT IN THOSE TWO POSITIONS IT'S VERY POSSIBLE THAT MATTERS CAME BEFORE HIM THAT MAY HAVE INVOLVED ONE OR BOTH PARTIES. HE SAID
HE DID NOT PERSONALLY GET INVOLVED AS FAR AS HE KNEW IN ANY CASE THAT INVOLVED US, BUT HE TOLD US POINT BLANK, YOU NEED TO DO YOUR DILIGENCE BECAUSE I'VE HAD THESE ROLES AND IT'S VERY POSSIBLE THAT AS U.S. ATTORNEY SOMETHING MAY HAVE COME INTO MY OFFICE. AND DR. MURTAGH'S THEN COUNSEL -- IT WASN'T
MR. HARRISON, HE HAS CHANGED COUNSEL SEVERAL TIMES SINCE THEN -FULLY KNEW AND FULLY UNDERSTOOD AND HAD THE OPPORTUNITY TO SAY ANYTHING HE WANTED TO SAY. AND SO WHEN THIS ISSUE CAME BEFORE HE HEARD MR. HARRISON AND HE THERE WAS NO GROUNDS FOR
ARBITRATOR DEANE, HE HEARD IT.
DECIDED THAT THAT WAS NOT CORRECT.
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RECUSAL.
BUT, REGARDLESS, HOW THAT BECOMES A FEDERAL LAW IT'S NOTHING TO DO WITH FEDERAL
QUESTION ISSUE IS BEYOND ME. LAW.
IT HAS TO DO WITH WHETHER OR NOT HE'S FULFILLING HIS
OBLIGATIONS UNDER THE PARTIES' CONTRACTUAL AGREEMENT AND UNDER THE TRIPLE A RULES THAT ARE APPLICABLE. OVERLIE THAT. IT'S JUST PURE NONSENSE. THERE IS, AGAIN, PLETHORA OF CASES FEDERAL LAW DOESN'T
SAME THING WITH BIAS.
THAT WE'VE CITED TO YOU THAT SAY YOU CANNOT TURN A CLAIM OF BIAS INTO A DUE PROCESS OR CONSTITUTIONAL CLAIM. THAT WAY. IT DOESN'T WORK
THE -- WHEN A COURT COMPELS ARBITRATION, ALL HE'S AND THE FEDERAL COURTS
DOING IS SAYING, FOLLOW YOUR AGREEMENT.
HAVE SAID LONG AND HARD, IF YOU HAVE A COMPLAINT THAT THE ARBITRATOR WAS BIASED OR THERE WAS UNDUE INFLUENCE OR HE DISREGARDED EVIDENCE OR THE LAW, YOU CAN MAKE THAT ARGUMENT TO THE STATE COURT. FEEL FREE. BUT THAT DOESN'T GIVE YOU A
FEDERAL-QUESTION ISSUE.
SO THERE IS NO DUE PROCESS ISSUE HERE, IT
MAYBE SOMETHING THAT MR. HARRISON HOPED FOR, BUT IT'S NOT. DOESN'T EXIST. THE COURTS HAVE UNIFORMALLY REJECTED THAT.
AND, LASTLY, LET ME TALK ABOUT THE DIVERSITY ISSUE.
IT IS
OUR POSITION THAT THIS IS ALL ONE PART AND PARCEL ACTION THAT STARTED WHEN THE STATE COURT ACTION WAS FILED, BUT WHAT WE SAID IN OUR BRIEFS IS IT REALLY DOESN'T MATTER. THIS IS A SEPARATE CAUSE OF ACTION. WE DON'T BELIEVE
WE DON'T THINK IT'S YOUR HONOR IN
PROPERLY VIEWED AS A SEPARATE CAUSE OF ACTION.
YOUR REMAND ORDER ACTUALLY SAID, AND I'LL QUOTE IT, EMORY ARGUES UNITED STATES DISTRICT COURT OFFICIAL CERTIFIED TRANSCRIPT
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THAT THIS MOTION TO CONFIRM THE ARBITRATION AWARD SHOULD BE TREATED AS PART OF THE STATE COURT ACTION, ONE IN WHICH DR. MURTAGH WAS A PLAINTIFF AND NOT AS A STAND-ALONE CASE. EMORY CITES THE CASE OF BALT -- BALTIMORE AND ORIOLE (SIC) -B&O CHICAGO TERMINAL RAILROAD VERSUS WISCONSIN CENTRAL. IT'S A
SEVENTH CIRCUIT DECISION, AND YOUR HONOR QUOTES FROM IT FOR SEVERAL SENTENCES. AGREES. AND THEN YOU GO ON TO SAY, THIS COURT
EMORY'S MOTION TO CONFIRM THE ARBITRATION AWARD IS AN
INEXTRICABLE PART OF THE STATE COURT PROCEEDINGS AND PROPERLY BELONGS THERE, AND YOU CITE A BUNCH OF CASES FOR THAT. COURSE THOSE CASES CAME OUT OF OUR BRIEF. AGREE WITH YOU. OF
AND WE ABSOLUTELY BUT EVEN IF
