Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

McGinty v. Nazon

United States District Court, S.D. Ohio, Eastern Division

May 30, 2018

PETER McGINTY, Plaintiff,
v.
ADRIENNE NAZON, Defendant.

          Deavers Magistrate Judge

          OPINION AND ORDER

          GEORGE C. SMITH, JUDGE

         This matter is before the Court upon Defendant Adrienne Nazon's Motion to Dismiss for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted (“Nazon's Motion to Dismiss”) (Doc. 3), as well as Plaintiff Peter McGinty's Motion to Stay this case pending a determination of Nazon's statutory immunity in the Ohio Court of Claims (“McGinty's Motion to Stay”) (Doc. 7). Nazon's Motion to Dismiss is fully briefed and ripe for disposition; Nazon filed a response to McGinty's Motion to Stay, but McGinty did not file a reply and the time to do so has now elapsed. For the following reasons, Nazon's Motion to Dismiss is GRANTED and McGinty's Motion to Stay is DENIED.

         I. BACKGROUND

         Plaintiff Peter McGinty, a white male, commenced an action in this Court on January 4, 2018, asserting that his direct supervisor, Defendant Adrienne Nazon, constructively discharged him from his employment with The Ohio State University's department of University Marketing based on his race and gender. (Doc. 1, Federal Compl.). McGinty's Complaint asserts four counts: employment discrimination in violation of the equal protection clause of the Fourteenth Amendment under 42 U.S.C. § 1983 (Count 1), and race and gender discrimination and retaliation claims under Ohio Revised Code (“R.C.”) Chapter 4112 (Counts 2-4).

         The same day that McGinty commenced the action in this Court, he also commenced an action in the Ohio Court of Claims seeking damages from the State of Ohio and The Ohio State University for the same conduct complained of in the federal action. (Doc. 3-2, Court of Claims Compl.). The two complaints are nearly identical and assert the same four counts.

         Nazon now moves to dismiss McGinty's federal Complaint for lack of subject-matter jurisdiction on grounds of statutory immunity under R.C. § 9.86 (as pertains to McGinty's state law claims under Chapter 4112) and for failure to state a claim on grounds of waiver under R.C. § 2743.02(A)(1) (as pertains to McGinty's § 1983 claim). McGinty also moves to stay this case pending a determination of Nazon's immunity by the Court of Claims.

         II. STANDARDS OF REVIEW

         A. Dismissal for lack of subject-matter jurisdiction under Rule 12(b)(1)

         Federal Rule of Civil Procedure 12(b)(1) provides for dismissal when the court lacks subject matter jurisdiction. Without subject matter jurisdiction, a federal court lacks authority to hear a case. Thornton v. Southwest Detroit Hosp., 895 F.2d 1131, 1133 (6th Cir. 1990). Motions to dismiss for lack of subject matter jurisdiction fall into two general categories: facial attacks and factual attacks. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). A facial attack under Rule 12(b)(1) “questions merely the sufficiency of the pleading, ” and the trial court therefore takes the allegations of the complaint as true. Wayside Church v. Van Buren Cty., 847 F.3d 812, 816 (6th Cir. 2017) (quoting Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990)). To survive a facial attack, the complaint must contain a short and plain statement of the grounds for jurisdiction. Rote v. Zel Custom Mfg. LLC, 816 F.3d 383, 387 (6th Cir. 2016).

         A factual attack is a challenge to the factual existence of subject matter jurisdiction. No. presumptive truthfulness applies to the factual allegations. Glob. Tech., Inc. v. Yubei (XinXiang) Power Steering Sys. Co., 807 F.3d 806, 810 (6th Cir. 2015). When examining a factual attack under Rule 12(b)(1), “the court can actually weigh evidence to confirm the existence of the factual predicates for subject-matter jurisdiction.” Glob. Tech., Inc. v. Yubei (XinXiang) Power Steering Sys. Co., 807 F.3d 806, 810 (6th Cir. 2015) (quoting Carrier Corp. v. Outokumpu Oyj, 673 F.3d 430, 440 (6th Cir. 2012)). The plaintiff has the burden of establishing jurisdiction in order to survive the motion to dismiss. DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004); Moir v. Greater Cleveland Regional Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990).

         B. Dismissal for failure to state a claim under Rule 12(b)(6)

         Under the Federal Rules, any pleading that states a claim for relief must contain a “short and plain statement of the claim” showing that the pleader is entitled to such relief. Fed.R.Civ.P. 8(a)(2). To meet this standard, a party must allege sufficient facts to state a claim that is “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A claim will be considered “plausible on its face” when a plaintiff sets forth “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         Rule 12(b)(6) allows parties to challenge the sufficiency of a complaint under the foregoing standards. In considering whether a complaint fails to state a claim upon which relief can be granted, the Court must “construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff.” Ohio Police & Fire Pension Fund v. Standard & Poor's Fin. Servs. LLC, 700 F.3d 829, 835 (6th Cir. 2012) (quoting Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007)). However, “the tenet that a court must accept a complaint's allegations as true is inapplicable to threadbare recitals of a cause of action's elements, supported by mere conclusory statements.” Iqbal, 556 U.S. at 663. Thus, while a court is to afford plaintiff every inference, the pleading must still contain facts sufficient to ‚Äúprovide a plausible basis for the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.