Jairath v. Dyer

• Decision Date: 16 September 1998
• Docket Number: No. 97-9153,97-9153
• Citation: 154 F.3d 1280
• Parties: 8 A.D. Cases 979, 13 NDLR P 240, 12 Fla. L. Weekly Fed. C 88 Vimal JAIRATH, Plaintiff-Appellant, v. Wallace K. DYER, Dr., M.D., Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1280

154 F.3d 1280

8 A.D. Cases 979, 13 NDLR P 240, 12

Fla. L. Weekly Fed. C 88

Vimal JAIRATH, Plaintiff-Appellant, v. Wallace K. DYER, Dr., M.D., Defendant-Appellee.

No. 97-9153.

United States Court of Appeals,

Eleventh Circuit.

Sept. 16, 1998.

Milton Dale Rowan, Rowan & Neis, Atlanta, GA, for Plaintiff-Appellant.

Michael Pannier, Karl M. Braun, Jonathan Marigliano, Sullivan, Hall, Booth & Smith, Atlanta, GA, for Defendant-Appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before ANDERSON and BIRCH, Circuit Judges, and PAINE ^*, Senior District Judge.

ANDERSON, Circuit Judge:

This appeal requires this court to determine whether the district court has subject-matter jurisdiction over a discrimination claim brought by a person who was denied medical assistance. Vimal Jairath ("Jairath") brought suit pursuant to O.C.G.A. § 51-1-6, for damages based upon a breach of a duty created under the Americans with Disabilities Act ("ADA"), pursuant to 42 U.S.C. § 12182(a). The defendant, Dr. Wallace K. Dyer, asserting that the case involved a substantial question of federal law, filed a notice of removal in federal court. Following the district court's denial of Jairath's motion for remand, defendant moved for summary judgment which the district court granted. Jairath appeals both the district court's denial of his motion for remand and the granting of defendant's motion for summary judgment. We determine that, in light of the Supreme Court's decision in Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986), the district court lacked subject-matter jurisdiction over this case because Jairath's claims do not "arise under" federal law. See 28 U.S.C. § 1331.

I. BACKGROUND AND COURSE OF PROCEEDINGS

In March 1996, Jairath went to defendant's office to have a Gore-Tex implant procedure performed on his face. Jairath, who is HIV positive, wanted the implants because the effects of his HIV status had made his face appear "thin and gaunt." Fearing that his appearance created a "badge" of the HIV virus, he sought the procedure to return his face to a more normal, healthy state.

After learning that Jairath was HIV positive, defendant refused to perform the implant procedure. Defendant stated in his deposition that his decision not to consult with Jairath concerning the procedure was premised on the fact that Jairath was HIV positive, which, according to defendant, increased the risk of infection and made the procedure inadvisable in light of its cosmetic purpose.

Jairath filed a complaint in the Superior Court of Fulton County, Georgia on July 3, 1996. Jairath filed a suit for damages pursuant to O.C.G.A. § 51-1-6. Section 51-1-6 states:

When the law requires a person to perform an act for the benefit of another or to refrain from doing an act which may injure another, although no cause of action is given in express terms, the injured party may recover for the breach of such legal duty if he suffers damage thereby.

The ADA created the duty which served as the basis for Jairath's state law claim. ¹ Defendant removed the action, 28 U.S.C. § 1441(a), from the Superior Court of Fulton County, Georgia to the United States District Court for the Northern District of Georgia. ² Plaintiff then filed a motion for remand pursuant to 28 U.S.C. § 1447(c). Determining that the federal interest inherent in Jairath's state law claim was substantial, the district court denied Jairath's motion for remand on December 16, 1996. The district court determined that its decision was not undercut by the Supreme Court's holding in Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986).