IT IS AN INEXTRICABLE PART OF IT.
DR. MURTAGH WERE RIGHT AND YOU COULD CONSTRUE THIS AS A SEPARATE CAUSE OF ACTION, AND EVEN IF YOU WERE TO LOOK AT THE DATE HE FILED THE PETITION TO VACATE AS THE IMPORTANT DATE, HE SAYS -THE COURT: WHAT DATE WAS THAT? THAT WAS MAY 4, 2009, THAT HE FILED THE
MR. WOZNIAK: PETITION TO VACATE. THE COURT: TIME? MR. WOZNIAK:
NOW, WHERE WAS DR. MURTAGH LIVING AT THAT
WELL, ACCORDING TO THE DECLARATION HE
FILED ON MAY 29, 2009, HE SAYS, QUOTE, I WAS ABLE TO OBTAIN TEMPORARY WORK IN DUBLIN, GEORGIA FROM APRIL 13TH, 2009 TO JUNE 26, 2009. FOR ME. MY EMPLOYER HAS RENTED TEMPORARY LIVING SPACE AND HIS PETITION
SO HE WAS LIVING IN GEORGIA.
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SIMILARLY SAYS -- THIS IS WHAT HE PLEADS IN HIS PETITION, DR. MURTAGH, FORMERLY A RESIDENT OF GEORGIA, RECENTLY MOVED TO ARKANSAS PRIOR TO FILING THE MOTION TO VACATE IN ORDER TO FILE THE JOB AS VACATION (SIC). HIS NEW JOB IN ARKANSAS WAS ULTIMATELY THE POSITION
TEMPORARY, ALTHOUGH IT WAS EXTENDED. WAS NOT MADE PERMANENT.
DR. MURTAGH HAS SINCE ASSUMED ANOTHER
TEMPORARY JOB IN GEORGIA WHERE HE IS TEMPORARILY LOCATED. SO WHEN HE FILED THIS PETITION HE WAS LOCATED IN GEORGIA. AND WE HAVE AGAIN CITED A NUMBER OF CASES TO YOU THAT SAYS WHEN A PERSON'S A LONG-TIME RESIDENT OF GEORGIA, THEY GO AWAY FOR A SHORT HIATUS AND THEN THEY RETURN, REGARDLESS OF HIS INTENTIONS, IT DOESN'T MATTER WHAT HE INTENDED, WHEN HE RETURNS TO GEORGIA AND THEN FILES A PETITION WHILE STILL IN GEORGIA, HE IS A DOMICILE OF GEORGIA. HE CAN'T ESTABLISH OTHERWISE. OTHERWISE
IT WOULD BE VERY EASY FOR ANY PERSON TO COME IN HERE AND SAY, JUDGE, I'M INTENDING TO LEAVE SOME TIME IN THE FUTURE, SO YOU SHOULD TREAT ME AS A DOMICILE OF SOMEWHERE ELSE AND WE'VE GOT DIVERSITY JURISDICTION. IT'S JUST WAY TOO EASY TO MANUFACTURE
DIVERSITY JURISDICTION, PARTICULARLY IN A CASE WHERE THE PLAINTIFF HAS BEEN FOUND IN ARBITRATION TO HAVE PERJURED HIMSELF ON A NUMBER OF OCCASIONS, PARTICULARLY IN A CASE WHERE THE STATE COURT JUDGES HAVE HELD HIM IN CONTEMPT FOR KNOWINGLY VIOLATING THEIR ORDERS. IT'S JUST TOO DISINGENUOUS AND TOO CUTE FOR HIM I ADMIT I'M IN I ADMIT I
TO COME IN HERE AND SAY, I INTEND TO LEAVE. GEORGIA.
I ADMIT I WAS IN GEORGIA WHEN I FILED THIS.
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WAS A LONG-TIME RESIDENT OF GEORGIA. ALL OF THAT. I INTEND TO LEAVE.
BUT, JUDGE, JUST IGNORE
IT JUST -- THE CASES DON'T THERE IS NO
ALLOW FOR THAT.
IT DOESN'T WORK THAT WAY.
DIVERSITY JURISDICTION. LAST, BUT NOT LEAST, DR. MURTAGH DID MAKE A HALF-HEARTED ATTEMPT TO ASSERT IN THE ARBITRATION A RETALIATION CLAIM UNDER THE FALSE CLAIMS ACT. THE COURT: I BEG YOUR PARDON? HE ATTEMPTED TO ASSERT IN THE
MR. WOZNIAK:
ARBITRATION A RETALIATION CLAIM UNDER THE FALSE CLAIMS ACT. THE COURT: RETALIATION OF -- HE WAS CONTENDING
SOMEBODY RETALIATED AGAINST HIM, THE EMORY PEOPLE? MR. WOZNIAK: EFFECTIVELY IF (SIC) ONE OF HIS DOZENS
OF CASES THAT WERE ORIGINALLY SETTLED BY THE AUGUST 2001 SETTLEMENT AGREEMENT WAS A FALSE CLAIMS ACT CLAIM. ATTORNEY'S OFFICE DECLINED TO INTERVENE. THE U.S.
