United States District Court for the District of Columbia
February 6, 2004.
REBECCA A. ZUURBIER, M.D., Plaintiff,
MEDSTAR HEALTH, INC., Defendant
The opinion of the court was delivered by: ROSEMARY COLLYER, District Judge
This case was removed from the Superior Court of the District of
Columbia because the complaint alleged violations of the plaintiff's
civil rights under federal law. The plaintiff immediately amended her
complaint to drop all federal claims and rely solely on the D.C. Human
Rights Act, D.C. Code § 2-1402 et seq. She now seeks a
remand back to Superior Court, which the defendants oppose.
Since the case came to this Court on September 22, 2003, the lawyers
have graced it with a bounty of pleadings. Readers will need scorecards.
The plaintiff is Dr. Zuurbier. Defendants are MedStar Health, Inc.
("MedStar"); MGMC LLC ("MGMC"), and the MedStar-Georgetown Medical
Center, Inc. ("the Medical Center"). Pending before the Court are
Defendant MedStar Health's Motion to Dismiss Defendant [sic] for Failure
to State a Claim or in the Alternative for Summary Judgment ("MedStar
Dismissal Motion"); Plaintiff's Motion to Remand ("Remand Motion");
Plaintiff's Opposition to Defendant's Motion to Dismiss or in the
Alternative for Summary Judgment ("Opp. to MedStar Dismissal Motion");
Defendant MedStar Health Inc.'s
Reply Memorandum to Plaintiffs Opposition to Defendant's Motion to
Dismiss or in the Alternative for Summary Judgment ("MedStar Dismissal
Reply); Plaintiffs Surreply ("Surreply"); Defendant MGMC LLC's Motion to
Strike, Motion to Dismiss Plaintiff's Amended Complaint Against MGMC LLC
and, in the Alternative, to Compel Arbitration ("MGMC Motion to Strike");
Defendant MedStar-Georgetown Medical Center, Inc.'s Motion to Strike
Plaintiffs Amended Complaint or, in the Alternative, Motion to Dismiss or
for Summary Judgment ("Medical Center Motion to Strike"); Defendants'
Opposition to Plaintiff's Motion to Remand ("Remand Opp."); Plaintiff's
Reply to Defendant's Opposition to Plaintiffs Motion to Remand ("Remand
Reply"); Plaintiff's Opposition to Defendant MedStar-Georgetown Medical
Center, Inc.'s Motion to Strike Plaintiff's Amended Complaint or, in the
Alternative, Motion to Dismiss or for Summary Judgment ("Opp. to
Georgetown Motion to Strike"); Plaintiff's Opposition to Defendant MGMC
LLC's Motion to Strike, Motion to Dismiss Plaintiff's Amended Complaint
Against MGMC LLC and, in the Alternative, to Compel Arbitration ("Opp. to
MGMC Motion to Strike"); Plaintiff's Motion to File Second Amended
Complaint ("Second Complaint Motion"); Defendants' Opposition to
Plaintiff's Motion to Filed Second Amended Complaint ("Opp. to Second
Complaint"); Defendants MedStar-Georgetown Medical Center, Inc. and MGMC
LLC's Reply in Support of Their Motion[s] to Strike Plaintiff's Amended
Complaint or, in the Alternative, Motion[s] to Dismiss or for Summary
Judgment ("Reply to Motions to Strike"); and Plaintiff's Reply in Support
of Motion to File Second Amended Complaint ("Reply to Second Complaint").
For purposes of ruling on the pending motions, the facts can be quickly
summarized. Georgetown University is a well-known fixture in the
Washington, B.C. community. Plaintiff Rebecca A. Zuurbier, M.D. began her
employment at Georgetown University Hospital on April 1, 1993, as an
Assistant Professor, Director of the Breast Imaging Division, and
Director of Radiology Resident Education. In the ensuing years, Dr.
Zuurbier took on positions of greater and greater responsibility within
both the medical school and the Hospital. On or about February 17, 2000,
MedStar and Georgetown executed an Asset Purchase Agreement covering the
Hospital, with an effective date of July 1, 2000. Pursuant to the terms
of the acquisition and the terms of her employment agreement, Dr.
Zuurbier became an employee of MGMC, a single member limited liability
company organized in the District of Columbia and a subsidiary of the
Medical Center. Her employment agreement contains an arbitration
provision ostensibly requiring arbitration of all employment disputes.
Dr. Zuurbier submitted her resignation on July 15, 2002; her last day of
employment was October 14, 2002.
