Alahverdian v. Grebinski et al

Filing 14

***WITHDRAWN per Notation Order of 11/8/2013*** REPORT AND RECOMMENDATIONS; ORDER FOR AMENDED COMPLAINT - It is respectfully recommended that Defendants' Motion to Dismiss for lack of subject matter jurisdiction as to the entire case be denied and Defendants' Motion to Dismiss the Fourth Claim for Relief for failure to state a claim should be GRANTED. Objections to R&R due by 11/7/2013. Plaintiff is ORDERED to file an amended complaint not later than November 1, 2013. Signed by Magistrate Judge Michael R Merz on 10/21/2013. (kpf1) Modified text per Not. Order on 11/8/2013 (tt).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
NICHOLAS ALAHVERDIAN,
Plaintiff,

:

Case No. 3:13-cv-132

District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

-vs:
MARY J. GREBINSKI, et al.,
Defendant.

REPORT AND RECOMMENDATIONS; ORDER FOR
AMENDED COMPLAINT

This case is before the Court on Defendants’ Motion to Dismiss for lack of subject matter
jurisdiction as to the entire case, for dismissal of the Fourth Ground for Relief for failure to state
a claim upon which relief can be granted, and for a more definite statement (Doc. No. 6).
Plaintiff, having obtained counsel and having taken three extensions of time to do so (Doc. Nos.
9, 10, 11 and notation orders granting), has filed a two-paragraph Response (Doc. No. 12) and
Defendants have filed a Reply in support (Doc. No. 13).

Subject Matter Jurisdiction

Filing this matter pro se, Plaintiff claimed to be a citizen of the Commonwealth of
Massachusetts (Complaint, Doc. No. 3, PageID 68). He asserted subject matter jurisdiction
under 28 U.S.C. § 1332 on the basis of diversity of citizenship and an amount in controversy in
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excess of $75,000. Id. ¶ 1, PageID 69. He further asserts business relationships with firms in
Providence, Rhode Island; Washington, D.C., and Boston, Massachusetts; and a former
relationship with Harvard University1 as an undergraduate degree candidate. Id. ¶ 3. The
Complaint is signed by Plaintiff, but is not verified.
The burden of persuasion on a Rule 12(b)(1) motion is on the party asserting jurisdiction.
Thomson v. Gaskill, 315 U.S. 442 (1942); Moir v. Greater Cleveland Regional Transit Authority,
895 F.2d 266 (6th Cir. 1990); 5A Wright and Miller, Federal Practice and Procedure, Civil 2d
§1350 (1990). A facial attack on subject matter jurisdiction is proper under Rule 12(b)(1) Golden
v. Gorno Bros., 410 F.3d 879, 881 (6th Cir. 2005), but requires the Court to assume the truth of
all allegations made by a plaintiff. DLX, Inc., v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004),
citing RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1133-35 (6th Cir. 1996);
United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994); and Ohio Nat'l Life Ins. Co. v. United
States, 922 F.2d 320, 325 (6th Cir. 1990).
Because neither party has submitted any evidence on the question of Plaintiff’s residence,
the Court must assume the truth of his allegation that he is a resident of the Commonwealth of
Massachusetts. On that basis there is complete diversity of citizenship and the motion to dismiss
for lack of subject matter jurisdiction should be DENIED.

Failure to State a Claim

Defendants seek dismissal of the Fourth Claim for Relief which, incorporating the prior
fifty-eight paragraphs of the Complaint, alleges Defendants have “regularly subjected Mr.

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Although Plaintiff does not assert it, the Court takes judicial notice that Harvard University is located in
Cambridge, Massachusetts.