OBVIOUSLY THEY DIDN'T
FIND IT MERITORIOUS, BUT IT WAS ONE OF THE MANY CLAIMS THAT GOT WRAPPED UP AND SETTLED AS PART OF THE AUGUST 2001 SETTLEMENT AGREEMENT. IN THE ARBITRATION HE CLAIMED THAT EMORY'S COUNTER
CLAIMS AGAINST HIM WERE IN EFFECT MORE RETALIATION FOR HIS ORIGINAL FALSE CLAIMS ACT CLAIM. THE ARBITRATOR NEVER GOT TO
ANY OF THE MERITS BECAUSE THE ARBITRATOR THREW OUT ALL OF HIS CLAIMS ON SANCTIONS LONG BEFORE WE HAD TO GET TO THE MERITS OF ANYTHING. BUT IT'S CERTAINLY MY CONTENTION THAT IT'S A
FRIVOLOUS CLAIM IN THE SENSE THAT IT WAS SETTLED AS PART OF THE UNITED STATES DISTRICT COURT OFFICIAL CERTIFIED TRANSCRIPT
32
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AUGUST 2001 SETTLEMENT AGREEMENT.
BUT IRRESPECTIVE, WE HAVE
CITED CASES TO YOU THAT SAY THAT WHEN YOU'RE TRYING TO DETERMINE IF THE PETITION TO VACATE INVOLVES A FEDERAL QUESTION, YOU CAN ONLY LOOK AT THE ISSUES RAISED IN THE PETITION. YOU CANNOT LOOK
THROUGH THE PETITION TO THE UNDERLYING CLAIMS IN THE ARBITRATION. AND MOST OF THE CASES THAT DR. MURTAGH RELIES ON
FOR A CONTRARY POSITION ACTUALLY DON'T INVOLVE SECTION TEN. THEY INVOLVE SECTION FOUR. AND THE CASES WE HAVE CITED TO YOU
MAKE CLEAR THAT THE SECTION FOUR STANDARD IS ACTUALLY DIFFERENT THAN THE SECTION TEN STANDARD. AND IN FACT THERE'S A RECENT AND
MIDDLE DISTRICT OF FLORIDA CASE THAT SAYS THE SAME THING.
THE CASES ARE VIRTUALLY UNIFORM THAT ON A SECTION TEN PETITION YOU DON'T LOOK THROUGH TO SEE WHAT THE UNDERLYING CLAIMS WERE. YOU SIMPLY LOOK TO THE PETITION TO SEE IF THE PETITION ITSELF RAISES A SUBSTANTIAL ISSUE OF FEDERAL LAW. OKAY.
SO, AGAIN, YOUR HONOR, WE THINK THERE'S THREE SEPARATE REASONS HERE TO DISMISS THIS. THE FIRST ONE IS THE REASON THAT
YOU YOURSELF CITED IN THE REMAND ORDER, WHICH IS THIS IS INEXTRICABLY INTERTWINED WITH THE STATE COURT ACTION. A SEPARATE ACTION. JURISDICTION HERE. IT'S NOT
SECOND, THERE'S NO FEDERAL-QUESTION AND, THIRD, MR. HARRISON DIDN'T ADDRESS EVEN IF IT IS A
THIS, BUT THIS IS A COMPULSORY COUNTER CLAIM.
SEPARATE CAUSE OF ACTION OR SEPARATE ACTION, IT SHOULD HAVE BEEN AND WAS REQUIRED TO HAVE BEEN BROUGHT WITH AS A COMPULSORY COUNTER CLAIM TO THE MOTION TO CONFIRM THAT EMORY FILED IN THE UNITED STATES DISTRICT COURT OFFICIAL CERTIFIED TRANSCRIPT
33
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STATE COURT ACTION.
THANK YOU, YOUR HONOR. MAY I HAVE JUST A MOMENT TO REPLY? WELL, THAT WAS HIS REPLY TO
MR. HARRISON: THE COURT: YOUR ARGUMENT. FURTHER REPLY. MR. HARRISON: THE COURT:
YES, SIR.
I'LL GIVE YOU A FEW MINUTES AND THEN HE GETS A
THANK YOU, JUDGE.
COME ON UP. THANK YOU. AND IF I COULD JUST NOTE
MR. HARRISON:
ANOTHER PROCEDURAL COMPLICATION THAT THIS CASE PRESENTS. THE COURT: SIR? ON A RULE 12(B)(1) MOTION FOR LACK OF
MR. HARRISON:
JURISDICTION, THE BURDEN IS ACTUALLY ON THE PARTY ASSERTING JURISDICTION, WHICH IS MY CLIENT, DR. MURTAGH. SO NORMALLY THE
PARTY WITH THE BURDEN WOULD BE ABLE TO DO THE LAST REBUTTAL BECAUSE IT'S THEIR BURDEN. THE COURT: HUH? IT'S ACTUALLY OUR BURDEN TO SHOW EVEN THOUGH EMORY
