The opinion of the court was delivered by: Judge Gregory L. Frost
Magistrate Judge Norah McCann King
This matter is before the Court for consideration of various motions to dismiss (Docs. # 17, 18, 19, 20) filed by Defendants The Ohio State University; Children's Research Institute; Philip Johnson, director of Children's Research Institute Division of Molecular Medicine; and current Ohio State University employees, Thomas Hansen, Frederick Sanfilippo, and Carole Anderson. Also before this Court is a memorandum in opposition (Doc. # 29) filed by Plaintiff Kunal Saha and a reply memorandum (Doc. # 30) filed by Defendant The Ohio State University. For the reasons that follow, this Court finds the motions well taken in regard to the federal claims and declines to exercise jurisdiction over the remaining state law claims.
The Court will assume for the purposes of deciding the instant motion that the well-pleaded allegation in the Complaint are true. Plaintiff, Kunal Saha, is a naturalized citizen of the United States who resides in Ohio. Defendant The Ohio State University ("OSU") is an institution of higher learning located in Columbus, Ohio. Defendant Children's Research Institute ("CRI") is a non-profit organization also located in Columbus, Ohio. Defendant Philip Johnson, M.D., ("Johnson") is the Director of CRI's Division of Molecular Medicine. Defendant Thomas Hansen, M.D., ("Hansen") is the Chairman of OSU's Department of Pediatrics, Defendant Frederick Sanfilippo ("Sanfilippo") is the Dean of OSU's College of Medicine, and Defendant Carole Anderson ("Anderson") is the Vice-Provost of OSU.
In June 1998, OSU appointed Saha for five years as a tenure-track assistant professor in the Department of Pediatrics. Saha concurrently worked for CRI as a member of the Division of Molecular Medicine. In that latter capacity, Saha's primary focus was HIV and AIDS research.
Saha took a leave of absence from work from January 2002 through April 2002. Upon returning to work, Saha learned that his funding was going to be cut and that Johnson had accused him of inadequate monitoring of his students. Saha's difficulties continued in his reappointment review and culminated in his tenure review when, in an October 2003 vote, OSU's Department of Pediatrics denied Saha's application for tenure. The OSU College of Medicine tenure committee then voted 11-0 to deny Saha promotion with tenure in January 2004.
Following his unsuccessful appeal of that decision, OSU informed Saha in June 2004 that his salary was being reduced and that he was in a one-year terminal period. His last day of employment with OSU would be June 30, 2005. Saha pursued another appeal, and this appeal resulted in a remand to the department for re-voting by a majority of eligible department members. The June 2005 re-vote again produced an adverse tenure decision. Saha's employment with OSU therefore ended on June 30, 2005. Because Saha was no longer an employee of OSU, CRI also terminated his employment in July 2005. Subsequently, in September 2005, Saha learned that he was not permitted to appeal the second denial of tenure.
Saha filed an initial suit against OSU and CRI on July 12, 2005, but this Court dismissed that action on October 26, 2005 for lack of subject matter jurisdiction and for failure to exhaust administrative remedies. See Saha v. The Ohio State University, No. 05-CV-675, 2005 WL 2806318 (S.D. Ohio Oct. 26, 2005). On March 13, 2006, Saha re-filed against OSU and CRI and named as additional defendants Johnson and Hansen. (Doc. # 2.) Saha subsequently filed his First Amended Complaint on June 28, 2006 and named as additional defendants Sanfilippo and Anderson. (Doc. # 3.) He alleges in the ten-count amended complaint that OSU and CRI discriminated against him based on his national origin and race in violation of Title VII. (Doc. # 3 ¶¶ 92-100.) He also asserts claims under 42 U.S.C. § 1983 against CRI, Hansen, Johnson, and Sanfilippo (Doc. # 3 ¶¶ 81-91), as well as claims against OSU and CRI under 42 U.S.C. § 1981 for breach of contract (Doc. # 3 ¶¶ 101-04) and for unjust enrichment under state law against OSU and CRI (Doc. # 3 ¶¶ 119-21). Finally, Saha asserts additional state law claims for race and national origin discrimination against OSU, CRI, Johnson, Hansen, Sanfilippo, and Anderson (Doc. # 3 ¶¶ 105-10) and for intentional infliction of emotional distress against all defendants (Doc. # 3 ¶¶ 111-18).
