Mensah v. Morehouse School of Medicine
OPINION AND ORDER adopting Magistrate Judge Linda T. Walker's Final Report and Recommendation 23 and remanding this action to the Superior Court of Fulton County. It is further ordered that Defendant's pending Motion for Summary Judgment 14 is denied as moot. Signed by Judge William S. Duffey, Jr on 2/13/18. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
MOREHOUSE SCHOOL OF
OPINION AND ORDER
This matter is before the Court on Magistrate Judge Linda T. Walker’s Final
Report and Recommendation  (the “Final R&R”). The Final R&R
recommends that this action be remanded to the Superior Court of Fulton County
for lack of federal subject matter jurisdiction.
Plaintiff, Dr. Freda Mensah, was a medical resident enrolled in Defendant
Morehouse School of Medicine’s (“Defendant”) Community Pediatric Residency
Program. On or about February 9, 2015, Plaintiff and Defendant entered into a
settlement agreement (the “Settlement Agreement”) readmitting Plaintiff into
Defendant’s program after Plaintiff agreed to a general release of all claims and
voluntarily dismissed her then-pending action against Defendant in this Court in
case captioned 1:14-cv-1991-WBH. In that lawsuit, Plaintiff alleged 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., 
¶¶ 65-79 (N.D. Ga. Aug. 25, 2014)).
On July 22, 2016, Plaintiff filed this action against Defendant in the Superior
Court of Fulton County. ([1.1]). Plaintiff alleges state law causes of action for
breach of the Settlement Agreement, damage to reputation, liability for punitive
damages, and attorney’s fees due to Defendant’s bad faith and stubborn
litigiousness. Plaintiff alleges that under the Settlement Agreement, 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. (See Compl. ¶¶ 3, 9; Agreement and General Release, Pl.’s
Dep., Ex. 3, at 2 ([14.4] at 40) (explaining that Plaintiff “acknowledges that she is
only entitled to a reasonable accommodation as defined under the ADA”)).
Plaintiff also alleges that although she fully complied with her obligations
under the Settlement 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 to grant 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. (Id. ¶¶ 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. (Id. ¶¶ 33-39).
On September 7, 2016, Defendant removed this action to this Court 
pursuant to 28 U.S.C. §§ 1441(a) and 1446. In asserting its basis for federalquestion jurisdiction, Defendant argues that “it appears” that Plaintiff “seeks to
recover for alleged violations of federal anti-discrimination laws pursuant to the
[ADA] and/or Section 504 of the Rehabilitation Act of 1973.” (Notice of Removal
 ¶ 3). To demonstrate that this action presents a federal question, Defendant
notes 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. (Id. ¶¶ 7-8). Finally, Defendant argues that in the Settlement
Agreement, Plaintiff consented to the exclusive jurisdiction of this Court for
matters relating to a breach of the settlement agreement. (Id. ¶ 6).
On May 15, 2017, Defendant filed its Motion for Summary Judgment .
That motion was submitted to the Magistrate Judge on June 20, 2017.
On January 4, 2018, the Magistrate Judge issued the Final R&R . In the
Final R&R, the Magistrate Judge did not address Defendant’s motion for summary
judgment. Instead, the Magistrate Judges raised the issue of federal subject matter
jurisdiction sua sponte, and recommended that this action be remanded to the
Superior Court of Fulton County for lack of jurisdiction. The Magistrate Judge
found (i) on its face, the Complaint does not assert claims pursuant to the ADA or
the Rehabilitation Act; (ii) Plaintiff’s breach of contract claim does not confer
federal question jurisdiction even if it invokes federal disability discrimination law;
and (iii) the Court does not have ancillary jurisdiction over the Settlement
Agreement despite language in the agreement consenting to the jurisdiction of this
Court for matters relating to breach of the Settlement Agreement.
On January 18, 2018, Defendant filed its Objections to the Final R&R .
Defendant objects to the Magistrate Judge’s finding that this Court lacks subject
matter jurisdiction on the grounds that Plaintiff’s breach of contract claim raises a
substantial federal issue.