MR. HARRISON:
JURISDICTION BECAUSE WE'RE THE PLAINTIFF.
MADE THE MOTION TO DISMISS, THEY HAVE SOME BURDEN OF GOING FORWARD ON THEIR MOTION, BUT THE BURDEN OF PERSUASION IS ON US REGARDING JURISDICTION, SO I THINK IT'S APPROPRIATE FOR THE PLAINTIFF TO BE GIVEN THE REBUTTAL OPPORTUNITY FOR THAT REASON. BUT LET ME NOTE, FIRST OF ALL, THIS COMPULSORY COUNTER CLAIM IDEA. I JUST SAW THIS CASE TODAY THAT EMORY CITED, IS A NEW IT APPEARS TO BE A CASE AT FIRST
YORK DISTRICT COURT CASE.
34
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GLANCE THAT IS NOT ANALOGOUS PROCEDURALLY.
IN THIS CASE BOTH
THE MOTION TO CONFIRM AND THE MOTION TO VACATE WERE FILED IN FEDERAL COURT, NOT ONE IN STATE COURT AND ONE IN FEDERAL. SO
I'M NOT SURE THIS IS EVEN PERSUASIVE AUTHORITY ON THE QUESTION AT HAND. THE COURT: WHAT IS THE NAME -- WHAT IS THE TITLE AND
CITATION OF THAT CASE? MR. HARRISON: YES, SIR. THIS IS ARBITRATION BETWEEN
INTERCARBON BERMUDA L.T.D. AND CALTEX, C-A-L-T-E-X, TRADING AND TRANSPORT CORPORATION, 146 F.R.D. 64. SOUTHERN DISTRICT OF NEW YORK, 1993. THE COURT: 146 F.R.D. 64? CORRECT. THAT'S GOOD ENOUGH. THIS WOULD BE THE
ALL RIGHT.
MR. HARRISON:
SO I DON'T FIND THAT CASE EVEN IT DOESN'T APPEAR TO
PERSUASIVE AT THE MOMENT AT FIRST GLANCE.
ADDRESS OUR SITUATION, BUT -- AND WHAT -- WHAT EMORY IS SAYING IS, EVEN THOUGH WE HAVE A RIGHT OR EVEN ASSUMING WE HAVE A RIGHT UNDER THE FEDERAL ARBITRATION ACT TO FILE OUR MOTION TO VACATE IN FEDERAL COURT, THAT WE HAVE SOME OBLIGATION TO FILE IT IN STATE COURT IN THIS CASE BECAUSE EMORY FILED ITS MOTION TO CONFIRM THERE BECAUSE THEY WOULD TREAT THIS AS A COMPULSORY COUNTER CLAIM, I'VE NOT SEEN ANY CASE THAT SAYS THAT. DOESN'T SAY THAT. THIS CASE
AND I BELIEVE IT WOULD BE INCORRECT BECAUSE
OF THE POLICY ESTABLISHED BY CONGRESS IN THE FEDERAL ARBITRATION UNITED STATES DISTRICT COURT OFFICIAL CERTIFIED TRANSCRIPT
35
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ACT, NOT ONLY TO PROMOTE ARBITRATION AND ENFORCE ARBITRATION AGREEMENTS, BUT TO HAVE A FEDERAL COURT VENUE FOR DECIDING ARBITRATIONS UNDER THE FEDERAL ACT. SO I'M UNPERSUADED THAT
THIS IS A COMPULSORY COUNTER CLAIM IN ANY SENSE THAT WOULD REQUIRE DR. MURTAGH TO FILE HIS MOTION TO VACATE IN THE STATE COURT. A COUPLE OF OTHER DETAILS IN REBUTTAL. EMORY ON THE
DIVERSITY JURISDICTION ARGUMENT APPEARS TO BE SAYING THAT THEY DON'T BELIEVE DR. MURTAGH'S SEQUENCE OF EVENTS THAT HE RECOUNTS FOR HIS CHANGES IN JOBS AND RESIDENCES. THIS IS A JURISDICTIONAL MATTER. DR. MURTAGH IS HERE.
YOUR HONOR IS ABLE TO TAKE
EVIDENCE ON JURISDICTION AT ANY TIME. THE COURT: I CAN'T TAKE NO EVIDENCE ON IT. I'M GOING
WITH WHAT'S IN THE FILE. MR. HARRISON: DISCRETION. I LEAVE THAT TO YOUR HONOR'S
I THINK THE LAW PERMITS IT AND I'M JUST GOING TO
OFFER IF THERE WAS A -- IF YOU HAD A CREDIBILITY ISSUE REGARDING DR. MURTAGH, HE COULD BE EXAMINED. WE DON'T, OF COURSE,
OBVIOUSLY AGREE WITH EMORY'S ASSERTION THAT DR. MURTAGH'S RECOUNTING OF HIS JOB HISTORY IS INCORRECT OR NOT CREDIBLE. EMORY HAS NOT PUT ON EVIDENCE TO DISPUTE DR. MURTAGH'S SEQUENCE OF JOBS OR WHERE HE IS CURRENTLY RESIDING. THE -- I DON'T KNOW
