IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

SUNIL NAYYAR, M.D., : 

 : 

 Plaintiff, : Case No. 2:12-CV-00189 

 : 

 v. : JUDGE ALGENON L. MARBLEY 

 : 

MT. CARMEL HEALTH SYSTEMS, et al., : Magistrate Judge Norah King 

 : 

 Defendants. : 

 

OPINION & ORDER 

I. INTRODUCTION 

 This matter is before the Court on Plaintiff’s Motion to Remand (“Motion”). For the 

reasons set forth herein, Plaintiff’s Motion is DENIED. Furthermore, the Court hereby 

CONSOLIDATES Nayyar v. Mt. Carmel Health System, et al. (“Nayyar II”), case no. 2:12-cv00189, with Nayyar v. Mt. Carmel Health System, et al. (“Nayyar I”), case no. 2:10-cv-00135. 

II. BACKGROUND 

A. Factual History 

Plaintiff, Sunil Nayyar, M.D. (“Nayyar”), is a resident of Franklin County, Ohio and 

Defendant, Mount Carmel Health Systems (“MCHS”), operates four hospitals in Franklin 

County, Ohio. (Compl. ¶¶ 4-6). From July 2006 to July 2009, Mount Carmel Health Systems 

employed Nayyar as a resident physician at its Mount Carmel West Facility in Franklin County. 

(Id. ¶ 4). In July 2009, MCHS terminated Nayyar’s employment. (Id. ¶¶ 23-25). 

On February 16, 2010, Nayyar filed suit against MCHS in this Court alleging his termination 

was motivated by race and national origin discrimination in violation of Title VII and § 1981, 

among other related claims. While that suit, Nayyar I, case no. 2:10-cv-00135, was pending 

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before this Court, on February 13, 2012, Nayyar filed a suit (Nayyar II) in the Franklin County 

Court of Common Pleas substantially based on the same events and facts that are the basis of 

Nayyar I. (Id.) In addition to the claims made in Nayyar I, Nayyar II alleged that MCHS had 

terminated a similarly situated, Caucasian employee named Jonathan Borders. (Id. ¶¶ 53-57). In 

Nayyar II’s fourth claim for relief, under § 4112.02 and § 4112.99 of the Ohio Revised Code,

Nayyar contends MCHS, with the purpose of defeating Nayyar’s claims of race and national 

origin discrimination brought in Nayyar I, terminated Borders only after Nayyar I had identified 

him as a similarly situated person who had not suffered disparate treatment. (Id. ¶¶ 76-79). 

Thus, in Nayyar II, Nayyar sought relief under state law and common law for the same injury 

that was alleged in Nayyar I, as well as relief for the “depriv[ation]” of his race and national 

origin discrimination claims Nayyar I. (Id. ¶ 79). 

B. Procedural History 

On March 1, 2012, MCHS filed a Notice of Removal, asking that Nayyar II be removed from 

the Franklin County Court of Common Pleas to this Court on the basis of federal question 

jurisdiction (28 U.S.C. § 1331) under 28 U.S.C. §§ 1441 and 1446. Nayyar II was referred to 

this Court owing to the case’s similarity to Nayyar I, which continues to pend before the Court. 

Nayyar now moves to remand Nayyar II to the Franklin County Court of Common Pleas, 

alleging that there is no substantial federal question. Therefore, the threshold issue before this 

Court is whether Nayyar II raises a substantial federal question such that this Court has subject 

matter jurisdiction under 28 U.S.C. § 1331. This issue has been briefed by the parties and is now 

ripe for decision. 

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III. STANDARD OF REVIEW 

 Removal of cases from state to federal court is governed by 28 U.S.C. § 1441(a), which 

provides that “any civil action brought in state court of which the district courts of the United 

States have original jurisdiction may be removed by the defendant or the defendants to the 

district court of the United States . . . where such action is pending.” Moreover, “the party 

asserting jurisdiction ‘must carry throughout the litigation the burden of showing that he is 

properly in court.’” Serras v. First Tennessee Bank Nat. Ass’n, 875 F.2d 1212, 1215 (6th Cir. 

1989), (quoting McNutt v. General Motors Acceptance Corp. of Indiana, 298 U.S. 178, 189 

(1936)). Federal district courts have original jurisdiction “of all civil actions arising under the 

Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Jurisdiction is 

determined at the time of removal, and subsequent events, “whether beyond the plaintiff’s 

control or the result of his volition, do not oust the district court’s jurisdiction once it has 

attached.” Williamson v. Aetna Life Ins. Co., 481 F.3d 369, 375 (6th Cir. 2007), (quoting St. 

Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 293 (1938)). 

IV. LAW & ANALYSIS 

A. Motion to Remand 

 In moving to remand, Nayyar argues that in Nayyar II he has not asserted a federal claim, 

as all his claims are based on state law. Furthermore, Nayyar contends that to the extent his 

state-law claims implicate federal law, the federal question is not a substantial one. MCHS 

counters with the argument that Nayyar’s fourth claim in Nayyar II rests on whether he has a 

valid claim under Title VII, which, it argues, is a substantial federal question that here is 

outcome determinative. Nayyar’s fourth claim, under the heading of “[Ohio] Revised Code 

4112.02 and 4112.99,” is: 

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77. Plaintiff identified in another lawsuit a [Nayyar I] similarly situated 

Caucasian employee [Borders] who had a long history of misconduct and 

problems in the internal medicine residency program. 

78. After Plaintiff identified a similarly situated Caucasian employee, 

defendants entered into a conspiracy to target and terminate the Caucasian 

employee for the purpose of defeating Plaintiff’s race and national origin claims. 

79. As a direct and proximate result of Defendants’ conduct, Plaintiff has been 

deprived of a rightful cause of action and relief in a separate action and has 

suffered other losses and damages. 

(Compl. ¶¶ 77-79). 

 In Grable & Sons Metal Products, Inc. v. Darue Engr. & Mfg, 545 U.S. 308 (2005), the 

Supreme Court established a three-part test to determine whether a state-law claim which 

contains an embedded federal claim is within the jurisdiction of the federal courts. The Sixth 

Circuit has summarized the Grable test and distilled the substantial-federal-question doctrine 

into three parts: (1) the state-law claim must necessarily raise a disputed federal issue; (2) the 

federal interest in the issue must be substantial; and (3) the exercise of jurisdiction must not 

disturb any congressionally approved balance of federal and state judicial responsibilities. 

Mikulski v. Centerior Energy Corp., 501 F.3d 555, 568 (6th Cir. 2007). 

 Nayyar’s state-law claim is that “[a]s a direct and proximate result of Defendants’ 

conduct, [Nayyar] has been deprived of a rightful cause of action and relief in a separate action 

and has suffered other losses and damages.” (Compl. ¶79). The “rightful cause of action and 

relief in a separate action” refers to Nayyar I, which Nayyar acknowledges is “a suit based on 

Title VII alleging [Nayyar’s] termination was a result of racial discrimination.” (Id. ¶52). Thus, 

whether Nayyar has a claim for deprivation “of a rightful cause of action” necessarily raises the 

issue of whether Nayyar had a “rightful cause of action” under Title VII in Nayyar I. The 

alleged Title VII violation remains a disputed issue in Nayyar I and the state court could not 

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resolve the claim for deprivation of a rightful cause of action without first interpreting Title VII, 

a federal statute, and deciding whether Title VII had been violated. Therefore, the fourth claim 

in Nayyar II satisfies the first prong of the Grable test: it necessarily raises a disputed federal 

issue. 

 The next prong of the Grable test asks whether the federal interest in the adjudication of 

Nayyar’s Title VII claim is substantial. In Mikulski, the Sixth Circuit highlighted four factors the 

Supreme Court has identified that affect the substantiality of the federal interest: (1) whether the 

case includes a federal agency, and particularly, whether that agency's compliance with the 

federal statute is in dispute; (2) whether the federal question is important (i.e., not trivial); (3) 

whether a decision on the federal question will resolve the case (i.e., the federal question is not 

merely incidental to the outcome); and (4) whether a decision as to the federal question will 

control numerous other cases (i.e., the issue is not anomalous or isolated). Mikulski v. Centerior 

Energy Corp., 501 F.3d 555, 570 (6th Cir. 2007). The Sixth Circuit went on to add that, “[w]hile 

certain of these factors may be more applicable than others in any given set of circumstances, no 

single factor is dispositive and these factors must be considered collectively, along with any 

other factors that may be applicable in a given case.” Id. 