Dr. Zuurbier sued MedStar for employment discrimination on July 15,
2003 in the Superior Court. MedStar was served on September 2, 2003 and
removed the action to federal court on September 22, 2003, based on
federal-question and diversity jurisdiction. See 28 U.S.C. § 1331,
1332. As filed, the complaint alleged employment discrimination under the
D.C. Human Rights Act ("DCHRA"); constructive termination under the
DCHRA; violations of the Equal Pay Act, 29 U.S.C. § 206(d); and
gender discrimination in violation of Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. § 2000e. The MedStar Dismissal Motion
was filed on September 29, 2003. On October 9, 2003, Dr. Zuurbier filed
an Amended Complaint adding as defendants the Medical
Center and MGMC, and withdrawing the Equal Pay Act claim and the
Title VII claim leaving only DCHRA claims under B.C. law
and filed the Remand Motion.
MedStar is a Maryland corporation, with its principal place of business
in Columbia, Maryland.*fn1 It is registered to do business in both the
District of Columbia and Maryland. MGMC and the Medical Center are
incorporated and have their primary places of business in the District of
Columbia.*fn2 Dr. Zuurbier is a resident of the Commonwealth of
The original complaint in this action sought relief based on two
federal statutes, Title VII and the Equal Pay Act, and therefore the
Court had jurisdiction upon removal. See 28 U.S.C. § 1331
("The district courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the United
States."); id. at § 1441(a) ("[A]ny civil action brought in
a State court of which the district courts of the United States have
original jurisdiction  may be
removed by defendant or the defendants. . . ."). In addition, it
appearing that MedStar is a Maryland corporation with its principal place
of business in Maryland, while Dr. Zuurbier is domiciled in Virginia,
diversity jurisdiction also existed when the case was removed to federal
court. See id. at § 1332(a) ("The district courts shall have
original jurisdiction of all civil actions where the matter in
controversy exceeds the sum or value of $75,000 . . . and is between (1)
citizens of different States.");*fn4 id. at 1441(a).
Thereafter, however, Dr. Zuurbier dropped her two federal law claims and
added two D.C. defendants, which removes the federal question and raises
new issues with the question of removal jurisdiction.*fn5 She very much
wants this case tried in Superior Court and asks this Court to remand it
A. Federal Question Jurisdiction
The Court is not deprived of jurisdiction to hear and determine
MedStar's motion to dismiss just because Dr. Zuurbier filed an amended
complaint that deleted her federal claims.
When a defendant removes a case to federal court,
whether the federal court possesses jurisdiction
over that case is determined by examining the face
of the complaint and only the face of the
complaint at the time of removal. In non-diversity
cases, if the face of the complaint reveals a
federal question, then the federal court has
jurisdiction. Furthermore, once federal
jurisdiction is established, a plaintiff cannot
precipitate a remand by amending the complaint to
eliminate the grounds upon which jurisdiction is
based. In other words, if a federal question
appears at the moment of removal, the Plaintiff
can do nothing to defeat jurisdiction.
Idoux v. Lamar Univ. Sys., 817 F. Supp. 637, 642 (E.D. TX
1993) (internal citations omitted). Dr.
Zuurbier resists this conclusion. She argues that her amended
complaint, containing DCHRA claims only, essentially erased the first
complaint and deprives this Court of jurisdiction. See Remand
Motion at ¶ 6 ("As a result of Plaintiff withdrawing both claims
arising under the laws of the United States, . . . Defendants do not have
grounds to remove this case to federal court under 28 U.S.C. Code [sic]
§ 1441."); Opp. to MedStar Dismissal Motion at 2 ("[S]ince the basis
for removing this action to federal court has now been
eliminated[,] . . . this matter should now only be heard in the D.C.
Superior Court. . . . [T]he filing of the Amended Complaint and Motion to
Remand has [sic] mooted defendant's Motion to Dismiss the original
complaint."); Surreply at ¶ 1 ("[O]nce Plaintiff filed her
amended complaint (on October 10, 2003), Medstar's [sic] motion
to dismiss the original complaint became moot." (emphasis in
original)). In this argument, Dr. Zuurbier mistakes the relationship
between procedural rules*fn6 and the more fundamental question of the
There is no doubt that § 1331 gives a federal court "original
jurisdiction" over all actions arising under the laws of the United
States, such as the Title VII and Equal Pay Act claims in the original
complaint filed by Dr. Zuurbier. See 28 U.S.C. § 1441(a)
("[A]ny civil action brought in a State court of which the district
courts of the United States have original jurisdiction may be removed
by the defendant. . . ."). If removal is based on federal question
jurisdiction, the citizenship or residence of the parties is irrelevant.