WHAT EMORY MEANS WHEN THEY SAY DR. MURTAGH ATTEMPTED, ATTEMPTED TO ASSERT A FEDERAL CLAIM. I DON'T KNOW WHAT IT MEANS TO WHAT
ATTEMPT TO ASSERT A FEDERAL CLAIM IN ARBITRATION.
36
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DR. MURTAGH DID WAS HE RESPONDED WITH A WRITTEN FILING IN THE ARBITRATION IN RESPONSE TO AN INVITATION FROM THE ARBITRATOR UNDER A DEADLINE TO AMEND EACH OF THE PARTIES' CLAIMS, AND HIS ATTORNEY FILED HIS AMENDED STATEMENT OF CLAIMS. WITHIN THAT
WRITTEN, FILED AND ACCEPTED STATEMENT OF CLAIMS WAS A CLAIM ASSERTING RETALIATION UNDER THE FEDERAL FALSE CLAIMS ACT. THERE WAS NO ATTEMPT THERE. LITIGATED. IT IS TRUE THAT THE ARBITRATOR ENDED UP MAKING HIS AWARD BASED ON A SANCTION FOR A DISCOVERY ABUSE AND FOR THE ARBITRATOR'S FINDING THAT DR. MURTAGH DID NOT TESTIFY TRUTHFULLY ABOUT A DATE HE MET A CERTAIN WITNESS IN A DEPOSITION. SO WE THAT CLAIM WAS ACCEPTED TO BE SO
DIDN'T GET TO THE MERITS OF THE RETALIATION UNFORTUNATELY, BUT THAT WHOLE DECISION IS NOW WHAT IS BEFORE YOUR HONOR TO REVIEW. THAT'S WHAT WE'RE ASKING YOUR HONOR TO VACATE. SO EMORY WANTS
TO SAY, WELL, YOU KNOW, THERE'S NO UNDERLYING FEDERAL CLAIM BECAUSE THE ARBITRATOR DIDN'T GET TO IT. BUT IF YOUR HONOR
AGREES WITH US, AND THERE WAS SOME PREJUDICIAL MISCONDUCT BY THE ARBITRATOR, IF THERE WAS APPARENT BIAS, IF THERE WAS SOME OTHER GROUNDS UNDER THE FEDERAL ARBITRATION ACT TO VACATE IT, WE WILL GET BACK TO THE MERITS. IT HASN'T GONE AWAY. NOW, EMORY SEEMS TO WANT TO ARGUE THAT THAT FEDERAL RETALIATION CLAIM IS SOMEHOW FRIVOLOUS BECAUSE IT WAS QUOTE, UNQUOTE, SETTLED, AND THAT'S NOT TRUE. WHAT WAS SETTLED WAS A IT'S STILL AN UNDERLYING FEDERAL CLAIM.
37
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KEYTAM (PHONETIC) ACTION, OKAY, WHAT -THE COURT: KEYTAM ACTION? KEYTAM. A KEYTAM ACTION IS A SUIT ON
MR. HARRISON:
BEHALF OF THE GOVERNMENT, AS YOUR HONOR MAY KNOW, TO RECOVER FEDERAL FUNDS TAKEN UNDER FALSE PRETENSES. THAT WAS SETTLED.
DR. MURTAGH ALLEGED IN HIS ARBITRATION CLAIM THAT THERE WAS ONGOING RETALIATION BY EMORY BECAUSE OF HIS PROTECTED ACTIVITIES UNDER THE FEDERAL FALSE CLAIMS ACT, THINGS THAT HAVE HAPPENED SINCE THE SETTLEMENT. SO I DON'T SEE THEIR ARGUMENT THAT THAT
CLAIM WAS FRIVOLOUS IN ANY SENSE. THE COURT: HOLD UP. NOW, THE PLAINTIFF CONTENDS THAT
THE MOTION TO VACATE AN ARBITRATION UNDER F.A.A. CREATES A SEPARATE INDEPENDENT CAUSE OF ACTION? MR. HARRISON: THINK. THE COURT: HUH? I THINK THAT IS THE MAIN ISSUE HERE, IT IS STATED IN THE CASE LAW UNDER WE'VE CITED SOME CASES. I DON'T CORRECT. THAT'S THE MAIN ISSUE HERE, I
MR. HARRISON: JUDGE.
WE DO ASSERT THAT.
THE FEDERAL ARBITRATION ACT.
KNOW THERE'S ANY REAL DISPUTE ABOUT THAT.
I HAVEN'T SEEN ANY
CASE TO THE CONTRARY THAT SAYS A MOTION TO VACATE IS NOT AN INDEPENDENT ACTION UNDER THE FEDERAL ARBITRATION ACT. THAT'S WELL-SETTLED. I THINK
IT'S NOT WELL-STUDIED AND IT'S NOT MAYBE
FREQUENT, BUT IT IS -- IT IS THE LAW. THE COURT: ALL RIGHT, SIR.