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Alahverdian to harassment, explicit remarks, and unwelcome degradation” and “threatened to
perpetuate legal proceedings against him.” (Complaint, Doc. No. 3, ¶ 60, PageID 83-84.)
Neither counsel has cited any precedent on whether such a claim is actionable. Plaintiff’s
counsel construes Defendants’ argument as being that “the harassment claims are not based in
federal law.” (Motion, Doc. No. 12, PageID 115). That, however, is not Defendants’ point as
the Court understands it. The entire Complaint is grounded in diversity of citizenship and it is
therefore Ohio substantive law which governs, not federal law. A federal court exercising
supplemental or diversity subject matter jurisdiction over state law claims must apply state
substantive law to those claims. 28 U.S.C. § 1652; Gasperini v. Center for Humanities, Inc., 528
U.S. 415, 427, n. 7 (1996); Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), overruling Swift
v. Tyson, 41 U.S. 1 (1841)(Story, J., holding that “the laws of the several states” in the Judiciary
Act of 1789 means only the statutory law of the States).
“The purpose of a motion under Rule 12(b)(6) is to test the formal sufficiency of the
statement of the claim for relief; it is not a procedure for resolving a contest about the facts or
merits of the case.” Wright & Miller, FEDERAL PRACTICE AND PROCEDURE: Civil 2d §1356 at
294 (1990); see also Gex v. Toys “R” Us, 2007 U.S. Dist. LEXIS 73495, *3-5 (S.D. Ohio, Oct.
2, 2007); Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993), citing Nishiyama v. Dickson
County, Tennessee, 814 F.2d 277, 279 (6th Cir. 1987). Stated differently, a motion to dismiss
under Fed.R.Civ.P. 12(b)(6) is designed to test the sufficiency of the complaint. Riverview
Health Institute LLC v. Medical Mutual of Ohio, 601 F.3d 505, 512 (6th Cir. 2010).
The test for dismissal under Fed. R. Civ. P. 12(b)(6) has recently been re-stated by the
Supreme Court:
Factual allegations must be enough to raise a right to relief above the
speculative level, see 5 C. Wright & A. Miller, Federal Practice and
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Procedure § 1216, pp. 235-236 (3d ed.2004)(“[T]he pleading must
contain something more ... than ... a statement of facts that merely
creates a suspicion [of] a legally cognizable right of action”), on the
assumption that all the allegations in the complaint are true (even if
doubtful in fact), see, e.g., Swierkiewicz v. Sorema N. A., 534 U.S. 506,
508, n. 1, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); Neitzke v. Williams,
490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989)(“ Rule
12(b)(6) does not countenance ... dismissals based on a judge's disbelief
of a complaint's factual allegations”); Scheuer v. Rhodes, 416 U.S. 232,
236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (a well-pleaded complaint
may proceed even if it appears “that a recovery is very remote and
unlikely”).
Bell Atlantic Corp. v. Twombly, 550 U.S.544, 555 (2007).
[W]hen the allegations in a complaint, however true, could not raise a
claim of entitlement to relief, “‘this basic deficiency should ... be
exposed at the point of minimum expenditure of time and money by the
parties and the court.’” 5 Wright & Miller § 1216, at 233-234 (quoting
Daves v. Hawaiian Dredging Co., 114 F. Supp. 643, 645 (D. Hawaii
1953) ); see also Dura [Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336,
125 S.Ct. 1627, 161 L.Ed.2d 577 (2005)], at 346, 125 S.Ct. 1627, 161
L. Ed. 2d 577; Asahi Glass Co. v. Pentech Pharmaceuticals, Inc ., 289
F. Supp. 2d 986, 995 (N.D.Ill.2003) (Posner, J., sitting by designation)
(“[S]ome threshold of plausibility must be crossed at the outset before a
patent antitrust case should be permitted to go into its inevitably costly
and protracted discovery phase”).
Twombly, 550 U.S. at 558 (overruling Conley v. Gibson, 355 U.S. 41, 45-46 (1957), and
specifically disapproving of the proposition from Conley that “a complaint should not be
dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle him to relief”); see also Association of
Cleveland Fire Fighters v. City of Cleveland, Ohio, 502 F.3d 545 (6th Cir. 2007). In Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009), the Supreme Court made it clear that Twombly applies in all
areas of federal law and not just in the antitrust context in which it was announced.
While Plaintiff’s Complaint is thorough in its allegation of acts committed by the
Defendants, those acts are not actionable under Ohio law under the rubric of “harassment.”

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Therefore Defendants’ Motion to Dismiss the Fourth Claim for Relief for failure to state a claim
should be GRANTED.

Motion for Definite Statement

Defendants’ Motion for Definite Statement is well taken. It is impossible to tell from the
Complaint which acts Plaintiff alleges were done by which of the Defendants. Rather than file a
separate definite statement, however, Plaintiff is ORDERED to file an amended complaint not
later than November 1, 2013.
October 21, 2013.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985).

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