Sheikh, Bashir v. Grant Regional Health Center

Filing 133

Transmission of Notice of Appeal, Appeal Information Sheet, Docket Sheet and Judgment to Seventh Circuit Court of Appeals re 131 Notice of Appeal, (Attachments: # 1 Info sheet, # 2 July 2, 2013 Order, # 3 July 3, 2013 Judgment, # 4 October 9, 2013 Order, # 5 Docket Sheet) (elc),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

BASHIR SHEIKH, M.D.,
Plaintiff,

OPINION AND ORDER

v.
11-cv-1-wmc
GRANT REGIONAL HEALTH CENTER,
Defendant.

In this lawsuit alleging employment discrimination among other claims, the court
granted summary judgment to defendant Grant Regional Health Center (“GRHC”) on all
of plaintiff Bashir Sheikh’s federal law claims, while declining to exercise supplemental
jurisdiction over Sheikh’s remaining state law claims and GRHC’s state law counterclaim.
(Dkt. #119.) After dismissing those claims without prejudice, the case was closed and
judgment was entered on July 3, 2013. (Dkt. #120.) On July 25, 2013, Sheikh filed two
motions: (1) a motion for reconsideration of the court’s order on defendant’s motion for
summary judgment (dkt. #121); and (2) a motion to continue jurisdiction over the state
law claims, asserting for the first time that those claims are properly before the court
under this court’s diversity jurisdiction, 28 U.S.C. § 1332(a) (dkt. #122).
For the reasons that follow, the court will deny Sheikh’s motion for
reconsideration, but will grant his motion to continue jurisdiction over the state law
claims, upon a proper showing that diversity of the parties existed at the time Sheikh
filed his original complaint. Upon that showing, the court will revisit defendant’s motion
for summary judgment, which also sought dismissal of Sheikh’s state law claims and

judgment in its favor on its breach of contract counterclaim. After issuing that opinion,
the court will set a trial date and remaining applicable deadlines as necessary.

OPINION
I. Motion for Reconsideration
In the first motion, Sheikh seeks reconsideration of the court’s opinion and order
granting summary judgment to GRHC on Sheikh’s employment discrimination claims.
Sheikh contends that (1) the court did not consider his affidavit or his response to
defendant’s proposed findings of facts; and (2) the order is “based on some material facts,
which are either utterly inaccurate or genuinely disputed.” (Mot. to Reconsider (dkt.
#121).)

Related to the first basis, plaintiff further contends that his September 24,

2012, motion for clarification seeking an order allowing him to file an opposition to
defendant’s proposed findings of facts (dkt. #105) is still under advisement.
Since Sheikh’s motion was filed within 28 days of the entry of judgment, the court
will treat it as a motion to alter or amend the judgment pursuant to Fed. R. Civ. P. 59
(e). “[A] Rule 59(e) motion must clearly establish either a manifest error of law or fact or
must present newly discovered evidence.” LB Credit Corp. v. Resolution Trust Corp., 49
F.3d 1263, 1267 (7th Cir. 1995); see also Sigsworth v. City of Aurora, Ill., 487 F.3d 506,
511-12 (7th Cir. 2007). Rule 59(e) “does not allow a party to introduce new evidence or
advance arguments that could or should have been presented to the district court prior to
the judgment.” Popovits v. Circuit City Stores, Inc., 185 F.3d 726, 729 (7th Cir. 1999)
(quotation marks and citation omitted).

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As for Sheikh’s first argument, the court explained in its summary judgment
opinion that it considered Sheikh’s own proposed findings to be his response to
defendant’s proposed findings, even though Sheikh’s filing was not in compliance with
this court’s standing order on summary judgment. (7/2/13 Op. & Order (dkt. #119) 2
n.2.) This relief mooted Sheikh’s request to file a further, formal response to defendant’s
proposed findings. To the extent Sheikh was seeking an opportunity to supplement his
summary judgment opposition -- or is seeking that relief now -- the court had already
extended the deadline for plaintiff’s response to summary judgment and warned Sheikh
that “[n]o further extension of summary judgment briefing will be granted.”
(6/20/12 Op. & Order (dkt. #82) 12 (emphasis in original).) Any arguable error in the
court’s decision to limit further delay by plaintiff was certainly not a manifest error of
law. Even if a further response had been allowed, Sheikh neither proffers -- nor even
argues that he would have come forth with -- new evidence of discriminatory animus,
which is what ultimately doomed his federal claims at summary judgment.
Sheikh’s second argument -- that the court’s summary judgment opinion rests on
disputed facts -- fares no better.

The court interpreted the facts in Sheikh’s favor and

still found that he failed to put forth sufficient evidence for a reasonable jury to find a
discriminatory reason for GRHC’s actions.