Standard of Review of a Magistrate Judge’s R&R
After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or modify a magistrate
judge’s report and recommendation. 28 U.S.C. § 636(b)(1); Williams
v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (per curiam). A district judge
“shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1). Where no party has objected to the report and recommendation, the
Court conducts only a plain error review of the record. United States v. Slay,
714 F.2d 1093, 1095 (11th Cir. 1983) (per curiam).
Defendant objects to the Magistrate Judge’s finding that the fact Plaintiff’s
breach of contract claim may turn on issues of federal disability discrimination law
under the ADA is insufficient to confer federal jurisdiction. The Court conducts its
review of those findings and recommendations de novo. Defendant does not object
to the Magistrate Judge’s finding that the Complaint, on its face, does not state a
claim for relief under federal law. Nor does Defendant object to the Magistrate
Judge’s finding that the Court may not exercise ancillary jurisdiction over the
Settlement Agreement by way of agreement or waiver. For these portions of the
Final R&R to which an objection is not made, the Court reviews them for plain
error. Slay, 714 F.2d at 1095.
Subject Matter Jurisdiction and Removal Principles
Federal district courts have an “independent obligation to determine whether
subject-matter jurisdiction exists, even in the absence of a challenge from any
party.” Arbaugh v. Y&H Corp., 546 U.S. 500, 501 (2006). Indeed, it is well
settled that a federal court is obligated to inquire into subject matter jurisdiction
sua sponte whenever it may be lacking.” Univ. of S. Ala. v. Am. Tobacco Co.,
168 F.3d 405, 410 (11th Cir. 1999).
An 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.
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).
Removal in this case is based on federal-question jurisdiction, which extends
to “all civil actions arising under the Constitution, laws, or treaties of the United
States.” 28 U.S.C. § 1331. “The presence or absence of federal-question
jurisdiction is governed by the ‘well-pleaded complaint rule,’ which provides that
federal jurisdiction exists only when a federal question is presented on the face of
the plaintiff’s properly pleaded complaint.” Caterpillar Inc. v. Williams, 482 U.S.
386, 392 (1987).
“Although the vast majority of cases that fall within such federal-question
jurisdiction are cases that arise under federal law that creates a cause of action, in
limited circumstances, federal-question jurisdiction may also be available if a
substantial, disputed question of federal law is a necessary element of a state cause
of action.” Jairath v. Dyer, 154 F.3d 1280, 1282 (11th Cir. 1998). In such cases,
federal jurisdiction will be conferred over a state law claim when: (i) a federal
issue is raised; (ii) the federal issue is actually disputed; (iii) the federal issue is
substantial; and (iv) the issue is capable of resolution in federal court without
disrupting the federal-state balance approved by Congress. Gunn v. Minton, 568
U.S. 251, 258 (2013). Only “[w]here all four of these requirements are met” is
jurisdiction proper because there is a “serious federal interest in claiming the
advantages thought to be inherent in a federal forum,” which can be vindicated
without disrupting Congress’s intended division of labor between state and federal
courts. Id. (citing Grable & Sons Metal Products, Inc. v. Darue Engineering &
Mfg., 545 U.S. 308, 313-314 (2005)).
The Magistrate Judge found that, contrary to Defendant’s suggestion,
Plaintiff’s Complaint does not assert claims pursuant to the ADA or the
Rehabilitation Act. On the face of the Complaint, Plaintiff asserts a state law claim
for breach of the settlement agreement, “damage to reputation” stemming from
Defendant’s “intentional or negligent failure to provide [her] the benefits of the
settlement agreement,” attorney’s fees, and punitive damages. Defendant asserts
that Plaintiff alleges a claim under the ADA or the Rehabilitation Act by alleging
that Defendant “intentionally retaliated” against her for the prior legal action. The
Magistrate Judge found that it was more than plausible that Plaintiff is pleading a
state law tort claim “[g]iven Plaintiff’s deliberate omission of the ADA and the
Rehabilitation Act in the Court or anywhere else in the Complaint.” (Final R&R
at 7). Defendant does not object to this finding, and the Court does not find the
Magistrate Judge plainly erred in making it.