See 28 U.S.C. § 1441(b). Once a case is properly removed, a
plaintiff may not amend the complaint solely to defeat federal
jurisdiction. See, e.g., In re Bridgestone/Firestone,
128 F. Supp.2d 1196, 1201-02 (S.D. Ind. 2001); Brock v. DeBray,
869 F. Supp. 926, 928 (M.D. AL 1994); Johnson v. First Fed. Sav. and Loan
Ass'n of Detroit, 418 F. Supp. 1106,
1108 (D.C. MI 1976); WRIGHT, MILLER & COOPER,
FEDERAL PRACTICE AND PROCEDURE: JURISDICTION 3D § 3738. The court
can, in its discretion, remand to State court if a plaintiff removes
federal claims. See Carnegie-Mellon v. Cohill, 484 U.S. 343, 357
(1988). Dr. Zuurbier's amendment to the complaint does not affect this
Court's jurisdiction to address the initial complaint as it was filed
B. Merits of MedStar Motion to Dismiss
For the convenience of the reader, the Court will immediately turn to
the remainder of the case as it affects MedStar before addressing the
amendments to the complaint that add additional defendants.
MedStar has filed a motion to dismiss or, in the alternative, for
summary judgment, asserting first that it was not Dr. Zuurbier's employer
and second that her Title VII claim is barred due to her failure to
exhaust administrative remedies. Because the Court relies on materials
outside of the pleadings in deciding the motion, it will be treated as a
motion for summary judgment. See FED. R. Civ. P. 12(b).
Summary judgment is appropriate when the record shows that no genuine
issue exists as to any material fact and the moving party is entitled to
judgment as a matter of law. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). Summary judgment is not a
"disfavored legal shortcut[;]" rather, it is a reasoned and careful way
to resolve cases fairly and expeditiously. Celotex Corp. v.
Catrett, 477 U.S. 317, 327 (1986). In determining whether a genuine
issue of material fact exists, the court must view all facts and
reasonable inferences in the light most favorable to the non-moving
party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio,
475 U.S. 574, 587 (1986); Tao v. Freeh, 27 F.3d 635, 638 (D.C.
Cir. 1994). Any factual dispute must be capable of affecting
the substantive outcome of the case to be "material" and "genuine."
See Anderson, 477 U.S. at 247-48; Laningham v. United
States Navy, 813 F.2d 1236, 1242-43 (D.C. Cir. 1987). A party
opposing summary judgment "may not rest upon the mere allegations or
denials of his pleading, but . . . must set forth specific facts showing
that there is a genuine issue for trial." Anderson, 477 U.S. at
MedStar's motion for summary judgment has merit and Dr. Zuurbier does
not contest its facts. Summary judgment will be granted.
Dr. Zuurbier now admits that her Title VII claim is without merit
because she failed to exhaust her administrative remedies before filing a
court suit. See Opp. to MGMC Motion to Strike at 3 ("Plaintiff
dropped her Title VII claim because she failed to exhaust her
administrative remedies. . . . "). In addition, as relevant here, only an
"employer" may be held liable for violations of Title VII, the Equal Pay
Act, or the DCHRA. See 42 U.S.C. § 2000e-2(a);
29 U.S.C. § 206(d); D.C. Code § 2-1402.11(a)(1); see also Cooke-Seals
v. District of Columbia, 973 F. Supp. 184, 186 (D.D.C. 1997).
MedStar avers that it was never the "employer" of Dr. Zuurbier, a fact
she does not contest. Because there is no dispute with respect to this
point, MedStar is entitled to summary judgment. Dr. Zuurbier simply sued
the wrong party.
C. Diversity Jurisdiction and Remand
Dr. Zuurbier argues that her amended complaint should be remanded
because it omits the federal questions and because all defendants are
residents of the forum jurisdiction, i.e., Washington, D.C.*fn7
MGMC and the Medical Center oppose remand and ask the Court instead to
strike the amended complaints. Their Opposition to Remand notes
that the lawsuit was properly removed to federal court under
28 U.S.C. § 1331 and 1332 and argues that this Court retains subject matter
jurisdiction over "the case." Opp. to Remand at 5; see also
Freeport-McMoRAN, Inc. v. K N Energy, 498 U.S. 426, 428 (1991)
("[I]f jurisdiction exists at the time an action is commenced, such
jurisdiction may not be divested by subsequent events."). These
defendants argue that the sole reason for the amendment to the initial
complaint was to defeat federal jurisdiction and that Dr. Zuurbier failed
to request court approval prior to filing her first amended complaint.
MGMC Motion to Strike at 6; Medical Center Motion to Strike at 6.
As discussed above, see infra n.l, the Court accepts for
purposes of this decision MedStar's sworn statement that it is "a
Maryland corporation with its headquarters, base of operations, corporate
offices and principal place of business in Columbia, Maryland." Opp. to
Remand at 4 n.l. Therefore, MedStar properly removed this case.
See 28 U.S.C. § 1441(a), (b) (state court action that meets
the requirements of 28 U.S.C. § 1332 may be removed "if none of the
parties in interest properly joined and served as defendants is a citizen
of the State in which such action is brought."). As the Court has already
decided, Dr. Zuurbier's original complaint controls the jurisdictional
questions and the Court examines only the citizenship of MedStar, the
defendant at the time of removal.