Defendants have all filed motions to dismiss. (Docs. # 17, 18, 19, 20.) Briefing on the motions has closed, and the motions are now ripe for disposition.
Federal Rule of Civil Procedure 12(b)(1) provides that an action may be dismissed 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 Corp. 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.
Pursuant to Federal Rule of Civil Procedure 12(b)(5), a trial court may, upon motion, dismiss a complaint for failure to make proper service of process within the 120 days after the complaint is filed as required by Federal Rule of Civil Procedure 4(m). Proper service on individuals within a judicial district of the United States must conform to Federal Rule of Civil Procedure 4(e), which states:
Unless otherwise provided by federal law, service upon an individual from whom a waiver has not been obtained and filed, . . . may be effected in any judicial district of the United States:
(1) pursuant to the law of the state in which the district court is located, or in which service is effected, for the service of a summons upon the defendant in an action brought in the courts of general jurisdiction of the State; or
(2) by delivering a copy of the summons and of the complaint to the individual personally or by leaving copies thereof at the individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or law to receive service of process.
In contrast to Rule 12(b)(1) and Rule 12(b)(5), Federal Rule of Civil Procedure 12(b)(6) requires an assessment of whether a plaintiff has set forth claims upon which a court may grant relief. For a Rule 12(b)(6) analysis, a court must construe a complaint in favor of the plaintiff, accept the factual allegations contained in the complaint as true, and determine whether the plaintiff can prove any set of facts in support of his or her claims. Goad v. Mitchell, 297 F.3d 497, 500 (6th Cir. 2002) (citing Kostrzewa v. City of Troy, 247 F.3d 633, 638 (6th Cir. 2001)); Weaver, 758 F. Supp. at 448 (citing Jones v. Sherrill, 827 F.3d 633, 638 (6th Cir. 2001)). In other words, "a complaint will be dismissed pursuant to Rule 12(b)(6) only if there is no law to support the claims made, or if the facts alleged are insufficient to state a claim, or if on the face of the complaint there is an insurmountable bar to relief." The Limited, Inc. v. PDQ Transit, Inc., 160 F. Supp. 2d 843, 843 (S.D. Ohio 2001) (citing Rauch v. Day & Night Mfg. Corp., 576 F.2d 697, 702 (6th Cir. 1978)).
In his memorandum in opposition, Saha concedes that the Eleventh Amendment bars his § 1981 claim against OSU and that the Ohio Court of Claims has exclusive jurisdiction over all of his state law claims against OSU. (Doc. # 29, at 2.) Therefore, Saha's sole remaining claim against OSU is that OSU discriminated against him because of his race and national origin, and as a result, denied him tenure in violation of Title VII.OSU continues to move for dismissal of this claim on the grounds that Saha failed to effect service of process on it within 120 days of filing the complaint.
Saha neither argues that he effected service within the time allowed by the Civil Rules nor that there is good cause for his failure to effect service. (Doc. # 29, at 5.) Instead, citing unsubstantiated "good faith efforts to effect proper service," Saha contends that the Court in its discretion should simply grant him an extension of time in which to effect service even in the absence of good cause. (Doc. # 29, at 10.)
Rule 4(m) requires this Court to undertake a two-part analysis. Stewart v. Tenn. Valley Authority, 238 F.3d 424 (6th Cir. 2000).First, the court must determine whether the plaintiff has shown good cause for failure to effect service. See id. If he has, then "the court shall extend the time for service for an appropriate period." Id. Second, if the plaintiff has not shown good cause, the court must either (1) dismiss the action or (2) direct that service be effected within a specified period of time. See id. The Court has discretion to permit late service even absent a showing of good cause. Id. (citing Henderson v. United States, 517 U.S. 654, 662 (1996)).
Saha has failed to persuade this Court that good cause exists to excuse his failure of service. His failure to perfect service belies his contention that he can and would effectuate service with ease if granted additional time. Accordingly, the Court in its discretion dismisses without prejudice the entirety of his claims against OSU under Rule 12(b)(5). See Nafziger v. McDermott Int'l, Inc., 467 F.3d 514, 521-22 (6th Cir. 2006) (affirming dismissal in light of failure to present good ...