The Magistrate Judge’s also found that this Court cannot exercise ancillary
jurisdiction over this claim merely because it arose out of the settlement of the
ADA case in this Court. The Magistrate Judge found that the concept of limited
federal jurisdiction does not permit the Court to assert ancillary jurisdiction over a
settlement agreement that has as part of its consideration a plaintiff’s voluntary
dismissal of a case before a federal court, especially where the district court did not
issue an order retaining jurisdiction. (Final R&R at 15). Defendant did not object
to this finding, and the Court finds that the Magistrate Judge did not plainly err in
Defendant does object to the Magistrate Judge’s finding that even though
Plaintiff’s breach of contract claim may turn on interpretations of the ADA—such
as determining whether Plaintiff has a covered disability or was denied a
reasonable accommodation—the exercise of federal jurisdiction is improper.
Defendant argues that the exercise of jurisdiction is proper because the
breach of contract claim raises substantial federal issues sufficient to satisfy the
third element of the Gunn analysis. ( at 3). The Eleventh Circuit has held that
factors to assist in the inquiry of whether there is a substantial federal issue include
whether (1) the federal issue is a pure question of law; (2) the federal question
“will control many other cases”; and (3) the question is one where “the government
has a strong interest in litigating in a federal forum.” MDS (Canada) Inc. v. Rad
Source Techs., Inc., 720 F.3d 833, 842 (11th Cir. 2013). First, Plaintiff’s
allegations that the Settlement Agreement provides for a broad range of covered
disabilities, and that Defendant violated that agreement when it failed to provide
reasonable accommodations, raise predominantly factual issues. Defendant does
not object to the Magistrate Judge’s finding that the Complaint does not raise a
pure question of law, and the Court finds no plain error in that finding. This factor
favors remand. See Batchelor v. Deloitte & Touche, LLP, No. 08-CIV-22686,
2009 WL 1255449, at *4 (S.D. Fla. Apr. 27, 2009) (finding that complaint did not
present substantial issue of federal law where claim relied upon fact-specific
circumstances of employee’s termination, the meaning of a federal regulation was
not the central issue, and the case occurred between private parties).
Defendant objects to the Magistrate Judge’s finding that the potential federal
issues will not be controlling for many other cases. Defendant argues that
Plaintiff’s breach of contract claim could have an impact “on a broad spectrum of
cases” because “the intersection of reasonable accommodations in the medical
residency and medical licensing requirements context could be applicable in other
cases.” ( at 5-6). This argument is not compelling and is the sort of
speculative conjecture that will not support the exercise of federal jurisdiction.
The Magistrate Judge found, and upon de novo review this Court agrees, that this
action is “devoted to run-of-the-mill issues such as whether Plaintiff is a qualified
person with a disability, whether Plaintiff’s requested accommodation was
reasonable, and whether Plaintiff can show that Defendant’s reason for its
employment actions is a pretext for disability discrimination.” (Final R&R at 12).
There is no disputed interpretation of a federal statute at stake in this case and
Defendant does not point out any unclear issue of federal law. See Adventure
Outdoors, Inc. v. Bloomberg, 552 F.3d 1290, 1300 (11th Cir. 2008) (finding that
federal issue was not substantial where there was no unclear provision of federal
law to interpret and interpretation of state law issue would not have precedential
affect in federal system). The Court finds that there is no basis on which to find
that this case will be controlling for many other cases.
Third, there is no basis to support that the government has a strong interest
in litigating in a federal forum. Defendant objects that the federal government has
a strong interest in the interpretation of reasonable accommodations in the context
of competency exams and licensing requirements in the medical profession. The
Magistrate Judge found that this case presents, at best, garden-variety federal
issues, is unrelated to the action of any federal agency, there is no dispute with
respect to interpretation of a federal statute, and there is no indication that a state
forum would have difficulty evaluating the issues. Defendant’s objection is
speculative and failed to rebut any of the Magistrate Judge’s findings on this point.
Upon de novo review, this Court finds that the Complaint does not raise a
substantial federal issue.
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Linda T. Walker’s Final
Report and Recommendation  is ADOPTED.
IT IS FURTHER ORDERED that this action is REMANDED to the
Superior Court of Fulton County.
IT IS FURTHER ORDERED that Defendant’s pending motion for
summary judgment  is DENIED AS MOOT.
SO ORDERED this 13th day of February, 2018.
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