The opinion of the court was delivered by: Judge Gregory L. Frost
Magistrate Judge Mark R. Abel
This matter is before the Court for consideration of a combined motion to dismiss and motion for judgment on the pleadings (Doc. # 13) filed by Defendant, the Ohio Department of Insurance. Plaintiffs, Chantana and Sokham Kung,*fn1 have not responded to the motion. For the reasons that follow, the Court finds the combined motion not well taken.
Beginning in April 1998, Plaintiff Chantana E. Kung worked as an Information Technology Consultant 1 for Defendant, the Ohio Department of Insurance. On April 1, 2005, however, Defendant terminated Kung.
Kung subsequently filed a discrimination charge with the Equal Employment Opportunity Commission ("EEOC") on October 13, 2004. The EEOC issued a Right to Sue letter on August 30, 2005, and Kung initiated the instant action on November 21, 2005. (Doc. # 1.) He subsequently moved to amend his pleading to add his wife Sokham as a plaintiff and to assert a total of four claims for himself (construed broadly, wrongful termination based on race discrimination, breach of contract, racial discrimination, intentional infliction of emotional distress) and one claim for Sokham (described as for delivering a pre-term infant as a result of stress brought about by her husband's wrongful termination). (Doc. # 24, at 2-3.)
On June 6, 2006, Defendant filed a motion to dismiss Counts Four and Five, the intentional infliction of emotional distress and the derivative pre-term delivery claim, respectively, and for judgment on the pleadings on Count Two, the breach of contract claim. (Doc. # 13.) Plaintiffs failed to respond to the motion,*fn2 which is now ripe for disposition.
Defendant moves to dismiss Counts Four and Five pursuant to Federal Rule of Civil Procedure 12(b)(1), which provides for dismissal for lack of subject matter jurisdiction. Under the Federal Rules of Civil Procedure, "[p]laintiffs have the burden of proving jurisdiction in order to survive a Rule 12(b)(1) motion ...." Weaver v. Univ. of Cincinnati, 758 F. Supp. 446, 448 (S.D. Ohio 1991) (citing Moir v. Greater Cleveland Reg'l. Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990)). See also Rapier v. Union City Non-Ferrous, Inc., 197 F. Supp. 2d 1008, 1012 (S.D. Ohio 2002) (citing McNutt v. General Motors Acceptance Corporation of Indiana, Inc., 298 U.S. 178, 189 (1936); Rogers v. Stratton Indus., Inc., 798 F.2d 913, 915 (6th Cir. 1986)) ("The plaintiff bears the burden of establishing, by a preponderance of the evidence, the existence of federal subject matter jurisdiction"). Moreover, this Court may resolve any factual disputes when adjudicating a defendant's jurisdictional challenge. See Moir, 895 F.2d at 269.
Proceeding under this standard, Defendant's motion states that Defendant's Rule 12(b)(1) motion targets Counts Four and Five. (Doc. # 13, at 1.) The memorandum in support of the motion repeats this assertion. (Doc. # 13, at 6.) Defendant carefully qualifies its motion, however, by noting that it is "assuming these Counts allege state law causes of action." (Doc. # 13, at 4.)
The problem with this assumption is that the initial complaint and the amended complaint are unclear. Defendant is correct in framing the issue as it does because the pleadings do not specify whether federal or state claims are involved. Although the Court can hazard a guess, dispositive motions should not turn on a best estimate of what cause of action is involved.
The Court therefore sua sponte ORDERS Plaintiffs to file, by August 21, 2006, a more definite statement of its causes of action, clarifying whether federal or state law is involved and the specific statutory or common law causes of action asserted in each of the five counts. See Fikes v. City of Daphne, 79 F.3d 1079, 1083 n.6 (11th Cir. 1996) ("The district court had the inherent authority to require the appellant to file a more definite statement. Such authority, if not inherent in Rule 12(e), is surely within the district court's authority to narrow the issues in the case in order to speed its orderly, efficient, and economic disposition. "); cf. Taylor v. City of Cleveland, No. 1:05cv2983, 2006 WL 1982968, at *1 n.3 (N.D. Ohio July 13, 2006) (noting that when faced with an unclear complaint, "the Court may, sua sponte, order Plaintiff to file an amended complaint that clarifies his claims"). Failure to comply with this Order shall result in sanctions, including the possible striking of Plaintiffs' pleading.
In light of this Order, the Court DENIES WITHOUT PREJUDICE the Rule 12(b)(1) aspect of Defendant's motion. (Doc. # 13.) Defendant remains free to raise a ...