38
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 JUDGE.
MR. HARRISON:
THANK YOU VERY MUCH FOR YOUR PATIENCE,
THE COURT: THE SAME QUESTION.
LET ME ASK THE DEFENDANTS, DEFENSE COUNSEL
NOW, THE DEFENDANTS CONTEND THAT A MOTION TO
VACATE DOES NOT CREATE A SEPARATE CAUSE OF ACTION? MR. WOZNIAK: YOUR HONOR, WHAT A -- YES. THE ANSWER
IS, YES, IT DOES NOT CREATE A SEPARATE CAUSE OF ACTION IN A FACT PATTERN LIKE THIS ONE WHERE THE COURT STAYED THE CLAIMS COMPELLED IN THE ARBITRATION AND KEPT JURISDICTION. IT IS TRUE
THAT THE F.A.A. SAYS THAT IF A PARTY ARBITRATES -- SO, FOR EXAMPLE, ONE SET OF EVENTS THAT COULD OCCUR IS THE PARTIES AGREE TO ARBITRATE. AWARD. NO LAWSUIT EVER GETS FILED. YOU THEN HAVE AN
THE F.A.A. DOES PROVIDE THAT YOU CAN TAKE THAT AWARD
INTO A COURT OF COMPETENT JURISDICTION, WHETHER IT BE STATE OR FEDERAL, AND OBVIOUSLY HAVE THAT AWARD CONFIRMED. IT DOES -- IT
DOES DO THAT, BUT IT'S NOT LIKE IT CREATES A SEPARATE CAUSE OF ACTION THAT YOU WOULD SPLIT OFF FROM THE ORIGINAL LAWSUIT AND TREAT IT AS IF IT WAS SOMEHOW NOT RELATED FACTUALLY TO THE ORIGINAL LAWSUIT. ALL THE NORMAL RULES ABOUT COMPULSORY COUNTER AND HE
CLAIMS AND RELATEDNESS AND ALL OF THOSE THINGS APPLY.
JUST DOESN'T HAVE THE RIGHT TO SPLIT OFF A PIECE OF THE LAWSUIT AND RUN TO FEDERAL COURT AND SAY, I WANT TO LITIGATE THIS LITTLE PIECE IN FEDERAL COURT, THE REST OF IT CAN STAY IN STATE COURT. MR. HARRISON: THE COURT: YOUR HONOR, CAN I MAKE A REQUEST?
HUH?
39
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
MR. HARRISON:
CAN I MAKE A REQUEST?
THE ISSUE YOU
JUST ASKED ABOUT, WHAT COUNSEL JUST DESCRIBED, I BELIEVE, IS ABSOLUTELY NOT THE LAW. I'M WONDERING IF WE COULD HAVE TWO DAYS
TO SUBMIT CASE LAW ON THAT QUESTION? THE COURT: BRIEFS, HAVEN'T YOU? MR. HARRISON: THE COURT: I'VE CITED CASES, I THINK, THAT -WELL, YOU'VE ALREADY ARGUED THAT IN YOUR
HUH? YES, AND I HAVE STATED THE CASES WHICH
MR. HARRISON:
ESTABLISH THAT, BUT I WOULD, I GUESS, LIKE TO GIVE COUNSEL AN OPPORTUNITY TO CITE A SINGLE CASE THAT SUPPORTS HIS POSITION THAT EVEN WHERE THERE'S STATE LITIGATION, IF IT RESULTS IN A FEDERAL ARBITRATION ACT ARBITRATION, IT DOES NOT PROVIDE, UNDER THE FEDERAL LAW, A -- AN INDEPENDENT CAUSE OF ACTION TO VACATE OR CONFIRM. IF THERE'S A CASE OUT THERE, I HAVEN'T SEEN IT. I
INVITE COUNSEL TO BRING IT FORWARD. MR. WOZNIAK: YOUR HONOR, WE'VE ALREADY BRIEFED THIS.
IN EFFECT, YOU CITE SOME OF THOSE CASES IN YOUR REMAND ORDER. MR. HARRISON: THE COURT: RECORD THE WAY IT IS. RIGHT NOW. I DON'T THINK SO. I'M GOING TO GO WITH THE
NO, GENTLEMEN.
WELL, OBVIOUSLY I CAN'T RULE ON THIS CASE
IT'S NOT THE REGULAR RUN OF CASES I GET, BUT IT CAN WELL, WE HAVE THE HOLIDAYS RIGHT
BE HANDLED IN DUE COURSE.
BEFORE US, SO I'M GOING TO GIVE YOU 30 DAYS TO COME IN WITH PROPOSED ORDERS. UNITED STATES DISTRICT COURT OFFICIAL CERTIFIED TRANSCRIPT
40
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
GIVE THEM A DATE, MS. BOYLE, APPROXIMATELY 30 DAYS FROM TODAY. COURTROOM DEPUTY CLERK: THE COURT: HUH? JANUARY THE 31ST, ON A IT WOULD BE JANUARY THE 31ST.