 Here, the second, third, and fourth factors demonstrate the federal interest is substantial, 

and the first does not apply. While Nayyar’s case does not involve a federal agency, the federal 

question is important because it involves the interpretation of Title VII, the nation’s primary antidiscrimination statute. Furthermore, a decision as to whether a Title VII violation occurred could 

resolve the case. If there was no Title VII violation, Nayyar’s claim that he has been deprived of 

a rightful cause of action fails. The Title VII question is not “merely incidental.” Finally, a 

decision as to the Title VII question would control other cases. Whether Nayyar’s termination 

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was motivated by his race or national origin would impact similarly situated plaintiffs seeking to 

recover for unlawful discrimination in the future. More immediately, a decision on Nayyar’s 

Title VII claim in Nayyar II by a state court while Nayyar I is pending in this Court would risk 

the state and federal courts arriving at inconsistent decisions regarding the same Title VII claim. 

Therefore, under the substantiality of federal interest factors in Mikulski and considering the 

federal interest in rendering consistent interpretations of federal law, Nayyar II satisfies the 

second prong of the Grable test: the federal interest is substantial. 

 The third prong of the Grable test requires that a federal court exercising jurisdiction over 

a state-law claim with an embedded federal issue determine that the exercise of jurisdiction does 

not disturb any congressionally approved balance of federal and state judicial responsibilities. 

The primary factor is whether Congress provided for a federal cause of action under the federal 

statute in question. Mikulski v. Centerior Energy Corp., 501 F.3d 555, 568 (6th Cir. 2007). At 

the same time, courts must also consider whether the exercise of jurisdiction would “open[] the 

federal courts to an undesirable quantity of litigation.” Id. at 573. 

 The exercise of jurisdiction over Nayyar’s state-law claims by this Court does not upset 

the congressionally approved balance of federal and state judicial responsibilities. Congress 

specifically created a federal cause of action under Title VII, the very cause of action in Nayyar 

I. It clearly intended that federal courts adjudicate Title VII claims. Moreover, many states 

have, like Ohio, enacted statutes similar to Title VII. Plaintiffs in discrimination cases before 

this Court frequently couple Title VII claims with claims under the Ohio Civil Rights Act. The 

exercise of jurisdiction over those state-law claims by this Court has not yet opened this Court 

“to an undesirable quantity of litigation.” Thus, the exercise of jurisdiction over Nayyar II

satisfies the third and final prong of the Grable test. 

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 In sum, the fourth claim in Nayyar II involves a substantial federal question because it 

necessarily raises a disputed federal issue, the federal interest in the issue is substantial, and the 

exercise of jurisdiction does not disturb any congressionally approved balance of federal and 

state judicial responsibilities. Therefore, the exercise of subject matter jurisdiction over Nayyar 

II by this Court is proper. 

B. Rule 42 Consolidation 

Consolidation of cases is governed by Fed. R. Civ. P. 42 (a). Rule 42 grants a federal 

court the authority to “join for hearing or trial any or all matters at issue in the actions” if the 

actions before the court have a common question of law or fact. A court may consolidate cases 

with or without the consent of the parties. Cantrell v. GAF Corp., 999 F.2d 1007, 1010-11 (6th 

Cir. 1993). 

 When a court decides whether to consolidate cases, the Sixth Circuit directs the court to 

consider: 

[W]hether the specific risks of prejudice and possible confusion [are] overborne 

by the risk of inconsistent adjudications of common factual and legal issues, the 

burden on parties, witnesses and available judicial resources posed by multiple 

lawsuits, the length of time required to conclude multiple suits as against a single 

one, and the relative expense to all concerned of the single-trial, multiple-trial 

alternatives. 

Cantrell v. GAF Corp., 999 F.2d 1007, 1011 (6th Cir. 1993), (quoting Hendrix v. Raybestos–

Manhattan, Inc., 776 F.2d 1492, 1495 (11th Cir.1985)). In the present case, the risk of 

inconsistent adjudications is high because the fourth claim in Nayyar II is determined by whether 

Nayyar has a valid Title VII claim in Nayyar I. Furthermore, these cases involve the same 

parties and require testimony from nearly all the same witnesses. To allow the cases to proceed 

separately would waste of judicial resources, as well as burden the parties and witnesses with 

excessive litigation. 

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 Thus, the Court, without dispute from the parties, consolidates Nayyar I and Nayyar II in 

the interests of consistent adjudication and the conservation of judicial resources. 

V. CONCLUSION 

 For the foregoing reasons, Plaintiff’s Motion is DENIED. The Court hereby 

CONSOLIDATES Nayyar v. Mt. Carmel Health System, et al., case no. 2:12-cv-00189, with 

Nayyar v. Mt. Carmel Health System, et al., case no. 2:10-cv-00135. 

 IT IS SO ORDERED. 

 s/ Algenon L. Marbley 

 Algenon L. Marbley 

 United States District Judge 

Dated: September 10, 2012 

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