Dr. Zuurbier argues that if MedStar was diverse for purposes of removal
(as the Court accepts), "the addition of [the Medical Center] and MGMC
destroyed removal jurisdiction based on diversity" and necessitates
remand pursuant to 28 U.S.C. § 1447(e). Remand Reply at 5. Dr.
Zuurbier is correct when she argues that if the Court permits addition of
non-diverse defendants, it
must remand the action to state court. See
28 U.S.C. § 1447(e). Dr. Zuurbier is incorrect when she asserts that the
Medical Center and MGMC are non-diverse defendants and that their addition
destroys this Court's jurisdiction. Rather, MedStar-Georgetown and MGMC
are diverse defendants who are residents of the District. See
Remand Reply at 2 (noting that Dr. Zuurbier is a resident of Virginia and
MedStar-Georgetown and MGMC are citizens of the District of Columbia).
After removal has been effected, the addition of diverse defendants who
are citizens of the forum state does not impact the jurisdictional
question of whether removal was proper in the first instance. See
Devore v. Transport Tech. Corp., 914 F. Supp. 355, 357 (W.D. Mo.
1996) (Section 1441(b) does not work retroactively to mandate remand when
diverse defendant who is a citizen of the forum state is joined after
Dr. Zuurbier's confusion seems to arise from her assumption that §
1441(b) is a jurisdictional statute. To the contrary, subject matter
jurisdiction in diversity cases is defined by 28 U.S.C § 1332
(district courts have original jurisdiction where the amount in
controversy exceeds $75,000 "and is between-(1) citizens of different
States. . . ."). The rule governing remand is clear: "If after removal
the plaintiff seeks to join additional defendants whose joinder would
destroy subject matter jurisdiction, the court may deny joinder, or
permit joinder and remand the action to the State court."
28 U.S.C. § 1447(e). When read together, it is apparent that § 1447(e)
does not compel remand because subject matter jurisdiction pursuant to
28 U.S.C. § 1332 continues to exist, even with the joinder of
MedStar-Georgetown and MGMC. Dr. Zuurbier does not share citizenship with
either of the remaining defendants and there is no contention that the
amended complaint does not meet the amount in controversy requirement.
See 28 U.S.C. § 1332; see also Devore, 914 F. Supp.
The Court must still consider whether to continue to exert jurisdiction
over what remains of this matter. As it presently exists, the case
consists solely of state law claims against D.C. citizens. The driving
concerns behind allowing non-local defendants to remove cases to federal
court, i.e., favoritism and unfairness a foreign defendant might
face in the state court, are no longer present in this case. In general,
a plaintiff has a right to choose her forum in which to sue, and retain
that choice absent some other protected interest. The remaining
defendants in this matter have "no interest recognized by a federal
statute in a federal forum." Trask v. Kasenetz, 818 F. Supp. 39
(E.D.N.Y. 1993). Had they been named parties in the original complaint,
28 U.S.C. § 1441(b) would have barred removal on the basis of
diversity. "[B]ecause only state law claims remain, those claims should,
in the interests of comity, be heard by the [Superior Court], which has
greater familiarity with the unique questions of state law currently in
dispute." Woolf v. Mary Kay, Inc., 176 F. Supp.2d 654, 660
(N.D. Tex. 2001).
Defendants have sought to strike and/or dismiss Dr. Zuurbier's amended
complaints because her DCHRA claims are arguably barred by the one-year
statute of limitations or, in the alternative, to have her claims
referred to arbitration pursuant to the mandatory arbitration provision
of her employment agreement. The Medical Center seeks dismissal on the
additional ground that it was never Dr. Zuurbier's employer. Dr. Zuurbier
has also sought leave to file a Second Amended Complaint, which
Defendants oppose. She is represented by experienced counsel who filed
the initial complaint on the last day of the limitations period. Because
principles of "economy, convenience, fairness, and comity" lead this
Court to remand the case, it will leave these arguments for the Superior
Court to decide. Trash, 818 F. Supp. at 45.
For the reasons stated, the allegations against MedStar will be
dismissed with prejudice. The allegations against MGMC and the Medical
Center in the first amended complaint will be remanded to the Superior
Court. A separate Order accompanies this Memorandum Opinion.
For the reasons stated in the Memorandum Opinion separately and
contemporaneously issued this 6th day of February, 2004, it is hereby
ORDERED that MedStar Health's Motion to Dismiss [dkt. no. 5]
is GRANTED; and it is
FURTHER ORDERED that the allegations against MedStar Health
are DISMISSED with prejudice; and it is
FURTHER ORDERED that Rebecca A. Zuurbier's Motion to Remand
[dkt. no. 7] is GRANTED in part and DENIED in part;
and it is
FURTHER ORDERED that this case is REMANDED to the
Superior Court for the District of Columbia.