COURTROOM DEPUTY CLERK: MONDAY. THE COURT: MONDAY? COURTROOM DEPUTY CLERK: THE COURT: OKAY.
JANUARY THE 31ST.
WHAT IS THAT, A
LET'S SEE.
DOESN'T MATTER. WELL, IF YOU JUST WANT 30 THAT WOULD BE
COURTROOM DEPUTY CLERK:
DAYS, THEN IT WILL BE, SAY, THE 21ST OF JANUARY. ON A FRIDAY. THE COURT: 24TH. HUH? 20TH. OKAY.
IT WILL BE JANUARY THE ALL RIGHT. NOW,
THAT WILL GIVE YOU MORE THAN 30 DAYS.
THE COURT HAS BEFORE IT A MOTION TO DISMISS BY BOTH DEFENDANTS. AND THE DEFENDANTS WILL COME IN WITH A PROPOSED ORDER. DON'T FILE IT IN THE CLERK'S OFFICE. YOU PRESENT IT TO YOU YOU
MS. BOYLE, THE CLERK, AND SHE WILL TELL YOU HOW TO DO THAT. WILL BE FILING THAT ORDER AS IF YOUR MOTION TO DISMISS -MOTIONS TO DISMISS WERE GRANTED. COMING IN WITH AN ORDER -MR. HARRISON: THE COURT: DENIED. THE PLAINTIFF, YOUR HONOR. NOW, THE DEFENDANT WILL BE
-- AS IF THE MOTIONS TO DISMISS WERE
SO YOU'RE GOING TO WRITE THEM AS IF YOU ARE WRITING
41
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THEM FOR THE JUDGE.
IT'S NOT ANOTHER LEGAL BRIEF, ALTHOUGH YOU
CAN CITE CASES AND CITE POINTS OF THE RECORD THAT YOU THINK -PARTS OF THE RECORD THAT YOU THINK ARE IMPORTANT. MR. HARRISON: PAGE LIMIT, YOUR HONOR? THE COURT: HUH? WILL THERE BE A PAGE LIMIT, PAGE THANK YOU, JUDGE. WOULD THERE BE A
MR. HARRISON:
LIMITATION, NUMBER OF PAGES? THE COURT: EACH. MR. HARRISON: THE COURT: THANK YOU. I DON'T THINK YOU NEED MORE THAN 30 PAGES
BY THAT TIME I GUESS I WILL HAVE GOTTEN A
COURT REPORTER'S TRANSCRIPT, AND Y'ALL WILL HAVE TO ORDER THAT AND PAY FOR IT. MR. HARRISON: THE COURT: YOU LEAVE. YES, SIR.
YOU CAN TALK TO THE COURT REPORTER BEFORE
ANYTHING FURTHER? NO, SIR. THANK YOU VERY MUCH.
MR. HARRISON: MR. WOZNIAK:
YOUR HONOR, IF I COULD, THE REMAND ORDER
THAT WE'VE BEEN TALKING ABOUT TODAY THAT'S RELATED TO THIS CASE. THE COURT: TOO. MR. WOZNIAK: YOU HAVE, YOUR HONOR. THE PLAINTIFF I'LL TRY TO RULE ON THAT BY THAT TIME,
FILED A MOTION FOR RECONSIDERATION. THE COURT: YEAH, I JUST FOUND THAT OUT RECENTLY, AND
42
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I HADN'T STUDIED IT.
I PULLED IT UP YESTERDAY. THAT'S FINE. I JUST THOUGHT IT MIGHT BE
MR. WOZNIAK:
APPROPRIATE TO DEAL WITH BOTH AT THE SAME TIME. THE COURT: WELL, I WILL IF I CAN. THAT'S FINE. THANK YOU, YOUR HONOR.
MR. WOZNIAK: MR. HARRISON: THE COURT:
THANK YOU, JUDGE. THANK YOU VERY KINDLY.
OKAY, GENTLEMEN.
THE COURT STANDS IN RECESS UNTIL FURTHER ORDER. (PROCEEDINGS ADJOURNED.)
43
C E R T I F I C A T E
UNITED STATES OF AMERICA NORTHERN DISTRICT OF GEORGIA I, MONTRELL VANN, CCR, CSR, RPR, RMR, CRR, OFFICIAL COURT REPORTER OF THE UNITED STATES DISTRICT COURT, FOR THE NORTHERN DISTRICT OF GEORGIA, DO HEREBY CERTIFY THAT THE FOREGOING 42 PAGES CONSTITUTE A TRUE TRANSCRIPT OF PROCEEDINGS HAD BEFORE THE SAID COURT, HELD IN THE CITY OF ATLANTA, GEORGIA, IN THE MATTER THEREIN STATED. IN TESTIMONY WHEREOF, I HEREUNTO SET MY HAND ON THIS, THE 14TH DAY OF JANUARY 2011.
__________________________________ MONTRELL VANN, CCR,CSR,RPR,RMR,CRR OFFICIAL COURT REPORTER UNITED STATES DISTRICT COURT

