United States District Court, S.D. Ohio, Eastern Division
Deavers Magistrate Judge
OPINION AND ORDER
C. SMITH, JUDGE
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.
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).
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.
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.
STANDARDS OF REVIEW
Dismissal for lack of subject-matter jurisdiction under Rule
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.
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).
Dismissal for failure to state a claim under Rule
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).
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 “provide a plausible basis
for the ...