Moreover, Sheikh’s conclusory statement

that the opinion rests on “utterly inaccurate or genuinely disputed” facts again fails to
identify with any precision a manifest error of fact. As such, the court finds no basis to
reconsider this decision or otherwise alter or amend its grant of summary judgment on
plaintiff’s federal law claims.
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II. Motion to Continue Jurisdiction over State Law Claims under Diversity
Jurisdiction
Consistent with the well-established law of this circuit, after dismissing the federal
question claims for which this court has original jurisdiction, the court declined to
exercise supplemental jurisdiction over (and dismissed without prejudice) both Sheikh’s
state law claims and GRHC’s state law counterclaim. (7/2/13 Op. & Order (dkt. #119)
21.) Now, Sheikh asserts that this decision was in error because the court also had
diversity jurisdiction over those claims. In support, Sheikh notes that he “resides in the
state of Illinois,” and that defendant “has its princip[al] place of business in the state of
Wisconsin.” (Dkt. #122.)
Neither the initial pro se complaint, amended complaint, nor second amended
complaint (filed by counsel) assert diversity jurisdiction pursuant to 28 U.S.C. § 1332(a).
Rather, all complaints allege that the court has jurisdiction over the federal law claims
pursuant to 28 U.S.C. § 1331 and that the court should exercise supplemental
jurisdiction pursuant to § 1367 over the state law claims.

(Compl. (dkt. #1) p.2

(asserting federal question jurisdiction); Am. Compl. (dkt. #13) p.2 (same); 2d Am.
Compl. (dkt. #49) ¶ 3 (citing to 28 U.S.C. § 1331 and § 1367).)
Still, plaintiff had no obvious need to assert diversity jurisdiction until the court
dismissed his federal law claims and declined to exercise supplemental jurisdiction over
the state law claims. Moreover, defendant GRHC has since filed a letter in response to
Sheikh’s motion stating that it “takes no position.” (Def.’s Resp. (dkt. #123).) At the
time of filing, diversity either existed between the parties or it did not. Accordingly, in
the interests of justice and judicial economy, the court is willing to take up the parties’
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state law claims based on diversity jurisdiction. To do so, however, Sheikh must properly
allege that diversity between the parties existed on January 3, 2011, the date he filed the
original complaint. See Grupo Dataflux v. Atlas Global Grp., L.P. 541 U.S. 567, 570
(2004) (“[J]urisdiction of the court depends upon the state of things at the time of the
action brought.”).1 This is not simply a formality: plaintiff must have a good faith basis
in fact to plead that defendant and he were “citizens of different states” at the time he
filed this lawsuit. 28 U.S.C. § 1332(a)(1).
Strictly speaking, for an individual, like himself, Sheikh must allege his domicile as
of January 3, 2011, rather than his residence at that time. See Winforge, Inc. v. Coachmen
Indus., Inc., 691 F.3d 856, 867 (7th Cir. 2012) (“An allegation of residence is not
sufficient to establish citizenship, which requires domicile.”). A person’s domicile is “the
state in which a person intends to live over the long run.” Heinen v. Northrop Grumman
Corp., 671 F.3d 669, 670 (7th Cir. 2012). As such, a person may have several residences,
but only one domicile. For a corporation, like defendant GRHC, Sheikh must allege its
place of incorporation and its principal place of business at that time. See 28 U.S.C. §
1332(c)(1) (“[A] corporation shall be deemed to be a citizen of every State and foreign
state by which is has been incorporated and of the State or foreign state where it has its
principal place of business.”).
Accordingly, plaintiff shall file and serve on or before October 21, 2013, a signed
pleading, attesting in good faith to the necessary facts described above. Defendant may

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The complaint contains sufficient allegations to establish that the jurisdiction amount
of $75,000 is met.
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have ten days from service to file and serve a short answer attesting in good faith to the
accuracy of this pleading. Assuming diversity jurisdiction existed at the time this lawsuit
was initiated, the court will then (1) reopen this case, (2) amend the judgment with
respect to the state law claims, and (3) revisit defendant’s motion for summary judgment
on all state law claims.

Depending on the outcome of that motion, the court will

reschedule a trial date and establish pretrial deadlines as necessary and appropriate.

OPINION
IT IS ORDERED that:
1) Plaintiff Bashir Sheikh’s motion to reconsider (dkt. #121) is DENIED; and
2) The court RESERVES ruling on plaintiff’s motion to continue jurisdiction over
state claims under diversity jurisdiction (dkt. #122) pending submissions by
the parties as set forth above.
Entered this 9th day of October, 2013.
BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge

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