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Case 1:09-cv-01186-HTW Document 12 Filed 01/24/11 Page 1 of 43

) ) PLAINTIFF, ) ) VS. ) ) EMORY UNIVERSITY, ET AL., ) ) DEFENDANTS. ) ) ) _____________________________)

DOCKET NUMBER 1:09-CV-1186-HTW ATLANTA, GEORGIA DECEMBER 20, 2010

FOR DEFENDANT FULTON-DEKALB:

FOR DEFENDANT EMORY:

OFFICIAL COURT REPORTER:

UNITED STATES DISTRICT COURT OFFICIAL CERTIFIED TRANSCRIPT

Case 1:09-cv-01186-HTW Document 12 Filed 01/24/11 Page 2 of 43

MR. HARRISON: THE COURT:

WHAT'S YOUR NAME? IT'S MICK AS IN MICKY HARRISON.

MR. HARRISON: THE COURT:

HUH? MICK HARRISON, JUDGE.

MR. HARRISON: THE COURT:

OH, YOU'RE FROM WHERE, TENNESSEE OR -THAT'S CLOSE. INDIANA.

MR. HARRISON: THE COURT:

ALL RIGHT, SIR. TODD

GOOD AFTERNOON, YOUR HONOR.

MR. HARRISON: WITH ME TODAY. THE COURT:

I THINK THIS CASE IS ON THE

Case 1:09-cv-01186-HTW Document 12 Filed 01/24/11 Page 3 of 43

HANDLED A RELATED CASE A FEW MONTHS BACK.

THIS LAWSUIT HAS BEEN

LAWSUITS AND ADMINISTRATIVE CHARGES.

BREACHES OF THE PARTIES' SETTLEMENT AGREEMENT. A NUMBER OF STATE TORT CLAIMS.

EMORY FILED AN ANSWER AND

UNITED STATES DISTRICT COURT OFFICIAL CERTIFIED TRANSCRIPT

Case 1:09-cv-01186-HTW Document 12 Filed 01/24/11 Page 4 of 43

TIME THE PARTIES GOT TOGETHER AND AGREED ON TWO THINGS.

MR. WOZNIAK: SUPERIOR COURT.

DR. MURTAGH'S COUNSEL CONSENTED TO THE INJUNCTION.

Case 1:09-cv-01186-HTW Document 12 Filed 01/24/11 Page 5 of 43

ACCUSED EMORY EMPLOYEES OF VARIOUS CRIMINAL CONDUCT.

WAS MANIPULATING ELECTRONIC INFORMATION AND EVIDENCE.

Case 1:09-cv-01186-HTW Document 12 Filed 01/24/11 Page 6 of 43

CLAIMS AND AWARDED VARIOUS LEGAL RELIEF.

THEN THE GRADY ENTITIES FILED A 'ME TOO' MOTION.

CALL IT "CASE" LOOSELY. THE PETITION TO CONFIRM. OF THE UNDERLYING CASE.

Case 1:09-cv-01186-HTW Document 12 Filed 01/24/11 Page 7 of 43

FLIP SIDE OF THE MOTION TO CONFIRM. VACATE.

SO THE PETITION TO VACATE WAS FILED.

ORIGINALLY TO JUDGE STORY.

WE FILED OUR MOTION TO DISMISS, AND

UNITED STATES DISTRICT COURT OFFICIAL CERTIFIED TRANSCRIPT

Case 1:09-cv-01186-HTW Document 12 Filed 01/24/11 Page 8 of 43

WELL, YOU GOT A COPY TO GIVE TO -- GIVE TO

IT'S MARKED, BUT, YES, I CAN GIVE IT TO THEM.

Case 1:09-cv-01186-HTW Document 12 Filed 01/24/11 Page 9 of 43

ALLEGED IN THE UNDERLYING LAWSUIT. FEE MOTION.

YOU HAVE TO SHOW THAT THERE'S A SUBSTANTIAL

UNITED STATES DISTRICT COURT OFFICIAL CERTIFIED TRANSCRIPT

Case 1:09-cv-01186-HTW Document 12 Filed 01/24/11 Page 10 of 43

MR. WOZNIAK: NEW CAUSE OF ACTION. THE COURT:

YOU CAN'T SEPARATE IT OUT AND CREATE A

YES, SIR. THANK YOU, YOUR HONOR.

UNITED STATES DISTRICT COURT OFFICIAL CERTIFIED TRANSCRIPT

Case 1:09-cv-01186-HTW Document 12 Filed 01/24/11 Page 11 of 43

THE COURT: MR. HENDERSON.

MIGHT AS WELL HEAR FROM BOTH DEFENDANTS,

MR. EICHELBERGER: EMORY'S ARGUMENTS. THE COURT: HUH?

ACTUALLY, YOUR HONOR, WE JOIN IN

MR. EICHELBERGER: THE COURT:

WE JOIN IN EMORY'S ARGUMENTS.

YOU DON'T HAVE ANY SEPARATE ARGUMENT? NOTHING ADDITIONAL.