Following discovery, defendant moved for summary judgment presenting several grounds which, defendant argued, entitled him to judgment on the merits. Accepting defendant's position on each alternative ground, the district court granted summary judgment on the merits for defendant. Because we conclude that the district court lacked subject matter jurisdiction over this case, we address only that issue. We vacate the judgment of the district court, and remand with instructions to grant Jairath's motion to remand to state court. ³

II. DISCUSSION

We review de novo the district court's denial of the plaintiff's motion to remand as it involves a question of subject-matter jurisdiction. Pacheco de Perez v. AT&T Co., 139 F.3d 1368, 1373 (11th Cir.1998). Federal courts have original jurisdiction of all civil actions that arise under the Constitution or laws of the United States. 28 U.S.C. § 1331. Such federal-question jurisdiction may be based on a civil action alleging a violation of the Constitution, or asserting a federal cause of action established by a congressionally created expressed or implied private remedy for violations of a federal statute. City of Huntsville v. City of Madison, 24 F.3d 169, 171-72 (11th Cir.1994). 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. Id. at 173-74 (analyzing the relevant Supreme Court cases, including Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986)). The same analysis of the federal-question jurisdiction issue is relevant in the removal context of the instant case. Merrell Dow, 478 U.S. at 808, 106 S.Ct. at 3232. ⁴

In the instant case, Jairath does not assert a cause of action created by federal law. Rather, he asserts a state law cause of action for damages pursuant to O.C.G.A. § 51-1-6. Defendant asserts that a substantial federal question exists because federal law, namely, the ADA, creates the duty which Jairath claims has been violated. ⁵ Thus, the instant case does not fall within the vast majority of federal question cases involving the assertion of a federally created cause of action. Rather, we must determine whether the instant case fits within that more limited category of cases where federal-question jurisdiction may also be available if a substantial question of federal law is a necessary element of a state law cause of action.

The Supreme Court has most recently addressed this issue in Merrell Dow. There, the plaintiffs alleged, inter alia, that the defendant drug company was negligent, and that its violation of the federal Food, Drug and Cosmetic Act ("FDCA") constituted a rebuttable presumption of negligence. The violation alleged by plaintiff was that the drug company had misbranded its product, and provided inadequate warning that its use was potentially dangerous. Thus, violation of the federal law was an element of the state law claim.

The Court acknowledged its prior statement in Franchise Tax Board ⁶--"that a case may arise under federal law 'where the vindication of a right under state law necessarily turned on some construction of federal law.' " Merrell Dow, 478 U.S. at 808-09, 106 S.Ct. at 3232 (quoting Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 9, 103 S.Ct. 2841, 2846, 77 L.Ed.2d 420 (1983)). However, the Court said that that statement must be "read with caution," Merrell Dow, 478 U.S. at 809, 106 S.Ct. at 3232; that "determinations about federal jurisdiction require sensitive judgments about congressional intent, judicial power, and the federal system," id. at 810, 106 S.Ct. at 3233; that there was a "need for prudence and restraint in the jurisdictional inquiry," id.; that the fact that a federal issue was an element of a state law claim did not "automatically confer federal-question jurisdiction," id. at 813, 106 S.Ct. at 3234, but rather, that the analysis must entail "careful judgments about the exercise of federal judicial power." Id. at 814, 106 S.Ct. at 3235.

In Merrell Dow, the Court focused on the fact that Congress had not created a private remedy for violation of the federal duty with respect to misbranding. The Court placed great significance on the congressional intention not to provide a private federal remedy. The Court stated:

[I]t would flout congressional intent to provide a private federal remedy for the violation of the federal statute. We think it would similarly flout, or at least undermine, congressional intent to conclude that the federal courts might nevertheless exercise federal-question jurisdiction and provide remedies for violations of that federal statute solely because the violation of the federal statute is said to be a "rebuttable presumption" or a "proximate cause" under state law, rather than a federal action under federal law.

Id. at 812, 106 S.Ct. at 3234 (footnotes omitted). The Court continued:

Given the significance of the assumed congressional determination to preclude federal private remedies, the presence of the federal issue as an element of the state tort is not the kind of adjudication for which jurisdiction would serve congressional purposes and the federal system.... We simply conclude that the congressional determination that there should be no federal remedy for the violation of this federal statute is tantamount to a congressional conclusion that the presence of a claimed violation of the statute as an element of a state cause of action is insufficiently "substantial" to confer federal-question jurisdiction.

Id. at 814, 106 S.Ct. at 3235.

We believe that Merrell Dow supports the conclusion in this case that the district court did not have subject matter jurisdiction over Jairath's cause of action seeking damages under state law. In the instant case, as in Merrell Dow, Congress chose not to provide the damages remedy which Jairath seeks. Although a private right of action for injunctive relief does exist under the ADA, it is uncontested that...